« ForrigeFortsett »
Grand Rapids & Ind, R. R. v. Huntley, 387.
Grand Tower Trans. Co. v. Ullman, 58.
Graves v. Braden, 477.
Gray v. Coan, 178.
V. Lake, 98.
Greer v. Higgins, 218.
Gridley v. City of Bloomington, 426.
Grove v. Wise, 197.
Haag v. Comm'rs of Vanderberg Co., 236.
Hagan's Petition, 311.
Harrington v. Victoria Graving Dock
Harris v. Harris, 345.
v. Thayer, 397.
v. Woodruff, 157. Hart v. Giles, 47. Harvey v. C. & P. R., 178. v. Harvey, 18,
T. H. & I. R. R., 418. Hassell v. Basket, 308. Hawk v. Marion Co., 204. Hayes v. Berwick, 344. Haywood v. Currie, 126. Hegarty v. Shine, 291. Helms v. Chadbourn, 357.
Helphenstine v. Vincennes Nat. Bk., 27, 80.
Hempy v. Ranson, 479.
Judah v. Hogan, 156.
Justice v. Nesquehoning R. R., 182.
Kenn v. Connoly, 186. Kellogg v. Wilson, 277. Kelly v. Whitney, 438. Kennedy v. Kennedy, 195. v. Otoe Bk., 379.
v. Standard Refinery, 459. Kentucky L, & Oil Co. v. N. A. Water Works, 419.
Kerr v. Kingsbury, 179.
Kimworthy v. Sawyer, 459.
Kingsland v. Jones, 19.
Kinney v. Com., 330.
Kinsley v. L. S. & M. Ry., 281.
Kinyon v. Stanton, 258.
Kipp v. Martin, 319.
Kittle v. St. John, 379.
Knickerbocker Ins. Co. v. McGinness,
Knight v. Thayer, 478.
Knisely v. Evans, 378.
Knott v. Sargent, 337.
Knox v.Cominrs. of Shawnee Co., 259.
Kolb v. O'Brien, 282.
Koplin v. Anderson, 277.
Kruaer v. Supervisors of Wood Co.,
Krutz v. Paola Town Company, 76. Kumler v. Junction Railroad Co., 315. Kyle v. Town of Logan, 38.
Lake Shore & M. S. R. R. v. Knittal, 416.
Langston v. Aderhold, 461.
Lapham v. Martin, 38.
Laveille, in re, 241.
Lawrence v. Com., 213.
Lehigh Valley Coal Co. v. Jones, 15.
Lehman v. Berdin, 269.
Leidersdorf v. Flint, 405, 495.
Leonard v. Phillips, 179.
Leper v. Lyon, 479.
Leverick v. Frank, 379.
Levi v. National Bk. of Mo., 249.
Lewis v. City of Clarendon, 287.
v. Mahon, 99,
Lister, in re, 161.
Lyman v. smilie, 297.
Lyon v. Fleahmann, 378.
Osborn v. Farwell, 18.
Page v. Clopton, 296.
v. Wallace, 98.
Paine v. Boston, 235.
Palmer v. St. Paul F. & M. Ins. Co.,
Pape v. Capitol Bank, 218.
Sav. Bk. v. Sargent, 259.
Platt v. Mut. Life Ins. Co., 321.
Poland v, Vesper, 59.
Polk v. Frash, 335.
Pool v. Higginson, 102.
v. Burton, 437.
Price v. Bannister, 96.
Pringle v. Town of Napanee, 96.
Pudney v. Burkhart, 476.
Queen v. Willings 16.
Randige v. Lyman, 178.
v. Tubbs, 231.
Rich v. State Nat. Bk. 379.
Taylor v. Rockefeller, 231, 349.
v. New Bedford B. R., 459.
Thomas v. Croswell, 343. v. Wiesman, 216.
Thompson v. Boyle, 302. v. Sage, 57.
Thurber v. Anderson, 233.
Toledo, W. & W. Ry. v. Grable, 233.
Trinidad Nat. Bk. v. Denver Nat. Bk., 171.
Truesdell v. Combs, 336.
Truitt v. People, 116.
Trustees of Ind. Spiritual Assn. v. Reynolds, 279.
of Schools v. Raukenberg, 196.
Tullis v. Bk. of Attica, 117.
Uquehart v. Brayton, 381.
Vanderslice v. Knapp, 299.
Vandweir v. Vandweir, 219.
Victor Sewing Machine Co. v. Heller,
Vineyard v. Matney, 479.
