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TRUST AND TRUSTEE. Land was conveyed in trust to raise certain sums, and thereafter to pay the income to the grantor, or to M., a married woman, and to dispose of the estate as the grantor should during life or by will appoint; and if the grantor should die intestate, then to hold the estate for the said M. and her children then living, free from control of her husband. On the death of the grantor intestate and without appointment, M. and four children surviving, held, that the trust as to four-fifths of the property was determined, and the legal estate therein vested in the children. — Milledge v. Bryan, 49 Ga. 397.
See ACKNOWLEDGMENT; AGENT; CORPORATION, 2; FRAUD, 1; GIFT ; TENANT FOR LIFE.
Action for refusing to receive, according to a written contract, “Sixty-five head of fat hogs, to weigh 225 lbs. or over.” Held, that plaintiff was bound to tender sixty-five hogs, each of the stipulated weight, and that parol evidence was inadmissible to prove that by custom such language was understood to mean that the hogs should average that weight. (BECK, C. J., dissenting.) – Cash v. Hinkle, 36 Iowa, 623.
A bank was authorized by its charter to lend money at such terms and rates as might be agreed on. Held, that this did not authorize the charging of a rate of interest higher than that allowed by the general law. Simonton v. Lanier, 71 N. C. 498.
VENDOR AND PURCHASER. - See NOTICE.
VERDICT. - See JURY.
VOTER. — See CONSTITUTIONAL LAW, 3.
WAR. — See CARRIER, 1; CORPORATION, 4; INSURANCE (FIRE).
WARRANTY. See DAMAGES, 3; SALE; Tax, 1.
A city emptied sewers into a stream, making the water unfit for the manufacturing purposes
for which it had before been used by a riparian owner. In an action by him against the city, held, that he could not recover for the pollution, so far as it was attributable to the system of sewerage adopted by the city; but that he could recover for it, so far as it was attributable to improper construction or negligent use of the sewers.-
:-- Merrifield v. Worcester, 110 Mass. 216. See JURISDICTION, 2 ; NUISANCE.
WAY. 1. Plaintiff's horse, while driven on a highway with due care, became frightened without plaintiff's fault, and ran off the highway and across private property on to a turnpike, where he was injured by falling over a defective bridge, which the owners of the turnpike were bound to repair. Held, that they were liable for the injury. - Baldwin v. Greenwoods Turnpike Co., 40 Conn. 238.
2. A city in improving a street dug up gravel from part of the street, in front of private property. Held, that the city might carry away the gravel and use it in improving other parts of the street. — Bissell v. Collins, 28 Mich. 277.
3. Plaintiff was passing, using due care, along a street which defendants were bound to keep in repair. In attempting to avoid the kick of a mule, she jumped into an excavation, which was a defect in the street, and was injured. Held, that defendants were liable. — Bassett v. St. Joseph, 53 Mo. 290.
See DAMAGES, 5; JUDGMENT, 3.
Will. 1. A testator disposed of his personalty by nuncupative will, and died seised of real estate undevised, sufficient to pay his debts. Held, that the real estate was to be applied to pay the debts, in exoneration of the personalty. - McCullom v. Chichester, 63 Ill. 477.
2. The republication of a will revoked by the subsequent birth of a child cannot be shown by parol. – Carey v. Baughn, 36 Iowa, 540.
3. The fact that a testator meant to divide his property equally among bis children, but that, by a mistake on his part as to the value of the property, his will failed to have that effect, the mistake being caused not by insanity or incapacity, but by his voluntary omission to ascertain the value correctly, held, no ground for setting aside the will. — Barker v. Comins, 110 Mass. 477.
See CHARITY; DEVISE ; ESTATE Tail.
Disorderly Tenement.”. See INDICTMENT, 2.
“ Final Hearing or Trial.” — See REMOVAL OF Suits, 4. 66 Invasion or act of military or usurped Power." See INSURANCE (FIRE).
“ Leaving no Issue or Child.” — See Estate Tail.
Public Taxes." - See Tax, 3.
Shipper." — See CARRIER, 3.
DIGEST OF CASES IN BANKRUPTCY.
As pleas in abatement do not deny, and yet tend to delay, the trial of an action, great accuracy and precision were always required in framing them ; so, if the plea or answer relies upon the transfer of the interest of the plaintiff to abate the action, it must state to whom the transfer has been made. - Sutherland v. Davis, 10 N. B. R. 424.
ACCOMMODATION NOTE. See Proof, 9.
1. In an action at law upon a contract of subscription, for a balance thereof, the stockholder cannot be held liable, unless a call or assessment, or something standing in the place thereof, and equivalent thereto, is made by the company or by a proper court.
Siddle, 10 N. B. R. 236. 2. A creditor of a corporation in bankruptcy may prove his claim, and at the same time maintain an action thereon, and obtain judgment against it, and, if unsatisfied, pursue his remedy against the stockholders. — Allen v. Ward, 10 N. B. R. 285.
3. The intervenor, having become the purchaser of the claim sued on, can prosecute the suit in his own name, or there might be judgment in favor of the plaintiffs for his own use. On proof of his equitable interest in the account, he had a right to maintain the suit in a court of equitable jurisdiction.
Morris v. Swartz, 10 N. B. R. 305. 4. The proper action to enforce the liability of stockholders for the
corporation's debts, is one in which an account of the debts and stock of the company, and a pro ratâ distribution of the indebtedness among the several stockholders, can be had, and therefore it falls within the powers of an equity court. — Pollard v. Bailey, 11 N. B. R. 276.
See INJUNCTION, 3; JURISDICTION, 4; PROOF, 8. ACT OF BANKRUPTCY. See DEPOSITION; FRAUDULENT PREFERENCE, 5.
