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ing the unanimous opinion of the court, replied: Held, that as the language of the guaranty will bear * Doubtless, a decree of a court having jurisdiction to either construction, that the amount expressed is inmake the decree cannot be impeached collaterally; tended as the limit of the liability of the guarantor, or but, under the act of Congress, the District Court had of the whole credit to be given to the principal, parol no power to order a sale which should confer upon evidence is admissible to show in what sense the parthe purchaser rights outlasting the life of French For- ties themselves intended that the words should be rest (the owner). Had it done so, it would have tran- understood. Ib. scended its jurisdiction. 9 Wall. 350.

NEGLIGENCE. So a departure from established modes of procedure 1. Liubility of the occupant of premises to persons who will often render the judgment void ; thus, the sen

come there by invitation.— The owner or occupant of tence of a person charged with felony, upon convic- premises who, expressly or impliedly, invites another tion by the court, without the intervention of a jury, to enter thereon, owes a duty to such person to keep would be invalid for any purpose. The decree of a

his premises in a safe condition, free from obstruocourt of equity upon oral allegations, without written tions, pitfalls, or other dangerous conditions; and for pleadings, would be an idle act, of no force beyond breach of this duty, causing injury to such person, he that of an advisory proceeding of the chancellor. And is liable in damages. But this duty does not extend the reason is that the courts are not authorized to to that part of the premises in which such person is exert their power in that way.

not, expressly or impliedly, invited or expected to The doctrine stated by counsel is only correct when

enter. Lester v. Lautz. Opinion by Smith, J. the court proceeds, after acquiring jurisdiction of the 2. Defendants occupied four stores adjoining and cause, according to the established modes governing opening into each other. The northerly store, No. 1, the class to which the case belongs, and does not was occupied by workmen, and was used for packing transcend in the extent or character of its judgment goods and storing empty boxes. In this store was a the law which is applicable to it. The statement of hatchway for operating an elevator, which was open the doctrine by Mr. Justice Swayne in the case of and unprotected when the elevator was in use, and Cornell v. Williams, reported in the 20th of Wallace, is was close to and directly opposite an opening, as large more accurate. “The jurisdiction," says the justice,

as a door-way, in the partition wall between store No. “having attached in the case, every thing done within 1 and the southerly store No. 2. Plaintiff called at the power of that jurisdiction, when collaterally ques- the office, which was in store No. 2 to purchase some tioned, is held conclusive of the rights of the parties, empty barrels, and was directed to see Mr. B. about it, unless impeached for fraud. 20 Wall. 250.

who was in the southerly store No. 4, where he was usuIt was not within the power of the jurisdiction of ally employed, as the plaintiff knew. Instead of going the District Court to proceed with the case, so as to where B. was employed, he turned the other way and affect the rights of the owner after his appearance had entered the opening into store No. 1, and fell into the been stricken out, and the benefit of the citation to hatchway, etc. Held, that he could not recover, that he him thus denied. For jurisdiction is the right to bear was rightly nonsuited. Ib. aud determine; not to determine without hearing.

NEGOTIABLE PAPER. And where, as in that case, no appearance was allowed, there could be no hearing or opportunity of

1. Holder cannot be compelled by accommodation inbeing heard, and, therefore, could be no exercise of

dorser to enforce mortgage against maker in first injurisdiction. By the act of the court, the respondent

stance.-An indorser, without consideration and solely was excluded from its jurisdiction.

for the accommodation of the maker or drawer, and The judgment of the corporation court is affirmed.

known to be such by the holder, who discounted the paper on the faith of a mortgage executed by the

maker or drawer, cannot compel or require the holder GENERAL TERM ABSTRACT.

to resort to his mortgage security in the first instance.

First Nat. Bank of Buffalo v. Wood. Opinion by SUPERIOR COURT OF BUFFALO-GENERAL TERM,

Smith, J.
DECEMBER, 1876.