Walden v. Karr, 257. Walker v. Moors 318.
v. Shreve, 36.
Walls v. Palmer, 358.
Waukon & Miss. R. R. v. Dwyer, 39.
Webster's Appeal, 152.
Wedgwood v. C. N. W. R. R., 138.
Wells v. Am. Ex. Co., 154.
v. Stumph, 215.
West v. Krebaum, 338.
Westermann v. Cape Girardeau Co., 353.
Westlake v. St. Louis, 418.
Wheeler v. Am. Cent. Ins. Co., 199. Whipp v. State, 316.
The Central Law Journal.
SAINT LOUIS, JULY 5, 1878.
In Bamberg v. Stein, decided last month, VAN HOESEN, J. of the New York Court of Common Pleas, sitting in General Term, held that a composition in bankruptcy, under the act of June 22, 1874, operates as a satisfaction
of debts fraudulently contracted. The Special of debts fraudulently contracted. The Special Term ruled to the contrary, on the ground that sec. 5117 of the United States Revised Statutes declares that "no debt created by fraud shall be discharged by proceedings in bankruptcy." As to this, the court of review said: "A composition was not one of the proceedings in bankruptcy referred to in that section, for the law providing for composition was not enacted until 1874, and section 5117 was passed in 1873. The learned justice, at Special Term, said that the laws were in pari materia, and that therefore section 5117 must be held to apply to and qualify the act of 1874. In that he was in error. The act of 1874 is entitled 'An act to amend and supplement' the Bankruptcy Act of 1874. We refer to the title of the act of 1874 merely for the purpose of giving point to the observation that the composition proceeding is a method supplementary to that originally provided for the release of a bankrupt from his debts. A composition is an entirely different thing from a discharge. It is a new way of freeing the bankrupt. The differences between discharge and composition have been repeatedly pointed out. Lowell, J., in ex parte Morris, 12 N. B. R., 170, says that a creditor might vote on a composition though he bought his claim with intend to prevent the adoption of a pending resolution for a composition. In ordinary proceedings in bankruptcy he could not even prove his claim unless he should swear that he had not bought it with a view of influencing the proceedings. And in re Haskell, 11 N. B. R. 164, the same learned judge said that a debtor might compound with his creditor, though he could not obtain his discharge, because he had given preference after becoming insolvent." See also Wells v. Lamprey, 16 N. B. R. 205; 5 Cent. L. J. 259; re Schaffer, 17 N. B. R. 116. Vol.7-No. 1.
If, in the transfer of negotiable paper, an indorsement is omitted through accident, mistake or fraud, a good title will pass in equity by mere delivery. This is held in Hughes v. Nelson, 1 N. J. L. J. 175, a case in the New Jersey Court of Chancery, and decided last month. At law it is clear a written endorsement is absolutely indispensible to the transfer of title to negotiable paper, but a much more liberal rule prevails in equity. In equity a chose in action, even when it consists of a bond and mortgage, may be assigned by mere delivery and without any writing whatever. Galway v. Fullerton, 2 C. E. Green, 394; 2 Story's Eq. Juris., § 1047; and negotiable
paper transferred in the same mode will, in equity, confer upon the transferee all the rights which at law he would acquire by a written endorsement. Judge Story says that if, by mistake, accident or fraud, a note has been omitted to be endorsed upon a transfer, when it was intended it should be, the party may be compelled by a court of equity to make the endorsement. Story's Promissory Notes, $120; 1 Story's Eq. Juris., § 99; and in Chitty on Bills, 203, it is said that it has been adjudged that if a trader delivered a bill for a valuable consideration to another previously to an act of bankruptcy, and forgot to endorse it, he might endorse it after his bankruptcy. Smith v. Pickering, Peake's Cases, 50; Anon. 1 Camp. 492; Rolleston v. Herbert, 3 Dun. 411; and if he and his assignees refused, they might be compelled to do so by bill in equity. Ex parte Greening, 13 Ves. 206; ex parte Mowbray, 1 Jac. and Walk. 428; ex parte Rhodes, 3 Mont. and Ayt. 217; Watkins v. Maule, 2 Jac. and Walk. 243. In the case
last cited, the note had been made by the drawer for the accommodatlon of the payee who negotiated it, but omitted to endorse it. The Master of the Rolls, in speaking to the point under discussion, said: "When a note is handed over for a valuable consideration, the endorsement is mere form; the transfer for consideration is the substance; it creates an equitable right and entitles the party to call for the form. The other party is bound to do that formal act in order to substantiate the right of the party to whom he has transferred it."
