37 N. H. 306; Bills v. Stanton, 69 Ill. 51. The thief's insertion of the name of the payee in the blank left for that purpose, is not such an alteration as will avoid the bond. Boyd v. Kennedy, 9 Vr. 146; Dutchess Co. Ins. Co. v. Hachfield, 1 Hun. (N. Y.) 675. the fact of the bond not being payable to a particular person does not render it nonnegotiable. Smith v. County, 54 Mo. 58. If overdue bonds or coupons are stolen, and then come into a bona fide holder's hands, he can not collect their amount. Arents v. Com., 18 Gratt, 750; Vermilye v. Adams Ex. Co., 21 Wall. 138. In Everston v. Nat. Bank of Newport, 66 N. Y. 14, coupons were held to be entitled to three days grace, so that a purchaser after the time specified for payment, but before the expiration of the days of grace, was deemed a purchaser before maturity. But in Arents v. Com., 18 Gratt. 750, such coupons were held not entitled to days of grace. That the real owner gave immediate notice of the theft by publication, will not of itself deprive the holder of his right to recover. Seybell v. Nat. Currency Bank, 2 Daley, 383, 54 N. Y. 288; Murray v. Lardner, 2 Wall. 710. But after actual service of such notice, bankers and brokers should retain a memorandum, in order to identify stolen bonds if presented. Vermilye v. Adams Ex. Co., 21 Wall. 138. Mere omission to look for such notice twelve months after publication is no proof of mala fides. Rapheal v. Bank of England, 17 C. B. 161. The case of Texira v. Evans, 1 Anstr. 228, in which Lord Mansfield held that an agent might, under a parol authority, fill in blanks in a deed, has been overruled in England and in some of the states, although followed in others. In a note to Preston v. Hall, (23 Gratt. 600), 21 Am. L. R. 699, nearly all the American cases are collected, and the impossibility of any attempt to collect them shown.

For a

further statement of the authorities, see the elaborate note by Mr. Stewart, in 29 N. J. (Eq.) 587.

THE Solicitor's Journal says: Respect for the office of judge is essential to the proper administration of justice. On the other hand, may we be allowed to suggest for the consideration of learned judges during their vacation rambles, that judicial patience and courtesy are pearls of great price. "Sir," said Lord Nottingham to Mr. Somers, who apologized for rising after five or six other counsel on the same side, "pray go on. I sit in this place to hear everybody."




The repeal of the bankrupt law, which took effect on the first day of September, revives and brings into practical operation the assignment and insolvent laws of the different states, which, since the act of Congress of 1867, have been in a state of practical suspension. As it becomes impracticable for insolvent debtors to escape liability, by invoking the aid of the national bankrupt courts, resort will be had to state tribunals, either to obtain discharge from liability, or to secure a ratable distribution among their creditors of their estates.

As creditors find the condition of

delinquent debtors becoming more hopeless, each will seek for himself such advantages as may be obtained by superior diligence in pressing his claims for settlement. Complaisant debtors will seek by preferences such as were inhibited by the bankrupt law to give to favored creditors such advantages as their feelings of partiality may prompt. When local statutes do not intervene, distant creditors will become painfully aware of the old doctrine that transfers of property by insolvent debtors to one or more creditors, by way of preference, in satisfaction of their debts, in the absence of actual fraud, instead of being held constructively fraudulent, as under the repealed act, will be sustained as valid and binding, notwithstanding their disastrous effects upon those less favored. Keen v. Preston, 24 Ind. 395; Rankin v. Lador, 21 Ala. 380. The same doctrine has been declared where the property was conveyed in trust to pay certain preferred creditors, even where the execss was to be returned to the debtors. Johnson v. McGrew, 11 Ia. 151; Claflin v. Maglaughlin, 65 Penn. St. 492.