2. So, where a person makes a note without consider

ation and solely for the accommodation of the inGUARANTY. 1. Construction of: parol evidence. Where the

dorser, and is known to be such by the holder, he canwords of a guaranty will bear either construction,

not compel or require the holder, who discounted the that the guaranty should expire when advances to the

note on the faith of a mortgage executed by the inamount therein stated and limited had been given and

dorser, to resort to his mortgage security in the first

instance. paid, or that it should continue in force and be good

First Nat. Bank of Buffalo v. Alberger, for advances thereafter made to the extent of the

Opinion by Smith, J. amount limited, the words will be read in that sense in

STATUTORY CONSTRUCTION. which the parties themselves intended they should be Construction of statute : municipal body may sue, notunderstood; and for this purpose evidence of extrinsic withstanding act of 1875, chapter 49.- Held that the act facts and circumstances, under which the instrument of 1875, chapter 49, giving to the people of the State a was given, is admissible. White's Bank of Buffalo v. right of action to recover any money, funds, credits or Myles. Opinion by Smith, J.

property held or owned by any municipal corporation, 2. The guaranty was in these words: “Please dis- etc., which have been without right obtained, received, count for A. B. to the extent of $4,000. He will give converted or disposed of, does not take away the right you customers' paper as collateral. You can also con- of action existing in the municipal body, nor confer sider me responsible to the bank for the same. W. upon the people an exclusive right; that a right of Myles.” Plaintiff discounted paper to the amount of action for the same thing may exist at the same time $4,000 and over, which the principal had paid, and this in two distinct corporations or individuals. City of action was brought for paper thereafter discounted. Buffalo v. Lyon. Opinion by Smith, J.

WITNESS.

66

Summonses were issued and served, and the defen 1. Competency of witness convicted of perjury: evi- ants appeared and filed a plea to the jurisdiction dence of conviction.- Under a statute providing that the court, in which they alleged that the suit is not every person who shall willfully and corruptly swear, proceeding in rem, but a proceeding against the perso etc., shall, upon conviction, be adjudged guilty of of the defendants, and that they reside outside of t1 perjury, and shall not thereafter be received as a wit- jurisdiction of the court. They also filled an exce ness to be sworn in any matter or cause whatever, tion that the plaintiff cannot proceed by provision until the judgment against him be reversed” (2 Rev. seizure because the services for which he claims paj Stat. 681); Held, that a person who has been convicted ment did not arise while the steamboat was navigatin by the verdict of the jury, but upon whom sentence or trading within the State. has not been pronounced, is a competent witness Pursuant to the order of the court, the steambos against the person who suborned him. The People v. was surrendered to the defendants, and they gave th Blaufus. Opinion by Clinton, Ch. J.

usual bond for value. Defendants filed an answer de 2. The judgment is the only legal evidence of the nying debt and pleading part payment, and other pro party's guilt, for the purpose of rendering him incom- ceedings were had. Pending the litigation defendant petent to testify. Even the admission of the party became bankrupts and Norton was appointed an himself will not suffice without a copy both of the qualified as assignee. Upon a suggestion of that fac judgment and the conviction. Greenl. Ev., § 375; the court made an order that the assignee be made i People v. Whipple, 9 Cow. 707; People v. Herrick, 13 party "in his capacity aforesaid," and process wa Johns. 82; Hilts v. Colven, 14 Johns. 182; Com. v. issued and served upon him. Subsequently judgment Green, 17 Mass. 537. Ib.

was rendered against the assignee for the sum claimed

“with costs and privilege on the steamboat," and he LIABILITY OF GOVERNMENT FOR LOSS OF took an appeal to the State Supreme Court, setting up CHARTERED VESSEL.

the same grounds taken by the original defendants, N the case of Shaw, appellant, v. The United States,

and also that the decree in bankruptcy divested the IN just decided, the Supreme Court of the United

subordinate court of all authority to proceed in the States hold that where a steamer, lying at the time at

case, and that the court had no jurisdiction to render the wharf at St. Louis, was taken into the service of judgment against him. The State Supreme Court the United States, by a quarter-master of the United

affirmed the judgment of the lower court, and the States, for a trip to different points on the Mississippi assignee took error to this court. The decision of the river, the compensation for the service required being

