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Daxingulated in People's fav. Bank v. Bates 130 C. S. 52 30 LTA 7 8. Ct. 21, boiding terms of mortgage contemplated no such recolt; Etheridge v. #perry, 189 C. 8. 272 273, 275, 35 L 174 175 11 8. Ct. 97, 98, mortgage valid where pet proceeds of sales were paid to mortgagee; Huntley v. Kingman, 152 C. S. 533. 535, 28 L. 543, 14 8. Ct. 1, reviewing authorities, assignment for benet of certain of creditora, reserving surplus, valid; Argall v. Segmour, 4 McCrary, 56, 57, 58, 48 Fed. 548, 549, 350, mortgage not vold because mortgagee did not at once take possession; Miller v. Jones. 17 Fed. Can. 223, 224, where mortgage contemplated no such re sult, retention and sale of goods did not make it fraudulent; Morse v. Kiblet, 22 Fed. 302, and Hills v. Stockwell, 23 Fed. 436, under ruling of State court fraud in such case held question of fact; Maish 7. Bird, 22 Fed. 577, 578, 579, 580, mortgage sustained where proceeds of sales were to be applied on the debt; First Nat. Bank v. 1Andenstruth, 79 Md. 139, 47 Am. St. Rep. 368, 28 Atl. 808, mere retention of possession did not render mortgage fraudulent; Eph. raim v. Kelleher, 4 Wash. 250, 251, 252, 253, 256, 29 Pac. 987, 988, 989, 18 L. R. A. 618, 620, 621, 622, 624, 625, and n., reviewing cases, and sustaining mortgage where part of proceeds were to be applied on debt and part to replenishing stock. Criticised in Lister v. Simpson, 28 N. J. Eq. 441, reviewing cases, mortgage, with power to sell in usual course, not per se vold. Criticised in note in 15 Am. St. Rep. 915.
Bankruptcy. A mortgage, vold as to other creditors, held void as to assignee of bankrupt mortgagor, p. 526.
Cited in In re Gurney, 7 Biss. 416, F. C. 5,873, where assignee avolded unrecorded bill of sale; Lane v. Innes, 43 Minn. 142, 45 N. W. 6, where assignee maintained action to set aside fraudulent conveyance.
Bankruptcy. If holder of chattel mortgage, on its face vold as to creditors, seizes the goods within forbidden time, transaction is in violation of preference clause of bankrupt act, p. 527.
Railroads. A railroad mortgage, in favor of State, and existing by virtue of statute, incidentally recognized as valid, p. 374.
Cited to this point in note in 4 Am. St. Rep. 702.
Constitutional law. Fundamental principles of government, found in Constitutions, must necessarily be declared in terms very general, because they must be very comprehensive, Miller, J., dissenting, p. 381.
Approved in Opinion of the Justices, 66 N. H. 655, 33 Atl. 1090, reviewing numerous authorities, holding property of railroad could not be taken for less than its value without owner's consent.
Miscellaneous.- St. Louis, etc., Ry. v. Loftin, 30 Ark. 701, not in
22 Wall. 381-394, 22 L. 796, MORGAN v. CAMPBELL.
Landlord and tenant.— At common law, landlord could distrain any goods found on premises at time of taking, but had no lien until actual seizure, p. 390.
Cited in note in 41 Am. Dec. 211.
Liens. Statutory lien implies security upon the thing before warrant to seize it is levied; levy and sale are only means of enforcing it, p. 390.
Cited in Rosenberg v. Shaper, 51 Tex. 142, where statutory llen of landlord attached independently of distress warrant.
Landlord and tenant.- In Illinois, landlord has no common-law lien on goods of tenant for rent, and no statutory lien, except as to growing crops, p. 392.
Cited in First Nat. Bank v. Adam, 138 Ill. 499, 28 N. E. 957, reviewing cases, provision of lease did not give lien superior to subsequent mortgage; Kellogg v. Newspaper Co. v. Peterson, 162 Ill. 161, 53 Am. St. Rep. 303, 44 N. E. 412, sale of goods, held valid, as against subsequent levy of distress warrant for rent.
Bankruptcy.— Assignment in bankruptcy relates back to commencement of proceedings, and vests title to bankrupt's estate, in assignee, though it is then attached on mesne process as property of bankrupt, p. 393.
Approved in Cunningham v. Hall, 69 Me. 354, collecting cases, composition did not discharge attachment lien on property never conveyed to assignee; Hirshiser v. Tinsley, 9 Mo. App. 342, holding summons in creditor's suit such mesne process.