There are many other features of the law governing voluntary assignments, heretofore regarded as obsolete, which have, by reason of the change, become of practical importance. When the asssignment is by deed, it is usual, and in some cases essential, to require the assent of the creditors for whose benefit it is made. Especially is this true when there are conditions, such as a release of the debtor or an extension of time

upon which the assignment is made. And when the deed stipulates for the assent of creditors to be evidenced by their execution of the instrument, they must so signify their assent, otherwise they cannot take under the instrument. 2 Story Eq. Jur. §1036, cases cited in notes. When, however, there is no stipulation for express assent, it has frequently been held that it would be presumed, in the absence of evidence of dissent, regardless of whether the assignment is with preferences or not. Ingram v. Kirkpatrick, 6 Ired. Eq. 462, [Citing with approval Walker v. Crowder, 2 id., 478, and Moore v. Collins, 3 Dev. 126;] Stewart v. Hull, 3 B. Mon. 218; McBride v. Bohanan, 50 Ga. 155; Furman v. Fisher, 4 Cold. 626; Green v. Banks, 24 Tex. 508; Gale v. Mensing, 20 Mo. 461. The doctrine, however, has been qualified by the proviso that the assignment is clearly beneficial to the creditor, in the sense that it does not extend the time of payment, or require any concessions from the creditor disadvantageous to himself. Evans v. Loman, 21 Ala. 333; Rankin v. Lodor, Id. 381; England v. Reynolds, 38 Id. 370; Kolkman v. McElderry, 16 Md. 56; Hempston v. Johnson, 18 Ark. 123; Lawrence v. Davis, 3 McLean, 177. We believe the rule that assent of creditors will be presumed, obtains in early decisions in New York, while the courts of Massachusetts and those of England make the validity of the assignment dependent upon the assent of the beneficiary, and hold that without such assent the assignment is revocable at the will of the assignor. 2 Kent. Com. 532-533, note (a). When the assignment is directly to the creditor or creditors to be benefited, there seems no doubt that it must be assented to by them in order to become binding, for the reason that when there are but two parties to a transaction, it requires a mutual concurrence of minds to render a contract binding. Lawrence v. Davis, 3 McLean, 177; Burrell on Assignments, $$124, 125. But when the assignment is to trustees for the benefit of creditors named, whether with or without preferences, the authorities, in the absence of controlling statutory provisions, are far from uniform as to whether the assignment will be binding prior to the assent of beneficiaries; many of them holding such assent unnecessary. The legal estate vests in the trustees, and a court of

equity will compel the execution of the trusts for the benefit of creditors, though they have not consented to the conveyance. 2 Kent. Com. 543, and cases cited. At all events such an assignment seems irrevocable by the assignor. Burrell on Assignments, §125, and cases cited in notes.

The general doctrine governing assignments by insolvent debtors, and the distribution of their estates, has been variously modified or entirely abrogated by statute in many, if not most of the states, and the only reason why these statutes have, until recently, been of little practical importance, is that their operation has been suspended by the national bankrupt law, by which they were superseded, especially in those particulars most beneficial to the debtor, which might serve as an inducement to the assignment. Those states whose statutes provide for an unconditional discharge of the debtor, or exemption of subsequently acquired property from prior debts, upon a surrender of his property and a compliance with the conditions of laws resembling more or less the national act lately repealed, are California, Idaho, Maryland, Michigan, Nevada, Vermont and Wisconsin, and probably Arkansas, as an old statute, omitted from the last revision of the statutes of this state, on account of its conflict with the bankrupt law, may be regarded as revived by the repeal. The Connecticut statute discharges the debtor upon payment of 70 per cent. of the amount of his indebtedness, and contains various provisions for the payment in full of creditors of a certain class. The Massachusetts statute, which is published in connection with the decisions of the courts of that state, in Cutter's Insolvent laws, requires, as a condition to discharge, in case of the first application of a debtor for the benefit of its provisions, a payment of 50 per cent. of his liabilities, or the assent of a majority in number and value of creditors who prove their claims. In case of a second application by the same debtor, it requires payment of 50 per cent., or the assent of threefourths in number and amount of such creditors as have proved their claims. In Louisiana, the debtor may be discharged from liability for prior debts by obtaining the consent of a majority of his creditors. In Maine, New Hampshire, New Jersey and South Caro



Supreme Judicial Court of Massachusetts, July
Term, 1878.

[Filed September, 1878.]

HON. HORACE GRAY, Chief Justice.







Associate Justices.

