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ARBITRATION. AN AGREEMENT TO REFER TO ARBITRATORS, by which important rights are gained and lost reciprocally, and which is not merely a naked power to refer, is not revocable after the referees have gone far into the

Paist v. Caldwell, Pittsb. L. J., March 4, 1874.



ATTACHMENT SUITS. 1. PUBLICATION. — The statute (Revised Statutes, 1855, page 246, section 23; Session Laws 1859-60, page 4) authorizes the clerk, in vacation, after the return term, to make an order for publication in suits by attachment where the court should have made such order in term time, but has omitted to do so. Kane v. McCown, Cent. L. J., March 5, 1874.

2. FAILURE TO DESIGNATE PAPER. The newspaper selected by the court, judge, or clerk making an order of publication, in which to publish the same, need not be designated in the order, and a failure to designate such paper will not render the judgment void. 16.

3. VALIDITY OF JUDGMENT. — In attachment suits against non-residents the court acquires jurisdiction by the seizure of the property under a valid writ. There is then a case in court, and if every point arising subsequently is erroneously decided, the judgment is nevertheless valid, and can only be questioned in a direct proceeding (Freeman v. Thomp8on, July term, 1873, reviewed and affirmed). 16.

ATTORNEYS. 1. FEES. — A stipulation in a promissory note that the maker will pay ten per centum on the amount thereof in case it shall be necessary to collect the note by suit, will not be regarded as a penalty, but as liquidated damages, COLÉ, J., dissenting. McIntyre v. Cagley, West. Jur., March, 1874.

2. DAMAGES : STIPULATED; PENALTY. - In cases of this nature the action of the court will not be defined or determined by the terms which the parties have seen fit to apply to the sum agreed upon. Although they have called it a “penaltyor liquidated damages,” it will be held to the one or the other, as from the nature of the contract and the surrounding circumstances, it appears that the parties intended, and in reason and justice they ought to be held. 16.

AUDITORS. ACCOUNT. — When an auditor states an account, with the facts on which the disputed items depend, exceptions to his report should be either for error in finding or in omitting to find specified facts, and this is an appeal to the testimony; or for erroneous inference or conclusion, and this assumes facts as truly found and states what they are. Estate of Dickson, Pittsb. L. J., March 4, 1874.

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BAILMENTS. SPECIAL DEPOSITS. — The plaintiffs below, who kept an account with the defendant, made a special deposit of certain bonds for safe keeping, paying nothing for the privilege; the bonds were stolen by the teller, who had always borne a good character.

Held: 1. That the bank was a gratuitous bailee, and as such not liable, except for gross negligence.

2. That neither the fact, that the bank might have discovered that the teller was dishonest, by a more frequent or accurate examination of his accounts, nor that he was allowed to keep the “individual ledger,” which was the only book which was a check upon him, nor that he was not dismissed, when it was discovered that he had made a successful speculation in stocks, was such negligence as to render the bank liable.

3. That nothing short of knowledge or reasonable grounds of suspicion by the bank, that the teller was unfit to be appointed or retained, would render it liable. Foster v. Essex Bank, 17 Mass. 478, approved and followed; Lancaster Bank v. Smith, 12 P. F.S. (62 Penna. Stat.) 47 remarked on ; Scott v. National Bank, Pittsb. L. J., March 11, 1874.

BANKRUPTCY. 1. CAPITAL STOCK OR SHARES - especially the unpaid subscription constitute a trust fund for the benefit of the general creditors of a corporation. Sawyer v. Hoag, West. Jur., March, 1874.

2. This trust cannot be defeated by a simulated payment of the stock subscription, nor by any device short of an actual payment in good faith. Ib.

3. An arrangement by which the stock is nominally paid, and the money immediately taken back as a loan to the stockholder, is a device to change the debt from a stock debt to a loan, and is not a valid payment as against creditors of the corporation, though it may be good as between the

company and the stockholder. Ib. 4. SET-OFF. Section 20 of the bankrupt act was not intended to enlarge the doctrine of set-off beyond what the principles of legal or equitable set-off previously authorized. Ib.

5. A stockholder indebted to an insolvent corporation for unpaid shares cannot set off against this trust fund for creditors a debt due him by the corporation. The fund arising from such unpaid shares must be equally divided among all the creditors. Ib.

6. THE RELATIONS OF A STOCKHOLDER TO THE CORPORATION, and to the public who deal with the latter, are such as to require good faith and fair dealing in every transaction between him and the corporation, of which he is part owner and controller, which may injuriously affect the rights of creditors of the general public, and a rigid scrutiny will be made into all such transactions in the interest of creditors. Ib.

7. BANKRUPT ACT. - ILLEGAL PREFERENCE. - JUDGMENT IN STATE COURT. — Section 39 of the bankrupt act, as respects an insolvent debtor suffering his property to be taken on legal process, with intent to give a preference to a creditor, or to defeat or delay the operation of the act, construed, and the following propositions ruled : 1. That something more

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than passive non-resistance of an insolvent debtor to regular judicial proceedings, in which a judgment and levy on his property are obtained, when the debt is due and he is without just defence to the action, is necessary to show a preference of a creditor, or a purpose to defeat or delay the operation of the bankrupt act. 2. That the fact that the debtor under such circumstances does not file a petition in bankruptcy is not a sufficient evidence of such preference, or of intent to defeat the operations of the act. 3. That, though the judgment creditor in such cases may know the insolvent condition of the debtor, his levy and seizure are not void under the circumstances, nor any violation of the bankrupt law. 4. That a lien thus obtained by him will not be displaced by subsequent proceedings in bankruptcy against the debtor, though within four months of the filing of the petition. Wilson v. City Bank, Am. Law Rec., March, 1874.

