LIFE INSURANCE. EVIDENCE plaintiff to the defer:dant.

Without contradictory evidence, these

(the letters of administration) give the The Mutual Benefit Life Insurance plaintiff the right to recover." Tu Co., plff. in error, v. Hattie B. Tisdale, the charge in this respect defendant deft, in crror. (October, 1875.)

excepted. Letters of administration are not ad

Judgment was entered for plaintiff, missible to show the death of the as from which defendant brings this writ sured, in a suit brought in an indi. of error. vidual character.

Tel, error; that letters testa'nentary In error to the Circuit Court of the issued to an administrator by a probate United States for the District of Iowa. court, as a general rule, are evidence

This action was brought on a policy only of their existence; that they prove of insurance issued to Mrs. Tisdale that the authority incident to that otlice upon the life of her husband.

has been devolved upon the person Evidence was given on the trial tend-therein named; that he has been aping to show the death of Mr. Tisdale, pointed, and that he is executor or adon the 24th of September, 1866. It ministrator of the party therein assim: consisted chiefly of his sudden and ed to have departed this life; that in an mysterious disappearance, under cir- action by such executor or administracumstances making probable his death tor touching the collection and settleby violence. It would seem from the ment of the estate of the deceased, charge of the judge that defendant they are conclusive evidence of his riglit gave evidence that he had been seen to sue for and receive whatever was due alive some months after the date of his to the deceased. That if tlie present supposed decease,

suit had been brought by plaintiff as The plaintitt offered in evidence let. executor or administrator to collect a ters of administration upon the estate debt due her deceased husband, or to of her husband, issued to her by the e tablish a claim arising under his will, County Court of Dubuque County. the letters testamentary would not only Defendant objected to the adınission have been competent, but cor.clusive, of this evidence. The objection was evidence of her right to maintain the overruled, and the letters were read in action, and unimpeachable except for evidence, to which defendant excepted. fraud; but as the suit was brought by

The judge charged the jury as fol plaintiff as an individual, to recover a lows: “The real question is whether debt claimed to be due her as an indi. Edgar Tisdale was dead at the time ot vidual, the books abound in cases which issuing the letters of administration. It show that a judgment upon the precise is incumbent upon the plaintiff to prove point in controversy can not be given that fact. She has shown as evidence in evidence, in anoth: r suit, against one of that fact letters of administration not a party or privy to the record. issued to her as administratrix by the

Neither upon principle or authority probate judge. It is the duty of the was it proper, in the individual suit of court to instruct you that this inakes a prima facie case for the plaintiff, and Mrs. Tisdale against a stranger, to adchanges the burden of proof from the mit letters of administration upon the

estate of her husband as evidence of fecting the title to real property. The his death.

plaintiff, the lis pendens being filed, Judgment reversed, and new trial bought at his peril. The effect of the or lered.

filing is to permit the judgment, if the Opinion by Ilunt, J.

court so adjudge, to have effect from

the time of filing. And if the plainLIS PENDENS. MARRIED

tiff succeed, the purchaser subsequent WOMAN.

to the filing is just as much bound as N. Y. SUPREME Court. Gen’L TERM. the purchaser after judgment. In the THRD DEPARTMENT.

present case the lien was adjudged to Sanders, applt, v. Warner, respt.

take effect from the day of filing. Decided May, 1876.

Judgment affirmed with costs.

Opinion by Learned, P. J. A notice of Lis Pendens may properly be filed in an action to have a debt declared alien upon the separate real JURISDICTION. CONTEMPT OF estate of a married woman.

COURT. The husband of the defendant com

N. Y. COURT OF APPEALS. menced an action against her in 1869,

The People ex. rel. Woolf, respt., v. for money lent, and at the same time

Jacobs, applt. filed a lis pendens. He got judgment in 1873, and the debt was declared a

Decided April 18, 1876. lien against her real estate from the In a proceeiling to punish for a contime of filing. The money lent was

tempt of court in violating an in.