Bankruptcy.- Main purpose of bankrupt act to distribute property of bankrupt equally among creditors, and creditor, who has not security which binds property, at time proceedings are begun, is prevented from obtaining it, p. 393.
Approved in Trow v. Lovett, 122 Mass. 573, filing of bill to apply property to execution, gave no such lien.
such lands from taxation; Sioux City, etc., R. Co. v. County of Os ceola, 43 Iowa, 821, lands similarly held taxable from time company's right was complete; State v. Railroad Co., 89 Mich. 491, 51 N. W. 105, where State was estopped to deny company's right to lands involved in principal case; Mobile, etc., R. Co. v. Moseley, 52 Miss. 134, 135, charter exemption did not cover lands such as mentioned in rule; Wisconsin, etc., R. Co. v. Taylor County, 52 Wis. 54, 55, 8 N. W. 834, 835, reviewing authorities, such lands taxable as soon as patented; Wisconsin, etc., R. Co. v. Price County, 64 Wis. 591, 594, 595, 26 N. W. 97, 99, 100, reviewing authorities, such lands taxable while patent was withheld because of erroneous construction of law.
Imposition of taxes can in no just sense be said to be a diminution of value of lands, p. 573.
Approved in Mobile, etc., R. Co. v. Moseley, 52 Miss. 135, charter exemption did not cover real estate not necessary, and used in actual business of road.
Taxation.- Liability to taxation is an incident to all real estate, exemption is the exception, p. 573.
Approved in Mobile, etc., R. Co. v. Moseley, 52 Miss. 135, exemp tion did not cover land not necessary, and used in actual business of company; Courtney v. Missoula County, 21 Mont. 592, 55 Pac. 859, State lands sold, but not fully paid for, held taxable; Tyler v. Cass County, 1 N. Dak. 383, 48 N. W. 234, assessor not liable for tax sale of railroad lands not taxable.
Taxation.- Statute Imposing specific tax on "cost of railroad and its equipments and appurtenances," in lieu of all other taxes, has no relation to lands owned by the company, not used nor necessary in operating the road, though such lands have been mortgaged to secure construction bonds, p. 574.
Cited and applied in New Orleans, etc., Ry. v. Parker, 143 U. S. 56, 36 L. 70, 12 S. Ct. 368, reviewing authorities, appurtenances," in mortgage, did not cover subsequent grant of lands by Congress; Pearsall v. Great Northern Ry., 161 U. S. 665, 40 L. 844, 16 S. Ct. 710, reviewing authorities, where charter authorized consolidation generally, and subsequent act limited it to non-parallel lines; Ford v. Delta, etc., Co., 164 U. S. 667, 41 L. 592, 17 S. Ct. 232, reviewing authorities, exemption of capital stock, property and effects did not cover such lands; Brodie v. Fitzgerald, 57 Ark. 449, 22 S. w. 30, exemption of property used for charity did not cover property rented for its benefit; Mobile & Ohio R. Co. v. Moseley, 52 Miss. 134. 135, charter exemption held not to cover lands granted by Congress to aid construction.
Taxation. Statute exempting certain property of railroad company from taxation for period of years, the company not being
or partners, in trust, to be applied to debts of partnership and to account to bankrupt partner or his assignee for surplus, p. 403.
Cited and applied in Jones v. Newsom, 7 Biss. 323, F. C. 7,484, assignee of partner holding such trust property, held to account to firm creditors; In re Jewett, 7 Biss. 334, F. C. 7,306, same parties, as members of different firms, adjudicated bankrupt in two districts; Wilkins v. Davis, 2 Low. 515, F. C. 17,664, reviewing authorities, assignee of bankrupt partner recovered sums withdrawn from firm by solvent partner; Russell v. Cole, 167 Mass. 10, 57 Am. St. Rep. 435, 44 N. E. 1058, where solvent partner recovered firm property taken under attachment in action against bankrupt partner; Daugherty v. Strauss, 1 Tex. App. Civ. 509, discharge released partner from individual and firm debts. See note in 40 Am. St. Rep. 571.
Bankruptcy.-Assets are marshalled between firm creditors and separate creditors of partners only when there are partnership assets and separate assets of partners, and proceedings have been instituted against both, as provided in thirty-sixth section, bankrupt act, p. 404.