State court was affirmed, the court holding that the stated at the time to the captain, and no objection be

objection raised to the jurisdiction of the State tribuing made to the service or compensation, and the ser

nal on account of the bankruptcy proceedings was not vice was rendered, the possession, command and man

valid. In regard to the other objections, the court say agement of the steamer being retained by its owner,

that, while libels in rem to enforce a maritime lien in such a case the United States were charterers

are exclusively cognizable in the courts exercising adof the steamer upon a contract of affreightment, miralty jurisdiction, the difficulty in the way of the and were not liable under such a contract to the

present plaintiff is that the closing words of the judge owner for the value of the steamer, though she was

ment to which he refers are wholly inoperative and destroyed by fire whilst returning from the trip with

incapable of being enforced for any such purpose. out his fault. The case follows that of Reed v. United Special proceedings of the kind are utterly unavailing, States, 11 Wall. 591. The court also say that not being

where the defendant is adjudged bankrupt pending liable to the claimaut, the United States would, of

the action, and the suit is allowed to proceed to judgcourse, not be liable to insurance companies subro

ment under the twenty-first section of the bankrupt gated to his rights. Macardier v. The Chesapeake Ins. act, for the mere purpose of establishing the validity Co., 8 Cranch, 39; The Schooner Volunteer, 1 Sumn.

of the claim and the amount due to the creditor. Nor 551; The Brig Spartan, 1 Ware, 153; Donohue v. Kittel,

would it benefit the present plaintiff, in the support of 1 Cliff. 138.

his second assignment of error, even if it were conceded that the effect of the judgment is to secure to

the plaintiff the alleged preference, for the reason that JURISDICTION OF STATE COURTS OVER AC

such a claim for services, rendered to a domestic vessel, TIONS RELATING TO VESSELS.- EFFECT OF BANKRUPTCY PROCEEDINGS ON PEND

does not, under the recent decision of this court, give

rise to a maritime lien in favor of the person renderING ACTION AGAINST BANKRUPT.

ing the services. The Lottawanna, 21 Wall. 571. SeaIN N the case of Norton, Assignee of Hein, and Hein, men have a maritime lien for their wages wherever the

bankrupts, plaintiff in error, v. Switzer, decided by services may be rendered, but that just rule was never the Supreme Court of the United States at the present extended to the master, except in cases where the lien term, Switzer sued the Heins as owners of the steam- is created by statute. Smith v. Plummer, 1 B. & Ald. boat Frolic in an action of assumpsit in a Louisiana 575; Wilkins v. Carmichael, 1 Doug. 101; Hussey y. State court. His petition alleged that the defendants Christie, 9 East. 426; Machlachlan on Ship. (2d ed.), 198 ; were indebted to him for services rendered as master Maude & P. on Ship. (3d ed.), 91; The Orleans, 11 Pet. and superintendent in repairing the vessel. He also 184. Authority does not exist in the State courts to alleged that he was a privileged creditor, that the hear and determine a suit in rem, as in the aduiiralty steamboat was about to leave the jurisdiction, and courts to enforce a maritime lien. Doubt upon that that he was apprehensive he should lose his claim if subject cannot be entertained, but the recent decisshe should depart before it was satisfied. Where- ion of the court holds that such a lien does not arise fore he prayed for a writ of provisional seizure and in a contract for repairs and supplies to a vessel in her for process to compel the appearance of the defend- home port, and if not, then it follows that in respect ants.

to such contracts it is competent for the States, under

The ex

IN terror to the Circuit Court of the United States

be prior decisions of the court, to create such liens as is, shall “die by suicide (sane or insape).” These words heir legislatures may deem just and expedient, not must receive a reasonable construction. If they be mounting to a regulation of commerce, and to enact taken in their strictly literal sense, their meaning easonable rules and regulations prescribing the mode might admit of discussion, but it is obvious they were t their enforcement. The Belfast, 6 Wall. 645; The not so used. "Shall die by his own hand, sane or inloses Taylor, 4 id. 427; Hine v. Trevor, id. 569.

sane," is, doubtless, a more accurate mode of expres

sion, but it does not more clearly declare the intention LIFE INSURANCE – CONDITION AGAINST

of the parties. Besides, the authorities uniformly

treat the terms “suicide" and “dying by one's own SUICIDE, “SANE OR INSANE.”