junction, the court has jurisdiction applied to the payment of mortgages

to ascertain and include the amount on her separate estate. In 1870, she of the costs and erpenses of the proconveyed to plaintiff by warranty deed. ceeding as a part of the fine, and if This action was brought to restrain the it includes items not properly allowsale of this real estate under the judy

able, it is an erroneous decision more

ly, and not an excess of jurisiliction, ment, the plaintiff claiming that the

which will render the commitment filing of a lis pendens in such an action void. It cannot be reviewed on hawas a nuleity; that the cause of action as stated in the complaint was not an Defendant was imprisoned under a action affecting the title to real prop- commitment for a contempt of court, erty within Sec. 132 of the Code, and in violating an order of injunction. that he was a bona fide purchaser The warrant directed him to be detainwithout notice. It was admitted that ed for thirty days, and also until he he had no notice beyond the con- should pay a line of $2,470.51, made structive notice arising from the lis up of three items; $2,068.29, the value pendens. An injunction was granted of property conveyed by defendant in in this action, but was vacated on the violation of the injunction ; $252.25, trial, and the complaint dismissed. The the costs of reference, and $150 comisel plaintiff appeals.

fees in the proceedings to punish for L. B. Kern, for applt.

contempt. Defendant sued out a writ M. F. Ufford, for respt.

of habeas corpus, claiming a right to be Held, That the action was one af- discharged on the ground that it was

beas corpus.

an error to include counsel fees, and ed the judgment. The plaintiff apthese being included in the fine made peals. the whole void.

Geo. W. Ray, for applt. C. Bainbridge Smith, for applt. S. Holden, for respt. Samuel J. Crooks, for respt.

Ileld, That under the loose modes of lleld, That the court had jurisdic. pleading allowed in justices' courts, the tio to ascertain the amount of costs answer sufficiently set up the statute to and expenses, and to include them as justify and require the amendment, if part of the fine (2 R. S. 538 $ 21), and necessary. It can be seen that the deif in determining the amount it included fendant intended to rely on some deitems not properly allowable it was an fence which needed no other facts than erroneous decision on a matter submit- tiose which appeared on the note. The ted to its judgment, not an excess of reason why the note had no legal force, jurisdiction, and did not render the although not stated, was apparent to commitment void, nor could it be re- any one who read it. viewed on habeas corpus. People ex. Judgment of the County Court affirmrel. Tweed v. Liscomb, 60 N. Y. 559, ed with costs. distinguished.

Opinion by Learned P.J. Judgment of General Term, reverzing order of Special Term, affirmed.

PRACTICE. Opinion by Rapallo, J.

N. Y. COURT OF APPEALS. JUSTICE'S COURT. PLEADING. Becker, applt, v. IIoward et al, respts. AMENDMENT.

Decided May 30, 1876. N. Y. SUPREME Court. GENERAL Term. A reargument will not be ordered to THIRD DEPARTMENT.

decide questions which may arise in Leonard, applt., v. Foster, respt.

other pending actions, when all the

questions involved in the appeal have Decided May, 1876.

been passed upon on the former hearAn answer alleging that a note was of ing.

no legal force, held a sufficient alle This was a motion for the reargugation to justify the defendant in ment of a case which was affirmed by insisting upon his right to amend by this court

, without a written opinion, pleading the statute of limitations.

on judgment of the court below. Upon Appeal from a judgment of the

the appeal but one question was inCounty Court, reversing a justice's

volved or presented, which was disjudgment. The action was on a note. The an:- Term. The motion for a reargument

cussed in the opinion of the General swer set up payment and that "the

was made with a view to a settlement note is of no legal or binding force or validity, if it had not been paid eleven other pending actions, in regard to the

of some question which may arise in years ago. The note had been duo

same property. sixteen years. The justice refused to

Geo. W. Cothran for the motion. allow the answer to be amended on the trial, to plead the statute of limitations.

Ileld, That the court is compelled to For this error the County Court revers- decide questions as they arise, and have

ing decided the precise points presented, Held, That it was error to take the the motion for a reargument must be questions of fact from the jury. The denied.

facts were conflicting and should have Per curiam opinion.

been left to the jury.

That his acts and declarations, if the LEVY. ESTOPPEL.

evidence as to them was believed by

the jury, would have estopped the N. Y. SUPREME Court. Gen’L Teru, sheriff from setting up his claim to FOURTH DEPARTMENT.

property he has levied upon, and would Clark, applt., v. IIodgkins, respt. be an abandonment of his levy. Decided April, 1876.

Judgment reversed.
A sherif may be estopped from sc! Opinion by Nocon, J.

ting up claims to property he has
levied upon by execution, by his acts PROMISSORY NOTE. MORT.
and declarations inconsistent with

GAGE. the levy.

SUPREME CURT OF MISSOURI. Appeal from a judgment of non-suit against plaintiff at Circuit.

