« AnteriorContinuar »
The partial performance which the law con- could substitute in lieu of their note that of ansiders as an obstacle to rescission is a partial other person or firm, regardless of the question performance as between the parties.
of solvency or value, even though aided by the Benson v. Corell, 52 Iowa, 137.
collateral notes as agreed upon, for the sole and The requirement that parties should be placed conclusive reason that their engagements are in statu quo as a condition precedent to a rescis- for notes signed by them. Such a rule needs sion, does not hold in cases of fraud-these are no elaboration. an exception to the rule.
The argument, then, leads us to the query, 2 Parsons, Cont. 780; Hendrick son v. Hen. Without reference to the statutory assigoment drickson, 51 Íowa, 68 See also American Wine for the benefit of creditors, could Young Bros. Co. v. Brasher, 4 McCrary, 247.
have so assigned the contract, without the conWhen the buyer becomes insolvent, the seller sent of defendant, as to substitute another in may with bold delivery of the goods until he is their stead for performauce, and whose note paid or secured.
must be accepted in lieu of theirs by the de Mihills Mfg. Co. v. Day, 50 Iowa, 250; Ben fendant? This leads us to consider the aujamin, Sales, $ 1016.
thorities cited. Counsel for appellant quotes An assignce does not stand in all respects in from Code. $ 2084, as follows: "Instruinents the place of his assignor. He cannot in all in writing, by wbich the maker promises . matters continue the business of the assignor. to pay or deliver any property or labor, or ac"It can only be allowed from the necessity of knowledges any money or labor or property to the case, and where it is manifestly for the be due, are assignable by indorsement thercon, benefit anii advantage of the creditors and or by other writing; and the assiguee shall bave thosc interested in the estate.”
a right of action in his own name.” Counsel Burill, Assigtim. pp. 600-603.
then say: "Under the very broad language of The trustee bas a right to elect to complete this provision, this court bas held that all conthe contract by paying cash within a reason- tracıs are assignable, even in cases where, by alle tiroe.
the terms of the instrument, its assignment is 2 Addison, Coot. p. 483. See also 1 Wharton, probibited.” and reference is made to Moor. Cont. & 293; Benjamin, Sales, $ 1119; Smith man v. Collier, 33 Iowa, 138, and First Nat. v. Gordon, 2 N. Y. Legal Obs. 325; Streeter v. Bank v. Carpenter, 41 lowa, 518. Sumner, 31 N. H. 558.
Section 20-4 is a part of the chapter on
“Notes and Bills;" and the section deals only Granger, J., delivered the opinion of thc with instruments in writing, and tells how they court:
may be transferrell, and who may sue thereon. 1. Tłu point receiving the principal atten. In both of the cases to which reference is made tion in argument is as to the effect on the con the court had under consideration the validi'y tract of the insoivenry of Young Bros., and of the transfer of an instrument in writing for the assigonient for the benefit of their credit the payment of money; and the language used ors. Perhaps it may be better stated as a in each case is not too broad, if properly limit. query, thus. Was the insolvency and assigned by the subject of its appiicatiou. In Moor. ment a justiucation for the defendant Company man v. Collier the language relied on is tbat il rescinding ibe contract? Toe answer to this "all instruments, under our statute, are assignquestion is a practical determination of the case, able;" and the statement takes as althority Reas to the plaintiff's cause of action. Its con- vision, $ 1790, which corresponds with section sideratiou bas led counsel for appellant to con- 2094 of the Code, and the language of the case sidei at some length the law as to the assign is only as to “instruments.” It does not say, ment of consacts, and it is urged that the “all contracts.” The cause evidently means all assigoment iu question is within its contempla- instruments for the paymeut or delivery of tion A salieni feature of the case is the man- money, property or labor, as specified in the per oi method of payment by Young Bros. for section and chapter. The case of First Nat. the seeders. The contract was for 900 