Abstract of Decisions.

SUPREME COURT OF OHIO.

Homestead.

MORTGAGE OF INTEREST OF WIFE OF DEBTOR.-A mortgagor of premises, no part of which constitutes the family homestead of the mortgage debtor, at the time of the execution and delivery of the mortgage, although not executed by the wife, is not affected by the subsequent selection and occupancy of the premises mortgaged, as the homstead of the mortgagor. As against such mortgage, the wife of the mortgage debtor is not entitled to an assignment of a homestead in the premises mortgaged. Gibson vs. Mundell.

Insurance.

WAIVER OF DEFENSE BY COMPANY.—In an action against an insurance company to recover the amount of a fire policy, a defense on the gronnd that the insured failed to make and furnish the insurer with the preliminary proofs of loss in the manner and within the time required by the policy is not waived by setting up and relying upon other defenses not inconsistent therewith. Farmers' Ins. Co. vs. Frick.

Negotiable Instrument.

1. NOTE OCTAINED DY FRAUD ; MISREPRESENTATION AS TO NATURE OF INSTRUMENT: NEGLIGENCE.-In an action against the maker, by an indorsee of a negotiable promissory note, who purchased the same for a valuable consideration, before maturity, and without notice of any fraud or infirmity as between the original parties, the defendant is not liable where it is shown: (1) That at the time of signing and delivering the note he was induced, by fraudulent representations as to the character of the paper, to believe that he was signng aid delivering an instrument other than a promissory note. (2) That his ignorance of the true character of the paper was not attributable, in whole or in part, to his own negligence in the premises. De Camp vs. Hamma.

2. PROMISSORY NOTE OBTAINED BY FRAUD: NEGLIGENCE.-In an action against the maker, by a bona fide indorsee, before due and for value, of a negotiable promissory note, the defendant is liable, if guilty, of negligence in the execution thereof, although he did not intend to sign a note, and was induced, through fraudulent representations as to its character, to believe that the instrument executed was one of a different purport. Ross vs. Doland.

3. NEGLIGENCE, LEAVING BLANK: ESTOPPEL.-A person who negligently signs and delivers to another a printed form of a negotiable promissory note containing blanks, without knowing it to be such, is estopped, as against a subsequent bona fide holder for value and before due, from denying authority in the person to whom it was delivered to fill the blanks. Ib.

4. SIGNING NOTE WITHOUT READING: ESTOPPEL: NEGLIGENCE.-A person possessed of the ordinary faculties and ability to read, signed and delivered a negotiable promissory note without knowing it to be such, but without read

ing the same, having an opportunity to do so, relying solely on the representation of the payee that the party was an instrument other than a note. Held, as against a bona fide holder before maturity for value, such maker will not be permitted to deny the due execution of the note. Winchell vs. Crider.

5. TITLE TO DEFENSE.-The debtor of a bank, of which A is cashier, transferred a negotiable note, in payment of his indebtedness, to A by special indorsement, and thereupon the bank, to enable A to bring suit thereon, assigned its interest in the note to him. Held, that A might maintain an action on the note in his own name, notwithstanding he may be accountable to the bank for the proceeds when collected. Such indorsement and transfer having been made before maturity of the note, the same in the hands of A is not subject to any defense of which neither he nor the bank had notice at the date of the transfer. Wright vs. Stanley. Partnership..

1. PARTNER CANNOT MAKE ASSIGNMENT FOR BENEFIT OF CREDITORS WITHOUT CONSENT OF COPARTNER: SURSEQUENT RATIFICATION.-One of the members of an insolvent firm cannot, either before or after dissolution of the partnership, make a valid assignment of all its effects for the benefit of creditors, against the will of a copartner, or without his assent when he is present or accessible. Where an assignment is so made against the will of the non-executing partner, or when he is present and not assenting, and he subsequently ratifies the assignment, the ratification will relate back to the time of executing the assignment, and gave it effect from that date; but not so as to defeat the rights of third persons, acquired in good faith in the meantime. Holland vs Drake.