In Croft v. Pilgrim, recently decided by the Appellate Court of Illinois, the plaintiff owned land in Bureau County, and defendant had
erected a dam on his own land in Stark County, which overflowed the land of plaintiff. He sued for damages before a justice of the peace in Stark County, who dismissed the suit for want of jurisdiction. On appeal this ruling was reversed, the court holding that where one performs an act in one county which damages lands in another the plaintiff may sue in either county. The reports, it appears, contain but few cases upon this point, though writers on law concur in the rule as followed in this case. 1 Chitty's Pl. 269; 3 Black, 294; 4 Com. Dig. 167, 250, 251; Gould's Pl. 108; Angell on Watercourses, § 420. This doctrine originated in Bulwer's case, 7 Coke, 63, alalthough reference is there made to the ruling in the year books in the Abbot of Stratford's case, where a similar question arose. The principle, however, in the former case is stated in broad and general terms, that "in all cases where the action is founded upon two things done in several counties, and both are material or traversable, and the one without the other doth not maintain the action, then the plaintiff may choose to bring his action in which of the counties he will." This view of the law was sanctioned in Mayor of London v. Cole, 7 Term. R, 583, where Lawrence, J., says that "the rule in Bulwer's case gives a decisive answer to the application; it shows that, where several material facts arise in different counties, the plaintiff may bring his action in either." In Oliphant v. Smith, 3 Penn. 180, it is said "that every action founded upon a local cause shall be brought in the county where the cause of action arises. The only exception to this rule is the erection of a nuisance in one county to the injury of lands in another. There the action may be brought in either," and reference is made to Bac. Ab., 56, 57, and 58; Com. Dig. 250, 251. So in Barden v. Crocker, 10 Pick. 383, the rule in Bulwer's case is endorsed in the following emphatic language by the court: "The plaintiff may unquestionably maintain his action in either county-in Bristol, where the obstruction was raised, as well as in Plymouth, where the injury was sustained. The law to be collected from the Bulwer case is decisive upon this point. When one matter in one county is depending upon the matter in another county, the plaintiff may choose in which county he shall bring his action." See also Mersey & Irwell Nav. Co. v. Douglas, 2 East. 502;
Thompson v. Crocker, 9 Pick. 59; Warren v. Webb, 1 Taunt. 379; contra, Worster v. Winnipiseogee Lake Co., 25 N. H. 525,
The question, What is a "usual covenant" in a lease, came before the English High Court of Justice lately in the case of Hampshire v. Wickens, 38 L. T. Rep. (N. S.) 408. The defendant had entered into an agreement to take a lease for a dwelling-house, to contain "all usual covenants and provisos." The lease tendered to the defendant contained a covenant that the lessee would not, without the lessor's consent, "assign, underlet or part with the premises; but such consent not to be withheld to a respectable and responsible tenant." The court held that a covenant not to assign was not a "usual" covenant. JESSEL, M. R., said: "This was decided by Lord Thurlow in.Henderson v. Hay, 3 Bro. C. C. 632; by Lord Eldon in Church v. Brown, 15 Ves. 258, and more recently by the Court of Appeal in Hodgkinson v. Crowe, L. R., 10 Ch. 622, 33 L. T. Rep. (N. S.) 388, and by Bacon, V. C., in the same case, L. R., 19 Eq. 593, 33 L. T. Rep. (N. S.) 122, so that it can not now be fairly disputed. It is true that a contrary decision of Romilly was cited-Haines v. Burnett, but that case appears to me to be opposed both to principle and authority, and it must now be treated as distinctly overruled by Hodgkinson v. Crowe. In Haines v. Burnett, Lord Romilly, without any special provision having been made in the contract to that effect, held that a covenant should be inserted making the lease determinable on the bankruptcy of the lessee or on his making any arrangement for the benefit of his creditors. That was, in fact, nothing less than a variation of the contract. I can not see any reason for rather difficult, in looking at the case, to holding such a covenant to be usual, and it is understand how it was decided. Lord Romilly seems to have thought that, in considering general covenants and all such other covenants as are usually inserted in leases of property of a similar description, some regard might be had to the peculiar nature and tenure of the property; but I can not find any evidence on that point mentioned in that report, and it would seem that the judge, from his view of the nature of the property, inserted the clause. But when we look at the reasoning of Bacon,