« ForrigeFortsett »
by a plenary suit; it cannot be done by summary application to a bankrupt court. O Brien v. Weld et al.
As to constitutionality of Amendatory Bankrupt Act of 1873, see CONSTITUTIONAL LAW.
But where a plaintiff in execution, under
BAR. which property had been taken, makes application to the bankrupt court, by petition, to allow A judgment in favor of other parties, seiring the sheriff to proceed to sale, &c., and obtains aside assessments, cannot be used by another the order asked, under which the proceeds are person on ground that such judgment operatel paid into the bankrupt court, he is bound by it. to annul the whole assessment. It only affected
10 the parties to that judgment. Zink v City of After the close of a bankruptcy, property fall. Buffalo. ing in to the bankrupt belongs to him, and not so the trustee in bankruptcy, although the bank
When a former judgment is set up in bar of rupt has not obtained an order of discharge. a per:ding action, it is not required to be pleadIn re Pettit's estate.
336 ed with any greater strictness than any otlier
plea in bar. Gould ex rel. v. Evansville and An action to recover the excess of interest un- Crawfordsville R. R. Co.
164 lawfully exacted from the bankrupt, may be maintained by his assignee in bankruptcy, but
In the plea of a former judgment, the parties he must pay or offer to pay the loan as a condi- and the cause of action being the same, the tion precedent; he is not a borrower within the prima facie presumption is that the questions meaning of our statute. Wheelock, assignee, v. presented for determination are the same, unless Lee.
it appears that the merits of the controversy were not involved in tbe issue.
Do Although under the ordinary statutes of limitations, the rule is that where the cause of ac A judgment rendered upon a demurrer to the tion is based upon fraud, the statute does not declaration or other pleading in chief, is equal. commence to run until it has become known to ly conclusive of the matter confessed by the de. the party injured by the fraud, still, as by sec murrer as a verdict finding the same facts would tion 34 of the Bankrupt Act, it is positively pro- be. . If, however, the plaintiff fails ou demurrer vided that the discharge may be contested with in his first action, for the omission of an in two years after the date thereof, this must be tial alleg tion in his declaration, which is fully taken as the limit, and the plea of the statute supplied in the second suit, the judgment in the of limitation is a good plea in an action to set first suit is no bar to the second.
Ib aside # discharge as fraudulently obtained. Picki t v. UcGarick.
As to time when action by assignee in bank
ruptcy is barred. See BANKRUPTCY. U. S. Circuit Courts may exercise the jurisdic See also ESTOPPEL; EVIDENCE; STATUTE OF tion conferred upon them by the Bankrupt Act LIMITATIONS. whenever it obtains jurisdiction of the parties, irrespective of the district in which the decree
BIGAMY. in bankruptcy was made. Burbar), -trix., v. Bigelow et al.
Bigamy consists in the unlawful contracting
of a second marriage. Cohabitation forms no A secured creditor is in no way bound by a element of the offense, and does not perpetuate compounding debtor's estimate of the value of it day by day. Gise v. The Commonwealth 24 his security. Ex parte Hodykinson.
The statute of limitations runs from the time He is entitled to abstain from proving his of the illegal contract of marriage.
Ib. debt, or taking any part in the composition proceedings, and, when he has realized his secu
BILLS AND NOTES. rity, he may claim from the debtor payınent of the composition upon the balance which may
See NEGOTIABLE PAPER. then remain unsatisfied of the debt.
BILLS OF EXCHANGE. An assignee in bankruptcy is entitled to property which has been purchased in the name of
Where a bill is accepted and handed over for the bankrupt’s wife, where it is shown that the value, but at the time of acceptance there is no wife contributed but little towards the purchase, drawer's name on it, any bona fide holder for and the husband has increased its value by his value is entitled to insert his own name as own time and labor. Muirhead, assignee, v. Al drawer and to sue the acc-ptor for the amount dridge.