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A MADE his will in 1862, which recited that, "wishing to contribute my mite toward suppressing the rebellion and restoring the Union, I give and devise the residue of my estate to the United States of America," and died in 1873: Held, in a suit by the executors of the will to ascertain to whom the money should be paid, that the devise to the United States is valid and binding.

lina, the discharge only affects the demands of CONSTRUCTION OF WILL-DEVISE TO THE creditors who assent to the assignment, and participate in the dividends. The only discharge provided for by statute in Illinois, Indiana, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, and West Virginia is from imprisonment and future arrest on civil process for prior debts scheduled by the debtor. All assignments made under the statutes of Alabama, Dakotah, Iowa, Kansas, Minnesota, Missouri, Nebraska, inure to the benefit of all creditors who choose to participate, but the assignment does not release the debtor from liability without full payment, or consent of all his creditors, either of which, of course, will serve the purpose without the intervention of a statute. In the other states and territories, it is believed, the insolvent debtor may make assignments to trustees for the benefit of creditors, with or without a preference, to one or more, and if the assignment is made in good faith for the benefit of those having bona fide demands against the assignor, the assignee or assignees who accept the trust will be required to execute the same. In the light of the alteration of the relations between debtor and creditor which the repeal of the national act inaugurates, the state insolvent and assignment laws supply a field of inquiry, practically new to the younger members of the profession, whose experience in practice extends back no more than ten or twelve years. To older members of the profession the condition of things presents the necessity of furbishing up some of their old learning. Constitutional limitations upon the power of state legislatures to pass laws which have a tendency to retroact upon contracts; the effect of such acts, when constitutional, upon residents of different states, and between residents of the same states respectively; judicial construction placed upon legislation of this kind by courts of the states and by those of the general government; when the statute impairs the obligation of the contract or only affects the remedy, are questions possessing renewed interest to those engaged in commercial practice, and will be reserved for future consideration. W.

(To be continued.)

A LATE Irish statute in regard to the public health prescribes a penalty of $10 for any person having a "wake" over a person dying of an infectious disorder.

This was a bill in equity by the executors under the will of John Gardner, late of Boston, deceased, brought before the Justices of the Supreme Judicial Court. The bill alleges that the will of said Gardner, which bears date Jan. 17, 1862, was duly proved on the 17th of April, 1876, and letters testamentary issued to the plaintiffs, as executors; that the will, after making sundry legacies and bequests, provided in terms as follows: "5th. Wishing to contribute my mite towards suppressing the rebellion and restoring the Union, I give and devise the rest and residue of my estate, after paying the donation and providing for the payment of the annuities aforesaid, to the United States of America." The bill further alleges that the plaintiffs are prepared to pay the residue of the estate to the party or parties legally entitled; that the United States of America claim to be entitled to the said residue, and have, by their attorney, forbid them paying it to any other person; that the heirs at law also claim to be entitled to said residue, and have forbid them paying it to the United States. They, therefore, ask that each party be required to interplead, and that this court will ascertain and decide whether the said heirs have any and what rights in the premises. To this, answers were filed by the United States and by the heirs at law of Gardner, both claiming the property.

Geo. P. Sawyer, U. S. Att'y, for the United States; C. C. Read, for the heirs.

GRAY, C. J., delivered the opinion of the court: The simple question in this case is, whether the residuary devise and bequest to the United States of America is valid, and upon this question, after free examination of the authorities cited in the learned argument for the next of kin, we can have no doubt.

The introductory clause of this gift merely expresses the motive of the testator, and in no way defines or limits the purposes to which the gift may be applied by the legatee.

In England bequests for the benefit of the coun

try or for the payment of the national debt have always been held valid. Newland v. AttorneyGeneral, 3 Wend. 684; Nightingale v. Colburn, 5 · Hare, 484, and 1 Phillips, 584; Aston v. Langdale, 15 Jur. 868. While Massachusetts was an English colony, that eminent lawyer, Sergeant Maynard, gave an opinion that a bequest "to the public use of the country of New England" was a good bequest. Hutchinson's Hist. Mass. (2d ed.) 101.

The property or money, when received by the United States, must doubtless be applied to public purposes authorized by the constitution and laws. But the right to receive money or property voluntarily contributed is not a separate power, but a capacity belonging to the United States as a body politic and incident to the right of sovereignty, and to which may be applied the words used by eminent jurists, in speaking of the implied capacity of the United States to enter into contracts.