seeders, Bank v. Carrienter was an action on a written to be delivered on the orders of Young Bros., guaranly, which was beld assignable; and in for which the firm was to give its notes. its discussion this language is used: “Gener. Young Bros. were to deliver the seeders to pur ally, by the common law, a guaranty is not chasers from them, and settle for the same pegotiable, or in any manner transferable, so as either by receiving cash or notes. If cash, it to enable the assignee to maintain an action was to be turned over to defendant, to apply on thereon. . . . But under our Siatutes this and the potes of Young Bros. If notes, they were every other kind of contract is assignale." It to be turned over to defendant as collateral se- cites for support Code, ss 2082-2087, inclusive; curity for the notes already given by Young and it is said in the opinion that even in a case Brus. It is said in argument that the district where, by the terms of the instrument, its as. court held the rescission valid because, after signment is prohibited, it may be assigned." the assignment, Young Bros. were not in a The sections referred to are the six first sections position to give their notes in pursuance of the in the chapter on “Notes and Bills," which terms of the contract; from which we infer this chapter, of course, bas reference 10 other in. view of the court: That the defendaut was struments than votes and bills; and the provisentitled, under the contract, to the notes of ions, in brief, as to assignments are that a Young Bros., aided collaterally by the potes party entitled to recover on an instrument takeu by them in the sales of the seeders. As or an open account may transfer bis right þetween defeudant and Young Bros., nothing of recovery to another; but there is nothing less could be regarded as a compliance with the in the language of the chapter to indicate contract. It could hardly be claimed that a legislative intent to authorize a party to a Young Bros., in a settlement for the machines, Iconiract by assigument to transfer his obliga
tions to perform to a third party, and thus | upon cash, payment therefor. To our minds, effect bis release, without the consent of bis the record does not present the question for obligee.
consideration. The contract was not to pay Let us suppose that A contracts in writing to cash, but to settle by pote. After insolvency render service, as a traveling salesman, to B, defendant was not required to anticipate a readifor a specified compensation. Under the law, Dess for cash payment; and, if either Young if B shall be indebted to A on the contract, A Bros. or plaintiff desired to make such payment, may assign his claim. But suppose A should a tender to tbat effect should have been made. assign bis contract to C, wbereby. C was to re. Soon after the assignment, defendant, as it ceive the pay and render the service. Must B should. gave notice ibat because of the insolvaccept that? B bas contracted for the services ency and dissolution of the partnership theof A. He is entitled to that; and, beforę B can contract was rescinded. This notice was to be required to pay either to A or bis assigns, Young Bros. If the assignee then desired to he must bave what he contracted for. The pay in cash, and have the seerlers delivered, law will permit a person to assign what is his, the proposition or tender should have been either in possession or by right of action, but made. But neither the plearlings in the case, not his obligations to anotber; and such is the nor the findings of the court, deal wilb this substance of the provisions of the Statutes on question. The case in the district court seemsthe subj-ct of assigoments referred to.
to bave been tried upon an issue as to the right Thus we think ihat Young Bros. could not, of the assignee to carry out the contract by without reference to the assignment for the giving bis note in lieu of that cf Young Bros. benefit of creditors, bave so assigned the con. The pleadings and findings bave to do with a tract in question, without the consent of the willingness ou lhe part of the assignee to carry defendani, as to have required defendant to out the contract; but it appears only to have have accepted in lieu of theirs the notes of their been a carrying out of the contract as Young assignee.