hand,” in policies of life insurance, as having the same UNITED STATES SUPREME COURT - OCTOBER

meaning, and the popular understanding accords with TERM, 1876.

this interpretation. Tindall, Chief Justice, in Borra

dale v. Hunter, 5 Mann. & Grang. 668, says: BIGELOW, administratrix, etc., v. THE BERKSHIRE pression, 'dying by his own hand,' is, in fact, no more LIFE INSURANCE ('OMPANY.

than the translation into English of the word of Latin A condition in a life insurance policy that the policy should

origin, 'suicide,'” and he construed the terms as be void if the insured should die by suicide, sane or synonymous. Life insurance companies, in adopting insane," held to avoid the policy in case insured died by his own hand, notwithstanding he was of unsound

one phrase or the other, have used them without dismind and wholly unconscious of the act.

tinction as conveying the same idea. If the words,

"shall commit suicide," standing alone in a policy, for the Northern District of Illinois. Action import self-murder, so do the words, “shall die by upon a policy of life insurance. The opinion states

his own hand.” Without qualification, they mean the case.

in legal contemplation the same thing, and when acMr. Justice Davis delivered the opinion of the companied by qualifying words the same construction coart.

must be adopted, whether the general words consist This is an action on two policies issued by the de

of either mode of expression. This being so, there is fendant on the life of Henry W. Bigelow. Each con

no difficulty of defining the sense in which it was intaived a condition in avoidance, if the insured should tended the language of this condition should be redie by suicide, sane or insane, and in such case the ceived. Felonious suicide was not alone in the concompany agreed to pay to the party in interest the templation of the parties to it. If it had been, there surrender value of the policy at the time of the death

was no necessity of adding any thing to the general of Bigelow. The defendant plead that Bigelow died

words. These had been construed by many courts of from the effects of a pistol-wound, inflicted upon his high authority to exclude self-destruction by an inperson by his own hand, and that he intended by this

sane man. Such a man could not commit felony, but means to destroy his own life. To this the plaintiffs

he could take his own life with a set purpose to do so, replied, that Bigelow, at the time when he inflicted conscious of the physical nature of the act, but unthe pistol-wound upon his person by his own hand, conscious of the criminality of it. As the line bewas of unsound mind and wholly unconscious of the act. tween sanity and insanity is often shadowy and diffiThe defendant filed a demurrer to this replication,

cult to define, this company thought proper to take which was sustained by the court below, and the plain

the subject from the domain of controversy, and by tiffs bring the case here for review.

stipulation exclude all liability by reason of the death There has been a great diversity of judicial opinion of the party by his own act, whether he was at the upon the question, whether self-destruction by a man, time a responsible moral agent or not. Nothing can in a fit of insanity, is within the condition of a life be clearer thau that the words “sane or insane" were policy, where the words of exemption are that the introduced for the purpose of excepting from the insured “shall commit suicide" or die by his own

operation of the policy any intended self-destruction, hand,” which is only another form of expression for whether the insured was of sound mind or in a state suicide. But since the decision in Life Insurance of insanity. These words have a precise, definite, Company v. Terry, 15 Wall. 580, the question is no well-understood meaning. No one could be misled longer an open one in this court. In that case the by them, nor could an expansion of this language words avoiding the policy were, "sball die by his own more clearly express the intention of the parties. In hand," and we held that they referred to an act of the popular, as well as in the legal sense, suicide criminal self-destruction and did not apply to an in- means, as we have seen, the death of a party by his own sane person who took his own life. But the insurers voluntary act, and this condition, based, as it is, on in this case have gone further, and sought to avoid the construction of the language, informed the holder altogether this class of risks. If they have succeeded of the polioy that if he purposely destroyed his own in doing so, it is our duty to give effect to the con- life the company would secure exemption from liatract, as neither the policy of the law nor soundbility. It is unnecessary to discuss the various phases morals forbid them to make it. If they are at liberty of insanity in order to see whether a possible state of to stipulate against hazardous occupations, or un- circumstances might not arise which would defeat the bealthy climate, or death by the hands of the law, or condition. It will be time to decide this question in consequence of injuries received when intoxicated, when such a case is presented. For the purposes of surely it is competent for them to stipulate against an this suit it is enougb to say, that if the assured be conintentional act of self-destruction, whether it be the scious of the physical nature of the act he is commitvoluntary act of a moral agent or not. It is not per- ting, and intended by it to cause his death, the policy ceived why they cannot limit their risks in any man- is avoided, although, at the time, he was incapable of uer they see fit, provided the assured is told in proper judging between right and wrong, and did not underlanguage of the extent of the limitation, and it is not stand the moral consequences of what he was doing. against public policy. The lauguage of this stipulation 'Any other construction would deny to the insurance companies the right to declare the sense in which they Tucker v. Tucker Manufacturing Co. - Action for the used words of limitation in their policies.