The drawees of a bill of exchange are only A debtor cannot deprive his creditors of the held to a knævledge of the signature of the product of his labor, by putting it in the firm drawer; and in accepting and paying a bill of property only nomiaally acquired by his wife, which has been fraudulently raised after deli
ery to the payee, they mereiy vouch for the gen. The filing of a petition in involuntary bank- uineness of the signature of the drawer, and ruptcy will not divest a state court of jurisdic may recover back from the holder whatever tion over an action pending in such court for the they may have paid over the amount of the bili foreclosure of a mortgage on property belonging as originally drawn. White et al. v. Continental to the bankrupt. In the matter of Irving. 500 Natinal Bank.
The holder of such a raised bill is held to a purchaser, by whom they are also employed, knowledge his own title, and of the endorse- without disclosing such fact to former employ ments of the bill prior to his.
Ib. er, it would be snch a fraud as would prevent his recovering any compensation.
Ib. BILL OF LADING. A broker who comes into possession of goods tiffs a note of a contract in the following terms :
A broker having signed and sent to the plainwithout the knowledge or consent of his prin · I have this day sold by your order and for your cipal, ships the goods and takes a bill of lading, account to my principals about five tons of may by endorsement transfer the title to a bona pressed anthracene. W. A. Bowditch,” is per. flde pledgee, under the laws of Louisiana, sonally liable in an action for goods sold and Henry v. The Phila Warehouse Co.
217 delivered upon the contract. Southull et al v. Bouditch.
248 A shipper or his assignee is bound by the value of the goods written in the bill of lading. To enable a broker to recover commissions for El ins v. The Empire Transportation Co. 235
procuring a contract, he must show that he was Where the written and printed parts of a con
the procuring cause of the identical contract tract are at variance the written must gow: parties. Allis v. The Phillip.burg Mfg. Co. 411
which was subsequently entered into by the BILL OF PARTICULARS.
As to evidence in an action to recover broker
age on a sale of real estate, see EVIDENCE. A bill of particulars should contain specific statements of service, date of rendition and sum
BURDEN OF PROOF. charged, if not for each item, certainly for those
See EVIDENCE. occurring on the same day. Corbett v. Troubridge et al.
The breaking to constitute burglary need not It is not necessary to threaten, in express be violent or with great force; to raise a window words, to accuse another of a crime, in order to
or push open a closed door is sufficient. Tho come within the intent of the law against black. Pe ple v. Ticknor.
135 mail; it is enough if the threat is insinuated. The People ex rel. Crimmins v. Morgan et al., In order to convict of burglary a breaking Justices.
140 and entering with a felonious intent must be shown. McCourt v. The People.
422 BONA FIDE HOLDER, Where detached coupons and interest war
CERTIORARI. rants have been stolen, a bona fide transferee for
The right to the writ of certiorari to remedy value acquires a valid title to the coupons, but not to the interest warrants. Eoertsen v. Na
a private wrong is lost, unless application is
made for the writ within a reasonable time after tional Bank of Newport.
the commission of the wrong complained of ; As to rights of see NEGOTIABLE PAPER ;nd any laches must be satisfactorily explai ed. Town BONDS; RAILROAD BONDS.
People ex rel. Lyon v. Com'rs of Police. 503 BOUNDARIES.
The writ will not be granted after a lapse of
more than three years from the commission of A line between adjoining owners located and the act complained of.
1b. recognized as such for 20 years becomes a fixed boundary Stewart v. Patrick.
56 The records of proceedings in an assessment
cannot be reached by certiorari to the Mayor, As to estoppel from denying boundary line, &c., by one seeking to vacate the same. The see ESTOPPEL.
People ex rel. Vanderpoel v. The Mayor, &c., of
575 As to evidence of location of boundary, see EVIDENCE.
CHARTER PARTY. As to change of boundary, see DEEDS.
BREACH OF CONTRACT.
A mortgage of chattels which permits the
mortgagor to continue in possession and to sell BROKERS.
thu goods ir: the ordinary couse of business
is not void per se. Whether there is a fraud in A party employing broker to sell or exchange the particular case, is a question of fact. Brett property, is entitled to his disinterested efforts
331 and judgment. Iloyt et al. v. lIowe. 177
A mortgage of after-acquired chattels is valid. If brokers, while so employed, bring to him a
COMMISSION TO EXAMINE.
one living in the vicinity, in the ordinary course
of business, and in the usual hours of business, Irregulurities in the return to a commission to inspect and remove them.