ADJUDICATION. A decree of adjudication having been rendered prior to the approval of the amendatory act, it will stand as the decree of the court, and precludes the necessity of obtaining an order for other creditors to join in the petition. - In re Pickering, 10 N. B. R. 208.
See APPEAL, 1;. BANKRUPTCY, 4; JURISDICTION, 20; PARTNERSHIP, 2, WAIVER.
AFFIDAVIT. Supplementary affidavits may be received in support of an order to show cause, when they tend to prove the authority of an agent at the time he signed and verified a petition for adjudication nunc pro tunc, in a case free from other difficulties. — In re Rosenfields, 11 N. B. R. 86.
AGENT. 1. The fact that a creditor is out of the state, but not out of the United States, or that the agent is better acquainted with the facts than his principal, will not authorize proof by an agent. - In re Whyte, 9 N. B. R. 267.
2. It is essential to the issuing of an order to show cause that there should be proof of the authority of the agent to do the particular act of signing and verifying the petition, and the oath of the agent is allowed in such cases. In re Rosen fields, 11 N.B. R. 86.
See PETITION, 5, 25; VERIFICATION, 1.
AGREEMENT. After bankruptcy proceedings, a creditor's bill was brought in the state court by one judgment creditor against the bankrupt, his assignee, and other judgment creditors. A written agreement was entered into by the judgment creditors and the bankrupt and his wife, but not by the assignee, by which a division of the wife's property, a tract of land, and the bankrupt's land should be made, and distributed in a certain way. Such agreement could not bind the bankrupt's estate, because not signed by the bankrupt, and because the signature of the bankrupt, who was civiliter mortuus, was a nullity, so far as the estate was concerned; and the fact that he signed after his discharge could have no greater effect. In re Anderson, 9 N. B. R. 360.
AMENDATORY ACT. The amendment of June 22, 1874, is retrospective in its operation, so as to bring within it all cases commenced since Dec. 1, 1873, and in which, at the time of its passage, no adjudication has been made; but it did not intend to overturn or disturb adjudications and decrees then already made, and in force. Burch, 10 N. B. R. 150.
This applies also to involuntary petitions. — Barnet v. Hightower, 10 id. 157. See DISCHARGE, 8, 12; PROPOSITIONS.
AMENDMENT. 1. Where a creditor having security, in ignorance of his rights, proves his debt without reference thereto, he will be permitted, in the absence of fraud or design, to amend his proof. — In re McConnell, 9 N. B. R. 387.
2. An involuntary petition was filed June 25, 1874, containing no allegation that the petitioning creditor constituted the requisite number and value of the creditors; it being conceded that such creditor does not constitute such number, no amendment thereto could be made. - In re Burch, 10 N. B. R. 150.
3. Since the amendatory act was retrospective as to pending cases where no adjudication had been bad on June 22, an involuntary petition filed on that
day by one creditor, upon which adjudication by consent of the bankrupts was ha 1 June 29, an assignee elected, and an entrance by him upon the discharge of his duties, may be amended; and such amendment will relate back to commencement of proceedings in bankruptcy, and give effect to any action of the Bankrupt Court thereunder. — In re Williams, 11 N. B. R. 145.
4. Where the only act of bankruptcy alleged in a petition filed prior to the amendatory act was that the debtor had suffered his property to be taken on legal process, an amendment, by averring that he procured his property to be taken, will be allowed, the first being no longer an act of bankruptcy. — In re Scull, 10 N. B. R. 165.
5. In a suit brought by an assignee to set aside a sale as fraudulent, under proceedings in bankruptcy begun long prior to Dec. 1, 1873, the jury found for the plaintiff. The charge to the jury was based upon the provisions of the original act, and no allusion then or during the course of the trial was made to the amended act. Upon a motion for a new trial, because the jury should have been instructed that they must find that the defendant knew that the sale was made in fraud, &c., the court held, overruling the motion for a new trial, that the fair intendment of the law is that in cases where no other time is mentioned, the amendment should only apply to cases arising after its passage.
Hamlin v. Pettibone, 10 N. B. R. 172.
6. Where the jury would be warranted in finding that the party had “ good reason to believe" under the old statute, they would be justified in finding that he“ knew” under the amended law, so that practically the amendment is merely a verbal one in that respect. — Ibid.
7. The Bankrupt Law contemplates all amendments to the last stage up to the discharge in bankruptcy, which will accomplish the object and purpose of the law. - In re Pierson, 10 N. B. R. 193.
8. The court having jurisdiction of a petition, notwithstanding the insufficiency of the verification, has power to allow an amendment of it. — In re Simmons, 10 N. B. R. 253.
9. An amendment to make an assignee a party to a suit, made more than two years after the rigbt of action accrued to him, does not have the effect to relate back, and make bim the plaintiff ab initio, and thereby defeat the Statute of Limitations in the act. — Cogdell v. Exum, 10 N. B. R. 326.
10. The amendment to section 35 by the Act of June 22, 1874, by substituting “knowing” for the understood expression, “ reasonable cause to know," was not intended to be retroactive. — Brooks v. McCraken, 10 N. B. R. 461.
11. Whether the amendment has changed the legal effect of the amendment
quære. — Ibid.
12. To allow amendments, the court must have jurisdiction ; and there is none, without a clear, explicit, and consistent allegation as to the proportionate number of creditors petitioning and amount of debts represented by them. – In re Rosenfields, 11 N. B. R. 86.
See DIVIDEND, 3; JUDGMENT, 3.
APPEAL. 1. The bankruptcy of the appellant, though adjudicated before the taking of the appeal, will not prevent its prosecution in his name; nor will the respon