Bros. were authorized to do, and not by nay. We may then inquire if there is anything in ments in cash. A reference to the eleventh the statuiory assignment for the benefit of finding shows that the assignee has never in creditors to change ibe rule? It is urged that any manner indicated to defendant a purpose the statutory provision as to assignments for or desire to secure or perform the contract. tbe benetit of creditors is broad enough to en- Insolvency, in such cases, implies an inability able the assignee to execute any contract that to perform, on which tbe defendant might rely might come into his bands. The difficulties of until otherwise assured. the case are not with the provisions of the State Appellant contends, with much zeal, tbat the ute as to the authority of the assignee. They mere fact of insolvency does not put an end to are more with his incapacity or indisposition to the contract of sale; and several autborities are execute the contract. We should not lose sight cited in support of the rule. It is not necessary of the real question under consideration by a for us to state an opinion on a state of facts so contemplation of wbat the assignee could bave broad. The case Re Phænix Bessemer Steel Co., done if defendant, after insolvency, bad been L. R. 4 Ch. Div. 108, cited by appellant, bears willing to deliver the sceders. It may be con- upon the question of when the facis will justify ceded that the contract could thus bave been a seller on credit in refusing to deliver because executed by the assignee on behalf of Young of the subsequent insolvency of the purchaser. Bros. But the query is, Had the defendant The facts in that case are that the Carnforth the right to refuse delivery of the seeders after Iron Company, in October, 1874, coutructed to insolvency and assignment? In other words, supply irov to be delivered monthily, and to be had it the riglit to terminale the contract? If paid for in installments, but on credit
. The it were a case of insolvency without the assign- installments were delivered till in February, ment, we think it would be conceded on au- 1875, when the purchasing company called a thority that the obligation to deliver could meeting of its creditors, and said it was carry. only be on a tender of a cash payment in lipu ing on business at a lo-s, and was short of capiof notes agreed upon. Parilee v. k'anady, 100 tal, and asked for an extension of time, which N. Y. 121, 1 Cent. Rep. 250.
the creditors refused. Tire selling company Does the fact of tlie assignment affect the then refused to deliver the irou except upon rights of the defendant? The reason of the cash payments, and the purchasing company rule in cases of insulvency is too manifest to then resciniled the contract. The selling comneed explanation. A person wbo contracts to pany then asked for damage, wbich the court deliver properiy on a credit, in anticipation of held could not be recovered, holding that there a solvent purchiaser, ought not to be required was no such declaration of insolvency as toto deliver it after insolvency, which is a practi- justify the selling company in refusing to decal confession by the purchaser of his inability I liver. The syllabus of ibe case, wbicb appears to comply with 'Ibe terms of the contract. If to be supported by the opinion, deduces a rule. to the fact of insolvency is added that of an as- as follows: "In order 10 jus ify the vendors, signment for the benefit of creditors, why in such a case, in exercising their right of resbould the rule be changed? If the delivery is fusal to deliver, there must be such proof or excuseul in case of insolvency because the prope admission of the insolvency of the purchasers. erty will not be paid for, the same reasons exist at the time as amous to a declaration of in. for excusing the delivery after assigoment. tention pot to pay for tbe goods." The case If the insolvent did not possess a right to en. does not appear to be an authority against the force ibe contract except by cash payment, be right of refusal to deliver where the fact of incould convey no greater right to his assignee. solvency exists, and is so evidenced as to The argument deals with the question of the amount to a declared purpose not to pay. It right of appellant to a delivery of the seeders I is the fact of the insolvency that seems to be the turning point in the case, and that would / were on the witness stand, and neither of tbem surely seem to be the reasonable rule.