[graphic]

infringement of a patent for a new and improved These companies have only recently inserted in the method of superficially bronzing or coloring iron, issued provisos to their policies, words of limitation corre- to complainant December 15, 1863; re-issued Septemsponding to those in this case, and for this reason there ber 11, 1866. Decree for complainant for accounting has been but little occasion for courts to pass upon and injunction. Opinion by Clifford, J. them. But the direct question presented here was be- Collender v. Came et al.-Suit for infringement of a fore the Supreme Court of Wisconsin in 1874 (34 Wis.

patent issued to complainant, for a new and useful im. 389), and received the same solution we have given it. provement in uniting comparatively hard substances It is true in that case there were more words used to elastic foundations of billiard cushions, on the 12th thau are contained in this proviso, but the effect is the of January, 1858, and surrendered and re-issued, and same as if they were omitted. To say that the com- subsequently extended. Decree for complainant for pany will not be liable if the insured shall die by

an accounting and injunction. Opinion by Clifford, J. "suicide, felonious or otherwise,” is the same thing Storrs v. Howe et al.--Suit for infringement of patas saying if he shall die by “suicide, sane or insane." ent issued June 8, 1858, to complainant, for a new and They are equivalent phrases, and the use of both was, improved pressing machine for tailors use, and subsedoubtless, to intensify the meaning of the parties. quently extended. Decree for complainant for an acNeither the reasoning nor opinion of the court is at count and injunction. Opinion by Clifford, J. all affected by the introduction of words which are Stevens, Trustee, v. Pritchard.-Suit for infringement not common to both policies.

of a re-issued patent. of Joseph L. Joyce, for a new It remains to be seen whether the court erred in sus- and useful improvement in making boots and shoes. taining the demurrer. The replication concedes in Decree for complainant for an account and injunction. effect all that is alleged in the plea, but it avers that Opinion by Clifford, J. the insured at the time “was of unsound mind, and Pickering et al. v. Phillips et al.-Suit for infringewholly unconscious of the act." These words are

ment of patent issued August 1, 1865, to George Munro, identical with those in the replication to the plea in for a new and useful improvement iu moulding cruciBreasted v. The Farmers' Loan and Trust Company, 4 bles and pots, which patent was surrendered and subHill, 73, and Judge Nelson treated them as an aver- sequently re-issued to plaintiffs. Deoree for plaintiff ment that he assured was insane when he destroyed for an account and injunction. Opinion by Clifford, J. his life. They can be treated in no other way. If the Richardson et al v. Baxter et al.- Suit for infringeself-destruction was not intended, the replication ment. Plaintiffs, owners of two patents for improvewould have said so. Instead of this, it confessed that ments in childrens' carriages. One originally issued to fact and avoided its supposed effect by setting up a Bein & Ulrich, February 11, 1868, and one to Henry M. state of insanity. The phrase, “wholly unconscious Richardson, October 11, 1873. Decree for plaintiff for of the act,” refers to the real nature aud character of

an injunction and account. Opinion by Lowell, J. the act as a crime, and not to the mere act itself. Holbrook, Tr. et al v. Small; Holbrook, Tr. et al v. Bigelow knew that he was taking his own life, and Matthews.- Suit for infringement of two patents reshowed sufficient intelligence to employ a loaded pis-lating to machines for sowing seed, one of April 13, tol to accoinplish his purpose, but he was uuconscious 1869, and the other of June 8, 1869. Decree for comof the great crime he was committing. His darkened plainants for an injunction and account. Opinion by mind did not enable him to see or appreciate the moral Lowell, J. consequences of his act, but still left him capacity enough to understand its physical nature.

