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under which property had been taken served on Weld & Co. and on the makes application to the bankrupt sheriff. court, by petition, to allow the sheriff

' to proceed to sale , &c., and obtains & Co. presented a petition to the dis

On the 6th day of July, 1870, Weld the order asked, under which the proceeds are paid into the bankrupt trict court asking that the injunction court, he is bound by it.

be so modified as to allow the sheriff to In error to the Supreme Court of the sell the property of Frederick Wiltse State of New York.

levied on by the sheriff previously to This is an action brought to recover filing the petition in bankruptcy. On $4,404.72 collected by the plaintiff in er- this petition of Weld & Co. an order ror as sheriff of the city and county of was made granting its prayer, directing New York, under three executions, two the time and manner of sale, and orderof which were issued on judgments en- ing that after deducting costs and tered in favor of the defendants against charges, the avails of the sale should be Frederick and Albert Wiltse, jointly brought into the district court to await and severally, and one of which was

its further orders. The order was enissued on a judgment entered in favor of tered with the clerk of the district the defendants against Frederick Wiltse court by and upon the motion of the alone.

counsel of Weld & Co., and served The defence relied upon is that the upon the sheriff. plaintiff in error, under certain orders

A sale was made in pursuance theremade by the United States District of, and the money resulting from the Court for the Southern District of New sale was paid into court by the sheriff, York, in a proceeding in bankruptcy

as therein required. We'd & Co. now against Frederick Wiltse, paid over to sue the sheriff for not paying this the clerk of that court the moneys money to them, upon their executions, arising from the sale of the property

instead of paying it into court. To a levied on by him under said execution, plea setting up the facts above stated, a

On the 12th of March, 1870, Freder- demurrer was interposed by the plainick Wiltse was thrown into bankruptcy tiff's, which was sustained by the Suupon the petition of one of his cred- preme Court and the Court of Appeals itors. Prior to this time Weld & Co., of the State of New York, and judgthe defendants in error, had obtained ment rendered against the sheriff. against the Wiltses the judgments above

The writ of error before us is to rementioned, and executions upon the

view that judgment. same were in the hands of O'Brien,

In support of this judgment it is who was then the sheriff of the city and contended that the United States Discounty of New York.

trict Court is a court of limited jurisThe petitioning creditor in bank- diction ; that it has not the power to ruptcy, on the 24th of March, 1870, divest a state court of its jurisdiction; obtained from the district court an in- that the title to the property levied on junction order directed to Weld & Co. by virtue of the judginent and execuand to the sheriff, O'Brien, restraining tion from the state courts was superior them from disposing of Frederick to that derived from the orders of the Wiltse's property until the further order district court; and that the orders diof the court. This order was duly recting the payment of the money in

question into the district court were APPROPRIATION OF PAYwithout jurisdiction and void.

MENTS. It is further contended in support of

SUPREME COURT OF PENNSYLVANIA. this judgment that if the bankrupt Moore v. Kiff, et al. court had authority to take the custody Decided March 29, 1876. and control of the property from the In the absence of appropriation by the state court, it could do su only by a suit parties, the law applies payments at law or in equity, and not by sum

first to the interest, and then to the mary proceedings, and that an order where a debt is payuble in a commod

principal of the debt. made in such summary proceeding is ity, a failure to make or offer such absolutely void.

payment fixes a liability to pay in Held, That the assignee is such case, money. if he desired to obtain the property

Error to Common Pleas of Bradford held under state authority, must liti- county. gate his claim by a plenary suit, either Scire facias to revive a judgment at law or in equity, and that it could entered on a bond, brought by Moore not be done by a mere rule.

against Erastus Kiff, Samuel Kiff, and But as the plaintiff in the execution John Kiff. Defendants pleaded payhimself took the proceeding in the ment with leave. bankrupt court, and there obtained On June 24, 1846, Moore sold a rules and orders, he is bound by farm, with the stock thereon, to the them. That the plaintiffs in the exe- defendants, the latter agreeing, by the cutions under these facts can maintain contract of sale, to give him their joint a snit against the sheriff for paying the and several promissory notes for $3150 money into court in pursuance of the with interest from March 4th previous, order obtained by them, instead of and to execute a judgment bond conpaying it to them, is sustained by no ditioned for the payment of the said authority, and is in violation of the notes. On the same day the detendprinciples of right and justice. ants executed ten joint and several

If the execution creditor, upon the judgment notes, payable one each year, claim of the assignee, had simply di- amounting in the aggregate to $3150, rected the sheriff, without the form without interest, but gave ten other of an order of the court, to pay the notes for the interest, payable in pork money into bankruptcy, the sheriff and sugar. A bond with warrant of would have been justified in complying attorney to confess judgment was also with the direction.

executed for $3150, conditioned for the Especially is he bound, when, as in payment of the ten principal notes. the present case, his direction is clothed Two days later judgment was entered with the solemnity of a legal proceed upon this in the Common Pleas of ing, and the money is received and dis. Bradford County. tributed under the forms of law.