Logan v. Sınith et al. (M1y, 1876 ) This action was brought to recover An endorsee of a note, who takes it as the value of certain oxen claimed to be

collateral security for a debt, created

at the time, with no notice of any the property of plaintiff.

equities between the original parties, In February, 1873, one R. was owner

and relying on the note for security, of said property, and on that i'ay one is a bona fide holder for value. L., a town collector, by virtue of a A bona fide endorsee of a note acquires warrant, levied on and sold said prop

the same right in a mortgage given to

secure it as the original payee would perty to one B.

have had if no equities had existed B., after this, sold said property to

against the note. plaintiff.

This was a proceeding to foreclose a The defendant as his defense showed

mortgage. that he was a depnty sheriff, and that

On the 17th of January, 1870, the prior to the collector's levy he had

defendant Sinith purchased of one made a levy on said property urder

Cowan the land described in the mortseveral executions, and that he took said property from plaintiff as such sige for the sum of $5,000. Ile paid

$1,800 in cash and gave his note for the deputy.

remaining $1,200, payable on the 25th Plaintiff then proved that the deputy of December, 1870, and executed this had lielped post some of the notices of the collector's sale; was present at mortgage as security for the payment of

said note. such sale and did not claim any levy on

There a prior mortgage, of it, and other facts going to show an which defendant Smith was ignorant at abandonment of his levy by the sheriff.

the time of purchase, which had been This defendant denied. The court refused to let the question given by Cowan to secure the payment

of two notes of $770 each, part of the go to the jury and non su ted plaintift.

purchase money, which became dne on S. R. Pratt, for applt.

March 1st and December 25th1, 1870, J. B. Emmes, for respt.

respectively. Default was made in the


payment of the first note, and an agrec- ple transfer of the note, any gre te: ment was made that Smith should raise right to enforce the mortgage security $500 and Cowan the balance necessary than Cowan had. to pay off said note. Smith paid the

L'eli, That unless the mortgage has $500, which was credited on his note to been separately ext:nguished, as by reCowan, but Cowan failed to raise any lease, the transfer of the note carries the money. Smith subsequently paid all mortgage with it, as an incident. The of Cowan's notes, and had the mort- mortgage itself is not a negotiable ingage satisfied of record.

strament, and cannot be transferred as On the 7th day of August, 1870, such, but the endorsee of the note acplaintiff

' loaned Cowan the sum of $1,- quires a right in the security afforded 200 and took a note therefor, and also by it, by re-ison of the stipulation conSmith's note as collateral security, Cow- tained in the mortgage it se't. The an having informed him that it was se- plaintiff being unaffected ly the agreecured by the mortgage. The mortgage ment between Cowan and Smith, has was never recorded or given to plain- the same rights in the mortgage which tiff, and was probably lest. Cowan soon Cowan would have had at the date of after became insolvent. Smith was transfer, if no such agreeinent had ever notified of the transfer of his note been made. prior to his payments on the Cowan

The plaintiff being a bona fide holdnotes other than the $500 above men- er of tiie note, and as such entit!cd to tioned, and before his note became due. the benefit of the mortgage given to There was no evidence given that

secure it, the judgment of the Cricuit plaintiff knew of any arrangement hav- Court is atlirmed. ing been made that Smith should pay Opinion by Hough, J.; Wagner, and his debt to Cowan by paying Cowan's Napton, J.J., concurring; Sherwood, notes as aforesaid.

J., concurs in result. The Circuit Court rendered judgment for plaintiff on the note for the balance due and interest, and for fore- FRAUDULENT CONVEYANCE. closure of the mortgage.

EVIDENCE. It is claimed that plaintiff was not N. Y. SUPREME COURT. GENERAL TERM. entitled to judgment because he could

THIRD DEPARTMENT. ziot be regarded as a bona fille holder of Niles, applt., v. Fish et al., respts. the note, inasmuch as he took it as col

Decided May, 1876. lateral security.

Where the debts which are the conside Ile!, That as plaintiff took the note

ration of alleged fraudulent convey. as collateral security, not for å pre ances are bona fide, very strong eviexisting debt, but for a debt created at dence will be required to show that the time, and on the faith thereof, with the conveyances themselves are fraud

ulent. notice of no equities, he became a holder for valrie.

Action by plaintiff, claiming to be a It is also claimed that plaintiff was judgment-creditor of defendant, to set not entitled to judgment becanse the aside conveyances. The referee found mortgage was not negotiable, and the for the defendant. The plaintiff applaintiff' could not acquire, by the sim- peals.

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