depied baving received the goods; that, the The case of Morgan v. Bain, L. R. 10 C. P. balance of defendant's counterclaim not being 15, also cited by appellant, was one for the de- denied, the defendant should recover the sum livery of iron on credit; and the purchasers of $327.98, less the sum of $300 due the plaintiff became insolvent. Lord Coleridge, Ch. J., in for commission earned by Young Bros. under his opinion, said: "It is not disputed that the contract of 1883, declared on in plaintiff's upon the occurrence of insolvency tbe vendor petition.” would not be bound to deliver to the insolvent It is urged that the proofs are not sufficient purchaser an installment of the iron becoming to sustain the finding. The argument con. due, without a tender of the price." Brett, J., cedes a practical dispute in the testimony, and in the same case, said, witbout committing the finding has the force of a verdict by the himse!. to the theory that the mere fact of in- jury. The evidence is such that we cannot solvency would per se put an end to the con interfere. tract, that such fact, with that of potice to the 3. It is next said that it was error to enter & seller of the insolvency, would justify an as- personal judgment against the assignee. The sumptior by the seller that the purchaser in assignment is in these words: “The court tended to abandon the contract. . The notice erred in ren lering a personal judgment against upon which be relied, and gave his adherence the plaintiff berein for the balance due upon to the holding in tbat case, was the commence- defendant's counterclaim, for the reason that ment of insolvent proceedings under the Bunk- such judgment is contrary to law and the evi. rupi Act. In this case the fact of the insolv. dence. Said defendant was entitled only to ency is unqı.estioned, and a like notice is the establishment of his claim as a creditor of given by an iveolvent proceeding for the ben said estate." The assignment is not sustained efit of creditor, Hence it seems the defend- by the record. The judgment of the court is jot, in this casa, is wiibin any of the rules merely the establishment of a claim against citel. Otier authorities cited by appellant are the estate. It is not a personal judgment. It OC. more favorable to his position.
would only be subject to pro rata payment, 2 Delendant presented a counterclaim, like other claims. The wording of the judg basist on ar open account alleging a balance ment is that such be and is hereby established due of $27.98, as to wbich the court established as a claim against the estate of Young Bros., a claim against tbe estate of Young Bros. for and against the said Rappleye as their as$27, based on the following finding of facts: signee.” These words bave no other meaning "Twelfth. On defendant's counterclaim, the lban tbe establisbment of the claim. court finds that defendant received orders It would appear that appellant has based frow Young Bros. for the goods mentioned in this assignment rather upon statements in the the account under dates September 5, 6, 8, 15 abstract with reference to the judgment than ang 1?, 1784; that tbese orders were treated in upon record of the judgment as copied in the the usua: was the usual directions given for abstract. sbipping, aná the goods charged on the books Atirmed to Young Bros.; that both of Young Bros.
GEORGIA SUPREME COURT. W H. PATTERSON, et al., Piffs, in Err., diction cannot exercise it without plead 0.
ings suitable for the purpose. Anna Leckie, Defendant, and Bryan LAW. 2. The exercise of a power of appointRENCE, Claimant.
ment by will on the part of one baving a life
Interest in trust property with power of appoint(....Ga.....)
ment as to tbe portion remaining after her death, 1. A court of law having equity juris. to confirm title to a person wbo had previously
NOTE.-Erecution of power to appoint by will. furnish the criterion, Schley v. McCeney, 36 Md.
268. A wife may have power to appoint certain prop- The appointee under a special power must be erty by will and pot by deed or by deed and not competent to have taken immediately from the by will R: Harvey's Estate, L. R. 13 Ch. Div. donor. Robinson v. Hardcastle, 2 T. R. 241. 21.
If a married woman has a life estate, and ehe is li the power authorize an appointment by deed, clothed with a general power of appointment over its execution by her may be " immediate” during the corpus of the property, and she exercises the ber lifetime; if by will only, then the disposition can- power, the appointed property is not thereby made pot take effect until after her death. See Hulme v. applicable to the payment of her debts, excepting Tebant, 1 Lead. Cas. in Eq. 4th Am. ed. 690: Bradley only those which are fraudulent, that is, her liav. Westcott, 13 Ves. Jr. 445, 451; Reid v. Shergold, bilities arising from fraud. Vaughan v. Vander10 Ves. Jr. 370, 380; Anderson v. Dawson, 15 Ves. Jr. stegen, 2 Drew, 165, 363; Shattock v. Shattock, L. R. 522: Heatley v. Thomas, Id. 596; Richards v. Cham- 2 Eg. 182, 35 Beav. 489: Hobrlay v. Peters, 28 Beav. bers, 10 Ves. Jr. 580; Sockett v. Wray, 4 Bro. Ch. 354, 356; Blatchford v. Woolley, 2 Drew. & Sm. 204; 481; Lee v. Mugzeridge, 1 Ves. & B. 118; Nixon v. But see London Chartered Bank of Australia v. Nixon, 2 Jones & La T. 416; and see Noble v. Wil Lemprière, L. R. 4 P. C. 572; 3 Pon. Eq. Jur. 30. lock, L. R. 8 Ch. 778; Bishop v. Wall, L. R. 8 Ch. While a wife may execute a power of appointDiv. 194; 3 Pom. Eg. Jur. 31.