Chief Justice Marshall said: "The United States is a government, and consequently a body politic and corporate, capable of attaining the objects for which it was created by the means which are necessary for their attainment. This great corporation was ordained and established by the American people and endowed by them with great power for important purposes. Its powers are unquestionably limited; but, while within those limits, it is a perfect goverment as any other, having all the faculties and properties belonging to a government, with a perfect right to use them freely in order to accomplish the objects of its institution. It will certainly require no argument to prove that one of the means by which some of these objects are to be accomplished is contract; the government, therefore, is capable of contracting, and its contracts may be made in the name of the United States." United States v. Maurice, 2 Brock. 96, 109.

So Mr. Justice Story, delivering the judgment of the Supreme Court upon the question "whether the United States have, in their political capacity, a right to enter into a contract, or to take a bond in cases not previously provided for by some law," said: "Upon full consideration of this subject we are of opinion that the United States have such a capacity to enter into contracts. It is, in our opinion, an incident to the general right of sovereignty, and the United States, being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which these powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers. To adopt a different principle would be to deny the ordinary rights of sovereignity not merely to the general government, but even to the state government, within the proper sphere of their own powers, unless brought into operation by express legislation. A doctrine to such an extent is not known to this court as ever having been sanctioned by any judicial tribunal." United States v. Tingey, 5 Pet. 115, 128.

In the later cases these views have been repeatedly affirmed, and held to cover the taking of security for debts to the United States. United

States v. Bradley, 10 Pet. 343, 359; United States v. Linn, 15 Pet. 290, 311; Nelson v. Lagon, 12 How. 98, 107, 108; United States v. Hodson, 10 Wall. 395, 407, 408. Upon the same principle the power to take property by the right of eminent domain for the public use has been declared by the Supreme Court to exist in the United States, not by virtue of any express grant in the constitution, but as an inherent attribute cf sovereignty. Kohl v. United States, 91 U. S. 367.

In Cotton v. United States, 11 How. 229, 231, Mr. Justice Grier said: "Every sovereign state is of necessity a body politic, or artificial person, and as such capable of making contracts and holding property, both real and personal."

The Smithsonian Institute at Washington was erected by the bequest of an Englishman, established by a decree of Lord Langdale, as Master of the Rolls, and accepted by act of Congress. President of the United States v. Drummond, cited in Wicker v. Hume, 7 H. L. Cas. 124, 155, U. S. St., July 1st, 1388.

To hold that the supreme government of the country is vested by the constitution with the power to levy and collect taxes and duties to pay the debts, and provide for the common defense and general welfare of the United States, and to borrow money on the credit of the United States, and capable of making contracts, and of accepting security for debts, and, in case of necessity, of taking private property by the right of eminent domain, has no capacity to receive a voluntary devise or bequest, is a conclusion that nothing short of an express statute, or a binding judicial decision, could justify us in adopting.

The decision in United States v. Fox, 94 U. S. 315, affirming s. c., 52 N. Y. 530, by which it was held that a devise by a citizen of New York of real estate in New York, to the government of the United States, was void, proceeded upon the ground that the law of New York allowed real es tate to be devised only to natural persons and to corporations established by the legislature of that state. That decision has no application to this case. The statutes of this commonwealth, where the testator had his domicil and part of his real estate lay, make no restriction as to who may be devisees or legatees; and there is no evidence before us that any such restriction is made by the law of Iowa, where the rest of the real estate is situated. Gen. Stat. ch. 92, §§ 1, 2; Jackson v. Phillips, 14 Allen, 539, 552, 589, 591; Fellows v. Miner. 119 Mass. 54; Loring v. Marsh. 6 Wall. 337, 355; Ould v. Washington Hospital, 95 U. S. 303; 6 Cent. L. J. 191.

We have had some hesitation in expressing an opinion upon the validity of this devise, so far as it affects rents of real estate with which executors ordinarily have no concern, and devised in part from lands situated in another state. But, as it appears that the executors, acting for the benefit of the estate and by the consent of all parties in interest, have managed and received the rents of the lands there as well as of the lands here, they are bound, under the laws of this commonwealth, to account in its courts for all the rents so received.