RECENT BANKRUPTCY DECISIONS. Enough has been said to show, in the view we take

ARREST. of the case, that the court did not err in holding that the replication was bad.

Under State law: effect of discharge in bankruptcy, as The judgment is affirmed.

to. — In an action on a bond given in the arrest of a

debtor, and conditioned that he will apply for the benRECENT PATENT DECISIONS.

efit of the State insolvent laws, a plea of a subsequent

discharge of the debtor in bankruptcy is a valid plea, CIRCUIT COURT OF THE UNITED STATES-DISTRICT unless the debt is one from which a discharge will not OF MASSACHUSETTS.

release him. If the debtor applies for the benefit of Sanford v. Merrimac Hat Co.-- Suit for infringe- the State insolvent law, and the court, whether rightment. The assignee of the complainant professed to fully or wrongfully, dismissed the case for want of have invented a new and useful improvement in sew- jurisdiction, this is a conclusive answer to an action ing machines. The specification stated that the in- on a bond conditioned to apply for the benefit of the vention is designed for the purpose of stitching the State insolvent laws. Hubert v. Horter, 14 Nat. Bank sweats, or leather lining, into hats. The court held

Reg. 430. that the invention is the arrangement of old elements

ASSIGNEE. in a new combination to work out a new and useful A8 witness: when protected from annoyance. — An result, and say that where the invention consists en- assignee may be subpænaed and required to testify in tirely in a new combination of old elements or ingre- the same manner as any other witness, and the regisdients, the law is well settled that a suit for infringe- ter has authority to make the requisite order. An ment cannot be maintained unless it appears that the assignee is not subject, as of course, to an examination respondent has used all of the elements or ingredients by any creditor whenever the latter may desire it; but of the new combination. Prouty v. Ruggles, 14 Pet. will be protected against unnecessary annoyance by 341; Vonce v. Campbell, 1 Black, 428; Gould v. Rees, refusing an application for his examination, unless 15 Wall. 193; Seymour v. Osborne, 11 id. 555. Com- upon some issues regularly referred to the register. In plaint dismissed. Opiniou by Clifford, J.

re Smith, 14 Nat. Bank Reg 432.

ATTACHMENT.

applicant for a discharge has failed, in any particular, to 1. Discharge of: obligation of receiptor.- Where the perform his duty as a bankrupt, the application obligation of a receiptor is merely to produce the must be refused. (4) It is not the necessity of the act property attached to satisfy any execution that may which makes it a fraud upon the law, but the statute be issued, or any judgment that may be recovered, he itself. (5) Perfect equality among creditors is the is discharged by the commencement of proceedings in fundamental principle upon which the bankrupt law bankruptcy within four months after the issuing of proceeds; any thing which defeats that is a fraud upon the attachment. Kaiser v. Richardson, 14 Nat. Bank the law. (6) The obligation incurred to one creditor, Reg. 391.

as the price of his assent (to a discharge), is as much 2. Release of bond given to dissolve. — If the bank- a fraud upon those who had before signed the certifirupt, after the commencement of the proceedings in cate of assent as upon those who had not. (7) The act bankruptcy, gives a bond to dissolve an attachment of preference placed the bankrupt outside the statute, issued more than four months before that time, and and made it the duty of the court to withhold the dissubsequently pleads a discharge, no special judgment charge. (8) The court is not to inquire whether the can be entered to be enforced by action upon the bond. act complained of has been productive of harm, but Hamilton v. Eryant, 14 Nat. Bank Reg. 479.

whether it has been done. If done, one of the condi

tions precedent to the discharge has not been perCOMPOSITION.

formed, and the case is uot brought within the statate. 1. Before adjudication : refusal to ratify. – Where a

Palmer v. Rogers, 14 Nat. Bank Reg. 437. composition made before adjudication, the mere fact that the debtor retains the possession of his assets, is no ground for refusing to ratify it. The omission of