ment conferred upon her, in favor of her busband, The same formalities are not necessarily requisite yet she cannot convey ber land direcily to him exo in executing a power, as in disposing of separate cept as allowed by Code, 89 1805, 1836. Sims v. Ray, property; the terms prescribed by the power should | 96 N. C. 87. 7 L. R. A.
purchased it for a valuable consideration from person or persons, or for such purpose or pur. the appointor and trustee under an order of poses, as she, the said Anna, by ber last will court, does not make the property assets of the and testament, duly executed, may designate
appointor's estate liable in equity for her debts. and appoint. "But, should the said Anna die 8. Property disposed of by will under without having made and executed such last
a power of appointment cannot be held will and testament, then the said property, or liable for the appointor's debts even if it other- any property which may be then beld in lieu wise might be, unless the appointor's assets are thereof, shall be equally divided, share and insufficient to pay such debts.
share alike, between Samuel Leckie, the son,
and Louisa Jones Leckie, the daughter, of the November 18, 1889.)
said Samuel and Anna, the child or children of
a deceased child to stand in place of and rep"RROR to the Superior Court for Richmond resent the parent." And power was given to
claimant and against plaintiff in an action to to sell the property, the proceeds to be reiorecover a demand against a decedent's estate vested in other property. Samuel Leckie, Sr., out of property alleged to be assets thereof. died July 9, 1874. Samuel Leckie, Jr., died Affirm’d.
July 20, 1877, leaving issue. The facts suficiently appear in the opinion. On the 14th of April, 1886, the judge of the
Mr. Leonard Phinizy, for plaintiffs in superior court, at chambers and in vacation, error:
granted an order autborizing the sale to Bryan The execution of a general power of appoint. Lawrence of the property conveyed by said ment converts the estate into assets for the deed of trust, the consideration being $2,500, payment of debts, and the creditor has a pref- and the sale private. Notice of the application erence over the appointee.
for this order of sale was not given to the minor Cutting v. Cutting, 20 Hun, 360; Tallmadge beirs-at-law, and they were not present, or repv. Sill, 21 Barb. 34; Harrison v. Battle, 1 Dev. resented by guardian ad litem, when the order & B. Eq. 213; Jenney v. Andrew8, 6 Madd. 264; was granted. On the 15th of April, 1896, a Vaughair v. Vanderstegen, 2 Drew. 165; 1 deed was made to Bryan Lawrence, reciting Story, Eq. Jur. $ 176, note; 2 Sugd. Powers, that it was in pursuance of said deed of irust and 28, 29; 2 Wms. Exrs. 1685; Schouler, Exrs. p. order of court. This deed was signed by Anda 222; 4 Kent, Com. p. 340; Clapp v. Ingraham, Leckie and by Luke Dunn, trustee. The 120 Mass. 200-202; Johnson v. Cushing, 15 N. money arising from the sale of said property H. 298, 41 Am. Dec. 694; Com. v. Du field, 12 was partly used in paying off incumbrances in Pa. 279 281; Barford v Street, 16 Ves, Jr. 135. the nature of taxes and judgments against the
The anpointee will be treated as a trustee for trust property, and $500 of the same was inthe creditors,
vested in the name of Like Dunn, trustee, in Johnson v. Cushing, supra; Leigh v. Smith, stock of the Mutual Real Estate & Building 8 Ired. Eq. 442, 42 Am. Dec. 182.