BILLS AND NOTES. 1. WHEN a note is taken after its maturity, it is taken subject to the equities existing between the original parties arising out of or connected with the note itself — such as its accommodation character ; but not to a set-off. Long v. Rhann, Pittsb. L. J., March 11, 1874.

2. ACCOMMODATION NOTE. — It is no defence to an accommodation note that it came into plaintiff's hands after maturity, if it came to him from one who acquired it for value before maturity. Regel v. Cunningham, Leg. Int., March 6, 1874.

3. EVIDENCE tending merely to show that a party in acquiring a bill of exchange or promissory note suspected the title of the holder at the time of delivery, would hardly constitute an approach towards proof that he had knowledge that such holder was guilty of a breach of trust in passing it. In this case Calvin Adams, who was a member of the firm o Whitten & Co., and Moorhead, Adams & Co., made the note to the order of Whitten & Co., who indorsed it. Adams then indorsed the name of Moorhead, Adams & Co. There was no evidence that Gilmore, who took the note, had any knowledge of any improper use of the name of Moorhead, Adams & Co., except such as he might derive from the fact that the signature was in the handwriting of the maker of the note.

Held, not to be sufficient to put him upon notice or defeat his right to recover. Gilmore v. Moorhead, Pittsb. L. J., March 4, 1874.



CONTRACTS. 1. JURISDICTION. — LIEN. A contract to build a vessel is a contract to be performed on land, and falling within the ordinary common law, and belongs to state jurisdiction, and a state has a right to give a lien against her for work and materials entering into her construction. The Maggie Cain, Pittsb. L. J., March 11, 1874.

2. BIDS FOR. — The head of a department of the municipal govern. ment cannot refuse to award a contract to the lowest bidder because of irregularity in not conforming to the notice for bids. If there has been a

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substantial conformance to the laws and ordinances relating to such matters, the court will not use the writ of mandamus, which is a discretionary writ, to compel the acceptance of the next bidder. People v. Green, Daily Reg., March 7, 1874.






DOMICIL. 1. WILL. — The decedent, Dr. Gibson, executed a will in Rhode Island, in 1865, being at the time domiciled in that State. In 1867, being in Philadelphia, he published another will, which, after his death, was admitted to probate in Philadelphia. Upon an appeal from the register granting probate of said will, upon the ground that, at the time of the execution of the will in Philadelphia, Dr. Gibson's domicil was in Rhode Island, and that the will, not being executed according to the laws of that State, was void ; and further, that the register in Philadelphia had no jurisdiction of the matter; the register's court sustained the Philadelphia will, holding that the testimony showed that his domicil at the time was Philadelphia. Upon appeal, this decision was reversed, the supreme court holding, that from the testimony it appeared that his domicil was in Rhode Island, and not in Philadelphia, at the time of execution of the Philadelphia will. Carey's Appeal, Leg. Gazette, March 6, 1874.

2. Residence, and the intention of making the place a home of the party, constitute a domicil. The residence of the testator in Philadelphia, not being of the character required, his domicil was not in that city. Ib.


Where in an action of ejectment against a party whose title has been vested in the plaintiff by an execution sale, such party dies during the pendency of the action, and his widow, who is entitled to dower and quarantine, is made a party defendant, the suit may proceed to judgment for plaintiff, and the rights of the widow will be secured by ordering a stay of execution until dower is assigned. Kane v. McCown, Cent. L. J., March 5, 1874.


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EXECUTION SALES. 1. COURT-HOUSE. Where the regular court-house cannot be used, and another building at the county seat is procured, in which the circuit court holds its session, execution sales made at such building are valid, and would be invalid if made at the deserted court-house. McCown, Cent. L. J., March 5, 1874.

2. BY SHERIFF AFTER EXPIRATION OF TERM OF OFFICE. Where a sheriff who has made a levy of an execution goes out of office, by reason of the expiration of his term, he has the power to retain the execution and proceed to advertise, sell, and make a deed to the property levied upon, or he may turn the same over to his successor ; and a sale made by either officer is valid. lb.

3. IF COURT NOT HELD AT RETURN TERM. Where a sale is not made at the return term of an execution which has been duly levied, by reason of no term of court being held, the execution does not become functus officio, and the sale may be made at any subsequent term of court without any writ of venditioni exponas. 16.

EXECUTORS AND ADMINISTRATORS. 1. CONFEDERATE BONDS. An investment by an executor in Confederate bonds, made during the war, by authority of a probate court in Alabama, was illegal, and he can be compelled to account to the legatees for the money so invested. Horn v. Lockhart, Leg. Gazette, March 6, 1874.

2. FOREIGN EXECUTORS. Since the act of April 8, 1871, a foreign executor can transfer stock, and the company is not obliged to see that the will gives the executor the power to assign or dispose of the stocks ; it is to be presumed that it does. Williams v. The Pennsylvania R. R. Co., Leg. Int., March 6, 1874.

3. ACCOUNTS. — Administrators being jointly liable for the estate committed to them, and their account being

their settlement with those interested in the estate, disputes between themselves about their respective services and compensation, or about their several receipts and expenditures, are no proper part of such an account, and cannot be allowed to embarrass the settlement thereof. Estate of Dickson, Pittsb. L. J., March 4, 1874.

4. When administrators pay a claim according to a settlement made by the intestate, and the auditor finds that he was mentally incompetent to make the settlement, and disallows the payment, his decision will be reversed where the evidence shows only feebleness of mind and body and no symptom of insanity, and there is no evidence of fraud or undue influence. 16.

5. But in cases of serious importance the court will seek to avoid injustice by correcting errors, even when they are defectively assigned. 15.

6. The exception in such a case ought to be to the auditor's finding of fact, and not to the inference from it, that the payment is disallowed. 16.

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