2. WHAT CONSTITUTES.-R. and L. agreed that R. should furnish the ground for a brick-yard, the clay to make bricks thereon, the lumber to protect the bricks while making, and the wood to burn them, and that L. should manufacture and burn bricks in the yard, and be at all the expense of so doing; when manufactured, each was to have a fixed proportion of the bricks, subject to a certain sum that R. was to have for every 100,000 bricks sold; the bricks were to be sold by either of the parties, and the proceeds divided according to the rights of the parties under the contract. Held, that R. and L. were partners, and jointly liable for a breach of a contract of sale made by either of them. Farmers' Ins. Co. vs. Ross.

Real Estate.

LIFE INTEREST AND REMAINDER: COSTRUCTION OF DEED.-Real estate was conveyed to C. for life, and after her death to her children by E., during the life of each of the children, and after their death to E. and his heirs, habendum to C. during life, and after her death to the "said surviving children," and after the death of each of them to E. and his heirs. Held, that the provision for the children was contingent upon their surviving their mother, and only such of the children as survived her took the estate. That E. took a vested remainder in fee, subject to the intervening contingent estate of the children. Smith vs. Block.

Recent Bankruptcy Decisions.

Holiday.

DOCKETING JUDGMENT ON.-In the absence of prohibitory legislation by the State, the docketing of a transcript of judgment on a holiday is not void, but will confer a valid lien upon the real estate of the debtor in the county where it is filed. U. S. Circ. Ct., W. D. Wis. In re Worthington, 16 Nat. Bankr. Reg. 52.

Jurisdiction.

ACTIONS TO RECOVER BANKRUPT'S PROPERTY: FEDERAL AND STATE COURTS. Under the amending Act of June 22, 1874, the Federal Courts have exclnsive jurisdiction over actions brought by assignees to recover property claimed to have been transferred by a bankrupt in violation of section 5128. where the value of such property exceeds $500. By the Act of June 22, 1874, the State Courts were ousted of their jurisdiction over such actions pending before them at the time of its passage. N. Y. Sup. Ct. 1st Dept. Olcott, assignee, vs.. Maclean, 16 Nat. Bankr. Reg. 79.

Practice,

WHEN INTEREST ALLOWED: ATTORNEY'S COMMISSIONS: JURISDICTION :: FORECLOSURE OF MORTGAGE.-Where the assignee has sold real estate discharged of liens, he should allow interest on the liens to the date of making up his report of distribution. Attorney's commissions and costs stipulated to be paid on foreclosure are not allowable when the proceedings to foreclose are invalid, When the bankrupt court has first taken jurisdiction by ordering a sale of mortgaged premises, discharged of liens, it thereby ousts a State court of jurisdiction to foreclose the mortgage. U. S. Dist. Court, W. D. Pennsylvania. In re Devore, 16 Nat. Bankr. Reg. 56.

Preference.

WHAT AMOUNTS TO PROCURING ENTRY OF JUDGMENT.-Where one of the members of an insolvent firm, with knowledge of such insolvency, carries a message at the request of a creditor, although unwillingly, to an attorney, directing him to enter up judgment upon a judgment note which the firm had previously given : Held that he thereby procured the entry of such judgment and the issuing of the execution thereon. U. S. Circ. Ct., E. D. Pennsylvania. In re Benton & Bro., 16 Nat. Bankr. Reg. 75.

Set-off.

IN CASE OF VOLUNTARY ASSIGNMENT: DEPOSITS IN BANK.-A voluntary assignee is a mere representative of his assignor, and takes his choses in action subject to any existing right of set-off. Where a bank has made a voluntary assignment for the benefit of creditors, a depositor may set off a balance of deposits due him against his note held by the bank at the time of the assignment. Sup. Court, Pennsylvania. City Bank Harrisburg vs. Sherlock, 16 Nat.. Bankr. Reg. 62.

Bench and Bar.