Association, which stock tbe trustee obtained The court below had before him all the leave to sell by an order of the superior court, papers and all the evidence, was sitting both granted on the 16th of December, 1886. It is as judge and jury, and could have framed an not known what became of the remainder of equitable judgment or decree. No objection the purchase money. was made to the forum, the pleadings, or the On the 9th of February, 1888, Anna Leckie evidence, in the court below. It is too late to made a will, in which she devised to Bryan make it here.
Lawrence the land already conveyed to him Furr v. Eddleman, 80 Ga. 660.
under the order of sale. On the 20th of FebMr. Bryan Cumming, for claimant: ruary, 1888, she died. On the 13tb of Decem
In Prindies v. Cochrane, 112 U. S. 351 (28 ber, 1888, this property was levied on under & L. ed. 763), the court says that under the com- fi
. fa, obtained upon a judgment in favor of mon law
a judgment against the party bav. Paiterson & Co. against Anna Leckie, July 2, ing a power of appointment, with the estate 1877. A claim was thereupon interposed by vested in him until and in default of appoint- Lawrence. The case was submitted to the ment, was defeated by the subsequent execu- judge of the superior court, without the intertion of the power in favor of a mortgagee.” vention of a jury, for bis judgment and decis
See Com. v. Du field, 12 Pa. 277; Story, Eq. ion thereon. Upon the trial, William H. FlemJur S 176, note 3: 4 Kent, Com. 340; Cook v. ming testified that he drew Mrs. Leckie's will Walker, 15 Ga. 457, 462.
and was a witness to it; that he thought she
made it in order to confirm the title in Law. Blandford, J., delivered the opinion of the rence to the property for wbich be paid $2,500 court:
ou the 15th of April, 1886; that the witness at On the 12th of March, 1866, Samuel Leckie, the time of said sale had paid the proceeds to of Richmond County, conveyed to John Cos- tbe trustee in her presence; and that she made kery, as trustee, and his successors in office, a the will freely because she thought she was ceriain tract or parcel of land in the City of morally bound to give a good title if she could Augusta, "in trust, for the sole and separate possibly do so. The court held and decided use, benefit and beloof of Anna Leckie, wife that Lawrence got a good title as against the of the said Samuel Leckie, wholly free from, creditors of Mrs. Leckie, and that his claim and not subject to, the debts, contracts or lia must therefore be sustained. To this judgment bilities, past, present or future, of the said of the court below the plaintiffs in execution Samuel Leckie, or any future busband of the excepted, and assigned error therein. said Anna Leckie, for and during the term of It is insisted by counsel for the plaintiffs in her natural life, and, on ber death, to such error that, inasmuch as this property was con
veyed to a trustee for the use of Mrs. Leckie and the mere issue, thus made up, as to wheth. during ber lifetime, with a power of appointer the property is or is not subject. It is cer. ment in her by will, and, inasmuch as she exer- taivly a proceeding at law, and not an equitacised that power by her will, the property was ble proceeding. Tbere are no allegations by assets for the payment of ber debts. Whether, which a court of law could exercise the jurisaccording to the current of authority, this prop- diction of a court of equity. Before a court of erty would be equitable assets for the payment law could exercise such juris liction, there must of the debts of the appointor in this case would be suiticient pleadings to authorize it to do so. depend: (1) upon whether Mrs. Leckie bad any A power of appointment is not an absoluto other property sullicient to pay her debts; (2) right of property. Holmes v. Coghill, 7 Ves. upon wheiber this power of appointment was Jr. 506. an absolute right of property; and (3) upon It is not an estate, and has none of the elewhether the appointee was a volunteer, or a ments of an estate. Burleigh v. Congh, 52 N. bona fide purchaser of the property appointed | H. 267; Goodill v. Brigham, 1 Bos. & P. 197; to him.