On November 28, 1849, defendants The judgment must be reversed. and resold the farm to Moore, he agreeing the case remitted to the Supreme Court to accept it at the rate of $5.50 per of New York for further proceedings. acre, in part payment of the above Opinion by Hunt, J.

notes. On January 8, 1868, Moore brought this scire facias.

It appeared from the evidence that Verdict for the defendant and judg. the undisputed payments amounted to ment thereon. $2831. Samuel Kiff had transferred Held, The learned judge erred in to Moore a farm at a valuation of instructing the jury that the payment $1000, the surplus of which, remaining made by the defendants must be apafter payment of his private debts to plied to the principal of the debt in Moore, was to be applied towards the controversy to the exclusion of the inliquidation of these notes. Defendants terest notes. He places this upon the claimed that $910 thereof went toward ground that the latter were barred by the notes, $330 more than Moore the statute. The error of this reasonallowed. They likewise claimed credit ing consists in the fact that at the time for a payment of $200 in sugar, thus of the agreement of November 28th, swelling the payments to $3371—more 1849, the interest notes referred to than the face of the bond.

were not barred. No special instructions were request

Where money is paid generally upon ed by the plaintiff.

a debt, the obvious rule is to apply it The court below (Streeter, P. J.,) first to the interest, if any, in arrears, charged inter alia, as follows: “Eras- and then to the extinguishment of the tus Kiff swears that Moore received a principal. The parties evidently confarm of $1000 to apply on these notes, templated the payment of the debt due and Samuel Kiff testifies that his pri- Moore, not merely the principal of that vate debt was first taken out, but the debt. Nor is the fact that the interest amount of it he cannot state ; he recol- notes were payable in pork and sugar, lected that he owed him $90 for a horse material, unless there had been an offer The defendants insist that this credit to show payment in those particular should be $910 instead of $570. It is commodities. The defendants had a for to determine under the evidence right to pay in pork and sugar. An which is the true amount.

offer to do so would have been a suffiWe understood from the evidence that cient answer to a demand for payment. the price of the 350 acres resold to But a failure to show either payment or plaintiff, as well as the amount paid by an offer of payment, in these articles, Saznuel Kiff, was to apply upon the fixes the liability of the defendants to debt in indgment now sought to be re pay in money. vived. But the counsel for the plaintiff Judgment reversed and a venire insisteù that these payments. must be facius de novo awarded. applied to the interest notes first, and Opinion by Pacson, J. the balance to the judgment. No money or sums were ever applied by WILL. RESTRAINT OF MAR. Moore to either debt; and as the inter

RIAGE. est notes are now barred by the statute, English High COURT OF JUSTICE. it seeins to us that these payments must

CHANCERY DIVISION. be applied to the debt in controversy.

Allen v. Jackson. you find for the plaintiff, it seems to us that the amount should be $319,

Decided December 13, 1875. with interest from June 24, 1856." To A condition in the will in restraint of this charge the plaintiff excepted before the second marriage whether a man verdict.

or a woman is not void.

you

If

This was an appeal from a decision By a codicil the testatrix gave Jane of Vice Chancellor Hall.