Ib. sliould be taken advantage of by a motion beføre trial. Rube et al. v. Winne.
•371 Where it is agreed that notice of arrival shall Consent to the issue of a second commission runs from the date of receipt of such notice,
be given the consignee, the reasonable time is not a suppressio) of the first.
16. unless it contains a stipulation that the liability Both may be read in evidence, in the discre- of the carrier shall cease on the arrival of the tion of the court.
Ib. goods. Ib.
As to liability of railroads as common car.
riers, see RAILROADS. COMMISSIONERS OF HIGHWAYS,
When the parties to a sale of real estate stipu.
late at the time of sale, that on a resale, the
granter is to have a portion of the profits, such A common carrier is not liable for the non- stipulation is legal, but the grantor has no right delivery of goods taken from his possession by to insist on a sale after the stipulated time. legal process, without any act, fault, or con such a transaction is not a mortgage. Macau. nivance on his part. The 0. & M. R. R. Co. v. ley v. Porter.
113 Yohe et al
In cases of conditional sales where the title is Nor is he bound to follow them up on behalf tu vest in the purchaser upon pa v ment of the of the party for whom he undertook to carry price, the purchaser may perfect his title to the them. But he must give prompt notice that property at any time by tender of the price, althe goods have been seized and taken from his though it is payable by installments and they possession.
Ib. are not aue. If the debt was payable with in
terest, the purchaser must pay interest until the A common carrier is bound to transport goods maturity of the debt. Cusliman v. Jewell. 567 within a reasonable time, and if he negligentiy omits to do so, is liable for the damages occasioned thereby. Sherman et al. v. The H. R. R.
CONSIDERATION. R. Co.
176 The damages, in such case, are measured by be valid, and one, nnder an agreement, gives up
Where parties own a patent, believing it to the difference between the value of the goods to the other all rights under it, and the other when they ought to have been delivered, and their value at the time of their actual delivery, enjoys all rights that he could hıve had if the
ib. patent had been valid, there is sufficient con
sideration to uphold the agreement. Marst n v. The carrier is bound t, give notice, or do Sio tt et. al.
450 what the law esteems equivalent to a delivery
As to whether, under such circumstances, of the goods to the consignee, before he can there is a failure of consideration which will warehouse them.
defeat an action for the purchase price, quære. Plaintiff having collected certain back pay
Ib. money from the government as the agent of
The trouble and expense to which a party is persons claiming to have been soldiers, cannot support ac action against a carrier to whom he subjected in following the directions of a conlas delivered it pursuant to his principal's or- his claim against a sub-contractor, is a sufficient
tractor in respect to the time and place of filing ders; nor will it aid him to show that the con consideration to support a promise on the part signees' names were not on the government muster rolls ; nor tliat a great length of time of the contractor to pay the debt of the sub
contractors Barton v. Harrington et. al. 592 has elapsed since delivery to carrier and the consignees bave not appeared, nor that con
As to consideration for conveyances, signees were not entitled to receive the money from the government. Thompson v. Fargo,
DEEDS. trcas'r, &c.
A.s to consideration for assignments, see Evi. A forwarder who does an act in good faith, DENCE. which results in a loss of the goods forwarded, is not liable to the consignee by whom he was
CONSTITUTIONAL LAW. employed. Stannard et al. v. Prince. 397 A carrier's liability continues until the con
The legislature has no power ta authoaize a signee has had a reasonable time to call for, municipal corporatian to take stock in a private examine and remove the goods. Leavenworth; corporation, and to issue its bonds in payment
thereof. Weismer v. The Village of Douglas, Lawrence & Galveston R. R. v. Maris. 592
50 a reasonable time is such as wonld enable The legislature cannot impose, or delegate, to
1 a municipal corperation, power to impose a tax given to the intention of the framers, and the for a private purpose
1b.'construction should be a liberal one where the
object is the prevention of abuses and a preserChapter 49 of the laws of 1875 is not uncon
vation of the public good. In the matter of the stitutional. The People v. Troeed et. al. 131
application of the Water Commissioners to ac
416 A license tax required for the sale of goods is quire title, &c. in effect a tax upon the goods themselves. Well The provision of the constitution which deton v. State of Missouri.