Eiton v. Straw, 18 N. H. 320; 4 Kent, Com. It is very manifest, in this case, that the 319; Pulliam v. Byril, 2 Strob. Eq. 131; Livingpower of appointment was exercised by the tesston v. Murray, 68 N. Y. 455; Williman v. tatrix, on account of the fact that the property Holmes, 4 Rich. Eq. 475. had been previously sold by the testairix and An unexecuted power of appointment vests ber trustee to the claimant, for a valuable con- no interest in the donee, wheiber annexed to a sideration; and this would take the case out of particular esiate or not, and therefore is not asthe general rule that wbere property is con sets for the payment of the debts of the deveyed to one for life, with a general power of ceased donee. Harrison v. Battle, 1 Dev. & B. appointment by deed or will, and such power Eq. 213. is exercised, the property is converted into as- We do not decide whether the execution of sets in equity for the payment of the appoivtor's a general power of appointment would convert creditors. This disiinction is clearly recog- an estate into assets in equity for the payment nized in the au! horities bereinafter referred to. of debts. Upon this subject see Cutting v. Cut It is manifest frora this record that the power ting, 20 Hun, 360; Tallmalge v. Sill, 21 Barb. of appointment was exercised in favor of Law. 34; Harrison v. Batlle, 1 Dev. & B. Eq. 213; rence, because of the purchase which he bad Iarrington v. Harte, i Cox, Ch. 131; Jenney previously made from the appointor and ber v. Andrers, 6 Madd. 264; Fleming v. Buchanan, trustee, and for which he bad paid a valuable 3 De G. M. & G. 976; Vaughan v. Vanlerstegen, consideration; aod, furthermore, this property 2 Drew, 165; Shattock v. Shattock, L. R. 2 Eq. caopot be considered assets of the appointor, 187; Wales v. Bowdish (V1.) 4 L. R. A. 819; 1 so as to make it liable for ber debts in a court Story, Eq. Jur. $ 176, note; 2 Sugd. Powers, of law. All the authorities treat it as only 28, 29; 2 Wms. Exrs. 6th Am. ed. 1695, 1686. equitable assets. According to most of them, In George v. Milbanke, 9 Ves. Jr. 190, and this power or appointment is such an equitable Dart v. Mildlehurst, 3 Aik. 377, it is held that relation to the property as would make it liable it is against volunteers only that creditors have in equity for the appointor's debts. Where the this preference in equily, and a bona fide pur. power of appointment is not exercised, all the cbaser under a voluntary appointee would be authories agree that the property is not liable, protected. We think the cases referred to are either in law or in equily, for the payment of sufficient to illustrate the rule we have laid the delis of th• person in whom the power re. down in this case. sided.
We are forced to the conclusion that the The piaintiffs in error contend that, inasmuch judgment of the court below is right: (1) beas equitable jurisdiction is conferred upon cause the proceeding is not an equitable pro. courts gi law in this State, there is no necessity ceeding to subject this properly to ibe payment for them to resort to a court of equity. This of the debts of the donee; (2) because ihe apmight be true if the plaintiffs in error had had pointee in this case was not a volunteer, but plendior suitable for the purpose, but in this was a bona fide purchaser: and (3) because it is case ibère are no pleadings, except the execu: not shown that decerised did not have suilicient tiol and the entry of the sheriff thereon, and assets to pay plaintill's claim. the claim interposed by the defendent in error, Judgment atfirmed.
UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF ILLINOIS.
NOTR.-Statutes; constitutional provisions as to title | Co. (Pa.) 1 L. R. A. 361 ; People v. McElroy (Mich.) of Act.
2 L. R. A. 609; Astor v. New Yor Arcarie R. Co. (N.
Y.) 2 L. R. A. 789; Evansville v. State (Iod.) 4 L. R. See notes to Titusville Iron Works v. Keystone Oil A. 93.