McCormick an annuity out of the inMrs. Frances Jackson, a widow, by come of the trust property. her will, dated the 7th of March, 1862. The testatrix died in January, 1863. bequeathed the residue of her estate Ellen Ada Jackson died in January, and effects to T. Allen and W. H. Jack 1864, without issue. son, whom she appointed her executors, In January, 1874, her husband, R. N. upon trust out of the annual income to Jackson, married again. pay to her niece and adopted daughter, The trustees filed the present bill Ellen Ada Jackson, the wife of the de- against R. N. Jackson and Mrs. McCorfendant, Robert Noble Jackson, the an- inick and her children, praying for exenual sum of £40 for her life for her sole cution of the trusts of Mrs. Jackson's and separate use, and, in the next place, will, and for a declaration that R. N. to pay the whole remaining income un- Jackson had forfeited his lite interest to her nephew, the defendant, R. N. in the trust property. Jackson, and the said Ellen Ada Jack The Vice-Chancellor held that the son and their assigns during their joint proviso defeating the life estate of the lives, and after the decease of either of husband on his second marriage was them then to the survivor during his or void, and that he was entitled to the inher life for their, his or her own use and come of the property notwithstanding benefit. Provided, nevertheless, and his second marriage. she detlared her will to be, that if the Mrs. McCormick and her children apsaid Ellen Ada Jackson should depart pealed from this decision. this life in the lifetime of her husband, Held, It is somewhat singular that, the said R. N. Jackson, and he should although something very like the quesmarry again. then she directed her said tion involved in this case was decided trustees and the survivors of them to in the case of Evans v. Rosser, yet the stand possessed of the said trust prop- exact point itself is now for the first erty upon the trusts therein after de time to be decided. clared. And after the decease of her It seems to have been laid down by a said niece and her surviving husband, great number of cases that what is called if any, and subject to his marrying a a general restraint upon marriage is second wife as aforesaid, she directed against the policy of the law. That, the said trustees or trus:ee to stand pos- of course, can be the only principle sessed of the said trust property in trust which can be the foundation of any rule for the children and grandchildren if at all on the subject. The general reher said niece, Ellen Ada Jackson, as straint of marriage, for some reason or therein mentioned, and in default of other, probably a good reason, is to be children or grand children of her said discouraged, and a condition subseniece, then in trust for the children of quently annexed, by way of forfeiture the testatrix's sister, Jane McCormick, to a marriage is therefore void. That who should be living at the time of the is the law both as to man and woman; death of her said niece without issue, but it has been most distinctly settled in equal shares as tenants in common. that with regard to the second marriage

The will contained powers of mainten- of woman, that law does not apply, ance and advancement for the benefit that whether the gift be a gift to a of the infant children.

widow by a husband or a gift to the

widow by some other person, the law tate, and it is to go over for the benefit does not apply to that case, and that of my children.” In this particular such a condition is perfectly valid. case it was not the wife who was doing

Now, there is no act of Parliament it, but it was a person who places herself which has provided, and there is no de in the position of the wife—the wife's cision of any court whatever which has mother—and who says, making a proestablished, that there is any distinction vision for her adopted daughter, that whatever between the second marriage she gives her the income of her propof a woman and the second marriage erty for her life, and then gives it, after of a man; and in the absence of any her death, to her surviving husband, decision to the contrary, we are unable evidently in his character of widower, to see any principle whatever upon with a declaration that if he should which the distinction can be drawn be- marry again it should go over to the tween them. The case before us seems child of the daughter who was the first to us to show what immense mischief object she intended to provide for-a one would be doing if one were to in- most reasonable and proper provistroduce a different rule of law in the ion, with respect to which it seems case of a widower to that in the case of a impossible to suggest that there is widow. Now, in the case of a widow, any ground of public policy against it. it has been considered to be very right On that ground simply, that there is no and proper that a man should prevent distinction in principle or authority behis widow from marrying again. Prob- tween the second marriage of a man ably, if she were a widow with children, and the second marriage of a woman, he might think that his children would we are prepared to say that the law not be so well cared for and protected should be the same as to the one as to if his widow formed a second alliance the other. and became the mother of a second

We are of opinion that the gift over family. That might perhaps have been on the marriage of a widower is exactly the origin of the exception, and it was on the same footing as a gift over on the held, when the thing came to be ap- marriage of a widow. plied, that it might very well apply to

The condition is not void. a gift by a stranger who was not the

Opinion by James, L. J.; Mellish, husband. Supposing we had the case L. J. and Baggally, J. A. of a married woman having a property which she had power to dispose of by

CONTEMPT OF COURT. her will, and she left it to her husband

RECEIVER. by reason of his being the widower, Court of COMMON Pleas of Pennsyland for the purpose of enabling him to perform his duties properly as the head of the family which she may have left, The Commonwealth applt., v. Edward

Yong, Sheriff, and others, respts. it would, it seems to us, be monstrous to

Decided March 20 1876. that when she provided for the contingency of the husband marrying a A sheriff who seizes goods in possessecond time and having a new wife and

sion of a receiver, after notice of

the appointment of the latter by the a new family, she should not be able to

court, is not protected by the pro say, 66 In that case he is to lose the es

cess in his hands, unless it was issu

VANIA.

say

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