139' clares that “no act shall be passed which shall
provide that any existing law, or any part thereA statute of a State which requires the pay- of, shall be made or deemed a part of said act ; ment of a license tax from persons who deal in!
or which shall enact that any existing law, or the sale of goods, wares, and merchandize which
any part thereof, shall be applicable, except by are not the growth, produce, or manufacture of inserting in it such act," applies to acts referthe State, by going from place to place to sell ring to existing local or private laws, or to laws the same in the State, and requires no such li- appropriating money to pay claims against the cense tax from persons selling in a similar way State, and is not intendet to require that all goods which are the growth, produce, or manu- general laws must be incorporated in all subse. facture of the State, is unconstitutional and void. quent ones that may have reference thereto. 16
1b. It was not the intent with which the Consti
A bankrupt law which adopts the exemption tutional Provision (Sec. 16, Art. 3) was framed, faom execution prescribed by the laws of the that the Title of an Act of the Legislature several States, is uniform and therefore constitushould contain all the details se: forth in the tional, as far as such exemptions are concerned. act. Freeman v. The Panama R. R. Co. 143
In re. Smith.
532 The design of the Constitutional provision
In passing upon the constitutionality of an act was to prevent the uniting of various objects ofaCongress, all the presumptions are in favor of having no necessary, or natural connection with the law, and courts will not pronounce it unconeach other in one bill.
Ib stitutioual unless its incompatibility is clear, decided and inevitable.
Ib. Geographical situs and varions other circumstances may be considered in determining the
It is competent for the legislature, as between proper construction to be given to a statute. 16
the people and one elected to office, to construe
its own act, and to waive any irregularity in A statue of a State which operates directly holding the election, and thus confirin the title. upon an immigrant by requiring the master, People v. Flanagan.
505 owner or consignee of a vessel bringing foreign See Town Bonds. ers into such State, te give an onerous bond for the future protection of the State against the CONSTRUCTION OF STATUTES. support of the passenger, is in conflict with the Constitution of the Uuited States, and therefore In a statute directing the Board of Supervisors null and void. Chy Lung v Freeman et. al. to audit an account not a legal charge on the
county, the word “may” is not to be construed The State cannot be compelled to proceed "shall.” The People ex rel. Conway v. Board of with the erection of a public building by a con:
Supervisors of Livingston Co.
280 tractor with whom it has a contract for its erec.
In might be so construed in an act to enforce a tion. A law of the State suspending such a work is not unconstitutional, as impairing the
right already existing.
Ib, obligations of the contract. The contractor's A statute only operates as a repeal by im. remedy for any damages he might sustain is an plication of a former one upon the same or a application to the legislature. Lord et. al. v. cognate subject to the extent that the two are Thomas.
repugnant; they will both stand to the extent The obligation of a contract can no more be they can be given effect. Harkens v. The Mayor,
&c., of N. Y.
345 impaired by a constitution than by ordinary lcgislation, Town of Moultre v. The Rockingham The title of Chap. 312, Laws of 1840, shows Ten Cents Savings Bank.
271 'that the intent of the legislature, in enacting Although a contract is illegal by reason of the statute of 1810, was merely to accomplish a creating an indebtedness beyond what was au- reduction of the expenses of foreclosing mortthorized by law, it is competent for the legisla gages, and its operation should be restricted ac
309 ture to legalize it. Nelson v. The Mayor, &c., cordingly. Curtiss, exr. v. McNair.
An act of the legislature providing for the for: It seems that iu case such a contract is illegal,'mation of corporations for manufacturing, min. that the contractor is not withaut his remedy, ing, mechanical or chemical purposes, or for the where the city has received and used the pro- purpose of engaging in any species of trade or perty. In such a case there is, independent of commerce, foreign or domectic, does not permit the contract, an implied obligation to pay its the incorporation under it of a banking corporavalue.
Ib. tion. Bank of California, v. Garth et al. 593 In construing the constitution, effect must bel See CONSTITUTIONAL LAW.
of N. Y.