RECENT AMERICAN DECISIONS. the court in a voluntary case to adjudicate the debtor

SUPREME COURT OF WISCONSIN.* a bankrupt, does not defeat a composition made before such adjudication. A provision that the debtor may

NEGOTIABLE INSTRUMENT. retaiu his assets does not defeat a composition, for it

Failure of consideration.- In an action on a promis a surplusage, and, on the application of a creditor, a issory note, by the payee, the fact that the note was warrant may be issued, notwithstanding the terms of

signed and delivered to plaintiff's agent with an agreethe provision. Creditors who are fully secured need

ment that the latter should hold it until a certain not be reckoned in computing the proportion who

time, to be returned to the maker if he should not demust join the composition. In re l'an Auken and cide to effect a certain purchase from the plaintiff, and Crane, 14 Nat. Bank Reg. 425.

that in the meantime the note should not be consid2. Discharge of debtor: jurisdiction of District

ered as delivered to the plaintiff, with the further fact Court. — If a resolution of composition has been duly

that the maker, at the specified time, notified the agent ratified, it confines the secured creditor to his security,

that he had decided not to effect such purchase, and and discharges the debtor from personal liability for

demanded a return of the note. Held, to constitute a the secured debt. If a composition is entered into for

good defense. Hillsdale College v. Thomas, executrix. cash payments secured by a mortgage on real estate,

RAILWAY. the District Court has no jurisdiction to restrain a 1. Illegal charges : payment of charges on connecting creditor from levying an execution on personal prop

roads.-- While chapter 273 of 1874 was in force, deerty, although the name of such creditor was properly fendant, a railway company of this State, received placed on the list of creditors. In re Lytle & Co., 14 | plaintiffs' goods from another company of this State, Nat. Bank Reg. 457.

paying as back charges thereon a greater sum than DISCHARGE.

such other company could lawfully charge, and, on Acts of debtor preventing: fraud: courts bound by delivery of the goods to plaintiffs, collected from them statute: violation of statute conclusive to prevent dis

the amount of such back charges, together with illegal charge. – P., a bankrupt, whose assets are not sufficient

charges for carriage upon its own road. Held, that plainto entitle him to his discharge, obtains the necessary

tiffs can recover from defendant only three times the consent thereto of more than one-fourth in number

excess in its charges for carriage on its own road, and and one-third in value of his creditors, who proved

not for the excess in the charges of the other comtheir claims and to whom he is bound as principal

pany. Ackerly v. C., M. & St. P. Railway Co., 36 Wis. debtor. Desiring to obtain also the consent of M.,

252, distinguished. The fact that shippers or conanother creditor, “to strengthen his application for siguees of goods, under the act of 1874, paid unlawful discharge," gives him vote for forty dollars, with railway charges thereon with full knowledge of the security, and in consideration thereof, M. signs the

facts, and without protest, will not prevent a recovery.

Streeter v. C., M. & St. P. Railway Co. paper consenting to P.'s discharge. R. & ĉo., another creditor, oppose the discharge because of the above

2. Statute regulating speed of trains to be enforced stricttransaction with M. Hold, (1) that this transaction was

ly.- The statute regulating the speed of railway trains & violation of section 29 of the bankrupt act, and the

in cities was passed in favorem vitæ, and its strict obdischarge must be refused. (2) The right of a bank

servance will be enforced by the courts. Haas, adm'r, rupt to his discharge depends entirely upon the stat

v. C. &. N. W. Railway Co. ute, and he can only demand it when he has complied

3. Judgment for land taken for construction of, not with all of the prescribed conditions. If he has not

subject to mortgage upon.-- While a judgment against complied with them all, his position is that of one who

a railway company for the taking of land on which its is unable to bring himself within the provisions of an

road was constructed remained unpaid, a mortgage of act granting discharge from debts upon certain condi

the road with all the property and franchises of the tions. (3) The courts are as much bound by the provis- company was foreclosed, and the purchasers organized ions of the act as the bankrupt himself, and if it ap- * From abstracts furnished by 0. N. Conover, Esq., State pear, in the regular course of proceedings, that an Reporter.

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