Adjudication, obtained by one partner against another, will not be sustained if real object of petitioner is to dissolve firm, and adjudication is not required for any other pur pose, p. 404.
Cited in In re Hamlin, 8 Biss. 128, F. C. 5,994, petition filed by one partner, solely to harass another partner, dismissed. See note in 69 Am. St. Rep. 412.
Bankruptcy.- Assignee of estate of individual partner, has no such title as will enable him to call third parties to account for partnership property; e. g., to recover money paid to firm creditor, in fraud of other creditors and of bankrupt act; if such recovery may be had at all, it must be by partnership or assignees of joint estate, pp. 404-405.
Approved and applied in In re Jewett, 7 Biss. 334, F. C. 7,306, same parties, as members of different firms, adjudicated bankrupt in two districts; Crompton v. Conkling, 9 Ben. 228, F. C. 3,407, Corey v. Perry, 67 Me. 144, 24 Am. Rep. 18, and Poillon v. Lawrence, 77 N. Y. 218, discharge of individual partner did not release him from liability on firm debt; Lindsey v. Corkery, 29 Gratt. 654, where firm creditors proceeded against firm property, though part. ners were individually in bankruptcy; generally in Harmanson v. Bain, 1 Hughes, 201, F. C. 6,072.
22 Wall. 406-424, 22 L. 879, UNITED STATES v. FARRAGUT. Admiralty. Parties to suit in Admiralty Court, whether sitting as prize or instance court, may submit case to arbitration, under
107 Ga. 3, 32 S. E. 670, refusing to imply exemption from fallure to exercise right to tax; Appeal Tax Court v. Baltimore Academy, 50 Md. 447, where, pursuant to reservation of right to amend, immunity from taxation was removed; Esser v. Spaulding, 17 Nev. 301, 30 Pac. 897, certificates of indebtedness not contracts to pay out of first money in fund; Dow v. Railroad, 67 N. H. 48, 36 Atl. 534, reviewing, at length, authorities on surrender of legislature's right of repeal; State Board v. Paterson, etc., R. Co., 50 N. J. L. 449, 14 Atl. 612, citing cases, holding exemption in charter subject to right of repeal reserved; Lee v. Sturges, 46 Ohio St. 159, holding shares of stock in foreign corporation taxable; Pennsylvania R. Co. v. Miller, 132 U. S. 84, 33 L. 272, 10 S. Ct. 37, reprinted, 129 Pa. St. 200, silence of charter did not exempt company from injury incident to enlargement of its works; State v. Anderson, 90 Wis. 562, 63 N. W. 748, refusing to imply exemption from legislature's silence as to details of assessment; Yates v. Milwaukee, 92 Wis. 358, 66 N. W. 250, exemption from "taxation" did not exempt from special taxes, under local statute.
The following cases approve the rule, but hold that there was a valid contract to exempt: Farrington v. Tennessee, 95 U. S. 686, 24 L. 560, collecting cases, charter provision for tax on each share of stock, held exclusive; People v. Hall, 8 Colo. 495, 9 Pac. 39, holding county warrants receivable for taxes; State v. Whitworth, 8 Lea, 607, land held exempt in hands of purchaser. Approved in dissenting opinion in People v. Soldiers' Home, 95 Ill. 564, majority holding property permanently exempt under charter.
Taxation.- Where contract in restraint of taxing power exists it is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what terms of concession clearly re quire, p. 575.
Approved and principle applied in Newton v. Commissioners. 100 U. S. 561, 25 L. 712, reviewing authorities, statutes establishing county seat at certain place held no contract; Vicksburg, etc., R. Co. v. Dennis, 116 U. S. 668, 29 L. 771, 6 S. Ct. 627, affirming S. C., 34 La. Ann. 956, exemption of property for certain time from completion of road did not exempt it during construction; St. Louis, etc., Rys. v. Loftin, 30 Ark. 711, exemption of capital stock did not exempt lands granted in aid of construction; Memphis, etc., R. Co. v. Berry, 41 Ark. 446, exemption did not pass to purchaser at foreclosure sale; Commissioners v. Colorado Seminary, 12 Colo. 500, 21 Pac. 491, exemption of property used exclusively for seminary purposes covered only buildings, campus, etc.; Northwestern University v. People, 80 Ill. 335, 22 Am. Rep. 189, reviewing authorIties, legislature had no power to exempt property of university held for profit merely; State v. Maine Central, 66 Me. 497, exemption did not pass to new corporation, formed by consolidation with