Clerical justices have not, as a rule, proved a success, but the Rev. Sydney Smith was an exception, according to the following sketch which we find in the Washington Law Reporter: "He set vigorously to work to study Blackstone, and made himself master of as much law as possible, instead of blundering on as many of his neighbors were content to do. Partly by this knowledge, partly by his good humor, he gained a considerable influence in the quorum, which used to meet once a fortnight at a little inn, called the Lobster House; and the people used to say they were 'going to get a little of Mr. Smith's lobster sauce.' By dint of his powerful voice and a little wooden hammer, he prevailed on 'Bob' and 'Betty' to speak one at a time; he always tried and often succeeded in turning foes into friends. Having a horror of the game laws, then in full force, and knowing, as he states in his speech on the reform bill, that for every ten pheasants which fluttered in the wood one English peasant was rotting in jail, he was always secretly on the side of the poacher (much to the indignation of his fellow magistrates, who in a poacher saw a monster of iniquity), and always contrived, if possible, to let him escape rather than commit him to jail, with the certainty of his returning to the world an accomplished villain. He endeavored to avoid exercising his function as a magistrate in his own village, when possible, as he wished to be at peace with all his parishioners. Young delinquents he could never bear to commit; but read them a severe lecture, and in extreme cases called out John, bring me my private gallows!' which infallibly brought the little urchins weeping on their knees, and ‘Oh! for God's sake your honor, pray forgive us !' and his honor used graciously to pardon them for this time, and delay the arrival of the private gallows, and seldom had occasion to repeat the threat."

This

The following statements in regard to Lord Justice Christian, of the Irish Court of Appeal, will explain many of his recent acts and remarks: ""The duties of his office occupy about 100 days per annum. His leisure is, therefore, more than considerable. How do you think he employs his time? cross, cranky, jealous potentate reads novels from morning till night. He sees no company, and accepts no invitations. He is married, and has a family. He allows his wife, who is a very pleasant lady, and, apparently, a very happy woman, to entertain as she pleases, up to 6 o'clock in the evening. Then all the guests must go. He never appears until then, and he sits down to dinner in silence. He takes breakfast in his study, alone, and after a certain hour in the morning no servant dare come to his level of the hall, on pain of instant dismissal. In fact, he must not be encountered on the steps. Sometimes he never leaves the house for weeks together, and then he drives out in a carriage and pair, and, flying through the streets, strikes terror to his species. He once nearly broke down, and, addressing the nearest thing to a friend said: "If I ever invited any man to my house, I would invite you." And then he stopped. In contradistinction to his marvelous knowledge of law, he is reputed to be the best Shakesperean student alive in the three kingdoms. It is said he can repeat the plays verbatim. So that between the novels and the play, the law, and his own sweet temper, Jonathan Christian is by no means an ordinary person. He is over sixty years of age."

San Francisco Law Journal.

VOL. I.

SEPTEMBER 22, 1877.

No. 4.

Notes.

THE case of Parry vs. Kelley, reported in our first number, deserves more than a passing notice. The Court say in construing the powers of married women to mortgage their interest in the community property, that while a mortgage executed by her creates no lien, it is not void, and any interest afterward acquired, as in case of death of the husband, enures to the mortgagee as security for the debt, and, in support of their conclusions, they cite section 158 of the Civil Code, which provides that either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property which either might, if unmarried, etc. Under this section they say a married woman is as competent to execute a mortgage as though she had been a femme sole. We would direct attention to section 167 of Civil Code. It does not appear from the opinion, as written, that the Court considered this section at all in their deliberations, and they do not refer to it. In reading the two sections together will it not appear that while the term "property," in section 158, is general, yet, by section 167, community property is specially reserved and excepted.

The wording of section 167 is such that a question may arise as to whether the contracts spoken of are those of a general nature, such as debts, or those made in respect to the specific property, such as mortgages; if the former, then it takes nothing from section 158; if the latter, the community property is excepted from it, and her contracts concerning it are void without the husband join her. It is to be regretted that the Court did not refer to this section also, for it may seem that the opinion was hastily prepared and without much consideration.

It is interesting, also, to consider the possible results to flow from this construction of the statute, should the careless, indifferent, or designing wife enter into secret engagements with the money-lender, paying extortionate interest. Would not the very objects of the law which gives her an interest for her protection be defeated, and especially would she defeat the husband's heirs in a moderate estate, should a homestead have been declared in addition to the secret mortgage. Moreover, in exceptional cases, it may not be improbable that some heartless, designing, and miserly wretch would be induced, by insatiable greed, to fix a certain interest under his mortgage, leaving death no chance to choose between husband and wife, but have the widow's interest immediately enure to the security of his debt.