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1. EXCHANGE OR EXPRESS CHARGES IN NOTE SURETY'S LIABILITY.-In suit against a surety whose principal had agreed to execute and deliver for the purchase price of goods sold him, promissory notes payable at a certain price: Held, that a provision inserted without the surety's consent, in the notes, for payment of exchange or express charges, did not add to or vary the surety's liability, as it was the promissor's duty, independently of agreement, to be at any expense necessary in the transmission of the money to the place of payment.

PROVISION FOR ATTORNEY'S FEE VOID.-Where in each of several promissory notes varying from $41.50 to $194.12, there was inserted a provision for an attorney's fee of $15 should any proceedings be instituted for collection: Held, that this was absolutely void as against the policy of the laws limiting attorney's fees and the rate of interest.

3. LIABILITY OF SURETY.-A surety's liability continues, where the provision which would add to it without consent is void as contrary to law.

COOLEY, J., delivered the opinion of the court: The action in this case is brought to recover from William Taylor and Aaron B. Taylor, as principals, and Joseph K. Taylor, as surety, the amount of several promissory notes given by the principals, and for the payment of which the surety is supposed to have bound himself by a bond executed before the notes were given.

The notes were given in pursuance of a certain agreement under which William and Aaron B. Taylor became agents for the plaintiff in the sale of musical instruments. They also agreed to buy certain instruments, and "to execute and deliver to said Bullock their equal promissory notes, executed by them and payable to his order for the full amount of the aggregate prices of said instruments," and that said notes shall be due and payable at the Second National Bank of East Saginaw, Michigan, in three equal instalments of six, nine and twelve months from the date of each delivery of said instruments, with interest thereon at the rate of ten per cent. per annum from the date of each of said notes." The bond signed by Joseph K. Taylor was

conditioned for the performance by his principals of the stipulations of this agreement.

The question in the case arises on the notes which were afterwards given. The following is a copy of one of them:

"$70 83. MOUNT PLEASANT, April 12, 1875. Nine months after date we promise to pay to R. D. Bullock or order, the sum of seventy 83-100 dollars value received, with ten per cent, interest, with current exchange or express charges. If this note is not paid at maturity, it is to draw ten per cent. from date, and the undersigned agree to pay fifteen dollars attorney's fees over and above all taxable cots, should any proceedings be instituted to collect this note, payable at Second National Bank, East Saginaw. WM. TAYLOR & Co."

The surety insists that such notes are not within the terms of his undertaking; first, because they contain a promise to pay exchange or express charges in addition to the sum owing; second, because they provide for the payment of an attorney's fee, to which he has never consented, and third, because, being for the payment of uncertain sums, they are not promissory notes at all.

We quite agree with counsel for the plaintiff, that the provision for the payment of exchange or express charges is merely nugatory. By the agreement as well as by the terms of the notes, they were made payable at East Saginaw; and it therefore becomes the duty of the promissors to be at any expense necessary in the transmission of the money to that place. Whether they sent by draft or by express, the expense would equally fall upon them, and an express promise to pay it could add nothing to their liability. The provision on the subject may have been inserted in the notes for a more perfect understanding of the agreement; but the surety could not complain of it, because it could not in any way add to his liability or vary his undertaking.

The agreement embodied in some of the notes for the payment by the makers of an attorney's fee, in case any proceedings are instituted for collection, presents a somewhat different question. If the agreement is valid, and constitutes a part of the obligation of the makers, upon which a recovery may be had in a suit for the amount owing on the note, then it will be conceded the notes which contain it are not within the terms of the obligation the surety has assumed. The surety undertook, for the payment of the price of goods to be sold, and not for any penalty for failure to pay promptly; and his promise can not be enlarged in the slightest particular without his consent. Smith v. Sheldon, 35 Mich. 42. It is suggested, howeverand there is some authority for that view-that the provision for the payment of an attorney's fee is only the personal undertaking of the makers, which, from its very terms, does not become operative until suit brought, and, consequently, can not be counted upon in the suit for collection of the note, and is no more a part of the obligation for which the surety has undertaken than if it were a promise evidenced by a separate instrument. A more important suggestion is, that the promise is absolutely void.

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