CONTRACT. See TRESPASS.
Where a party, under a contract, agrees that
no charge for extra work shall be made after he CONTEMPT.
shall have given a certificate that all claims for
work are included in the payment demanded A court may fine a corporation for a violation when he delivers his certificate, is estopped of an injunction or order, although it may have from claiming for extra work after receipt of been irregular. The Mayor, &c., of Nero Jersey the payment so demanded. Coulter v. Board of v. The New Jersey and Staten Islund Ferry Co. Education for the City and Countyo, New York. et al. 51
Injunction orders must be honestly and fairly The clerk of a board of school trastees has no obeyed ; persons bound to obey them may be authority to change the effect of such a certifiguilty of violating them as wel! by aiding, cate.
Ib. abetting and countenancing others in violating
violat them as by doing it themselves.
16. A contract whereby one party agrees to ad
vance money to another with which to bet or It is too late on appeal to make the objection wager, the proceeds of which are to be divided, that interrogatories had not been filed before the is not illegal, and the latter will be compelled adjudication upon the contempt.
Ib. to account to the former in respect of money
earned thereunder. Beeston v. Beeston. 24 Where there was an order to show cause interrogatories are not necessary.
When commissioners advertise for proposals
for doing certain work, and party offers, in writA sheriff who seizes gonds in possession of a ing, to do it at prices named, and proposes receiver, after a notice of the appointment of names of two suretie and offer and proposals the latter by the court, is not protected by the are acceded to, and afterwards one of the sure. process in his bands, unless it was issued by ties refuses to qualify, and another is offered leave of the court. His seizure is a contempt of and refused, the agreement is still "in fieri.” the order of the court, and subjects him and his and no action can be maintained to consummate assistants to punishment and restoration of the the agreement or to recover.
Adams v. Loes et property. The Commonwealth v. Young, sherif" al.
27 et al.
The partiəs are not obliged to accept any Even though the title of a claimant may be sureties but those first proposed.
IO paramount to that of a receiver appointed by a court of equity, yet he will be guilty of con
Public officers are to consider character, &c., tempt if he asserts his rights by taking posses- as well as pecuniary responsibility, in accepting
Ib, sion, or by instituting an action without leave of the court.
Where one of two persons employs a third to
act in the joint interests of the two, representEfforts to induce stockholders to consent to ing that he is authorized to bind the other, he a lease of a portion of a company's property, is liable individually to such third person. Denis not a violation of an injunction forbidding nis v. Charlick, survivor.
32 the exercise of corporate privileges or interference with company's property. The People ex A contractor is liable to his sub-contractor for rel. Southworth v. Sharpe.
466 work done, although such work may be rejected
by the party who originally let the contract; A second order of same nature in supplemen- there being nothing in the agreement between tary proceedings supersedes the first, and for the contractor and sub-contractor, which makes disobeying first order party cannot be punished the approval of the work by the original party as for a contempt. Gaylord v. Jones. 481
necessary. Woodruff et. al. v. Ilough et. al. 77 A mortgagor is not guilty of contempt of court in selling the property of a bankrupt
When an employee under a contract for pay. under a decree of the State Court for the fore ment of money by installments for a term of closure of the mortgage, which was entered be service is discharged without cause, he can only fore the adjudication of bankruptcy, nor in en
recover for the amount that would have been tering a judgment for deficiency on such sale. due, had he continued in service, at the time the In the matter of Irving.
suit was instituted. Hamiin v. Race, 117
500 In a proceeding to punish for a contempt of
If, when discharged, he rescinds the contract, court in violating an injunction, the court bas and then sues for its breach, it may be that he jurisdiction to ascertain and include the amount can recover for all the damages he sustained of the costs and expenses of the proceeding as a during the term by the breach, if the trial was part of the fine, and if it includes items not had after the expiration of the term.
Ib. properly allowable, it is an erroneous decision merely, and not an excess of jurisdiction, which There need not be a total failure of considerawill render the commitment void. It cannot be tion in order to entitle a party to recover for reviewed on habeas corpus. People ex. rel., Woolf money had and received on breach of a con. v. Jacobs. 507 ' tract. Hawkins v. Mosher et al.