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RES ADJUDICATA. A creditor set up certain specifications in opposing the bankrupt's discharge. The court held the same not proved. Afterwards the assignee brought suit in a state court, relying substantially upon the same specification. Held, that the bankrupley court would not enjoin the assignee from proceeding on the ground that the matter was res adjudicata, but would let the whole matter go on in the state court.— In re Penn et al. (S. D. N. Y.), 8 N. B. R. 93.
REVIEW. — See PRACTICE, 7.
SALE BY ASSIGNEE. The law intends that the assignee shall sell the property himself, and if he employs an auctioneer, he must either get leave from the court beforehand, or, if not, he must show plainly the necessity of such employment before he can have an allowance therefor. – In re Sweet et al. (E. D. Mich.), 9 N. B. R. 48.
SALE BY SHERIFF. A sheriff who, after proceedings are commenced in bankruptcy wherein an assignee is appointed, levies execution upon and sells property which was of the bankrupt, is liable to the assignee, notwithstanding be pays the proceeds of the sale to the creditors before he has actual notice of the bankruptcy. – Miller v. O'Brien (U. S. C.C. S. D. N. Y.), 9 N. B. R. 26. So, In re Grinnell & Co. (S. D. N. Y.), 9 N. B. R. 29.
SALE OF PLEDGE. — See PRACTICE, 2.
SECURITY Bankrupt and his wife conveyed the real property of the latter in trust to secure a claim of his creditors. Wife died, leaving heirs. Held, that the claim should be proved and allowed as a secured claim, and the court would afterwards, on proper motion, see to the application of the security and surplus. – In re Hartel (W. D. Mo.), 7 N. B. R. 559.
See FRAUDULENT PREFERENCE, 3; LIFE INSURANCE, 1 ; PROOF OF CLAIM, 2, 7, 13.
SET-OFF. 1. A bankrupt refused to be sworn, on the ground that the claim of the creditor, which had been duly proved and was unimpeached, should be set off against an alleged claim of the bankrupt against said creditor. Held, no ground for refusing to be sworn and examined. — In re Kingsley (S. D. N. Y.), 7 N. B. R. 558.
2. An insurance company was organized under a state statute, and allowed to do business on ten per cent of the stock being paid in in cash and the balance in secured notes of the stockholders. A stockholder, who had a claim for loss against the company, was not allowed to set it off against his liability on the note so given by him for stock, in bankruptcy proceedings against the company. Scammon v. Kimball (U. S. C. C. N. D. III.), 8 N. B. R. 337.
SPECIAL DEPOSIT. M. sent H. cash to pay a note as soon as the note was sent him. H. gave M. credit for the money with his own in his books. The note was sent to H., and while waiting for instructions as to remitting the money in payment thereof, he became bankrupt. On petition of M. in the bankruptcy court to have the money paid him, as being a special deposit, held, that the money having been mingled with that of the bankrupt in his own business, M. had no other resort but to come in as a general creditor. — In re Hosie (E. D. Mich.), 7 N. B. R. 601.
STATE Courts. An assignee may bring a suit in equity in a state court if the equity on which the suit is based is recognized by the law of the state as well as by a United States statute. Hence a bill in equity to set aside a conveyance void as against the Bankrupt Act, brought by the assignee in a state court, will not be entertained, nor will a suit against an assignee by a person claiming adversely; and a state court cannot take jurisdiction to enforce a statute penalty of a foreign state or of the United States. — Voorhees v. Frisbie (S. C. Mich.), 8 N. B. R. 152.
See DISCHARGE, 8; JURISDICTION, 1, 6, 7, 10, 11, 17, 19–21; PRACTICE, 11; RES ADJUDICATA.
STATE LAW. By a Missouri statute a sale of personal property without delivery is void. Held, that the Supreme Court of the United States will follow the highest state court in construing this statute, and that the assignee ought to recover the property conveyed in violation thereof. — Massey et al. v. Allen (U. S. S. C.), 7 N. B. R. 401.
See FRAUDULENT CONVEYANCE, 3; JURISDICTION, 14; Proof OF CLAIM, 9. SUBSTITUTION OF ASSIGNEE IN PETITION IN BANKRUPTCY. — See ASSIGNEE, 3.
SUMMARY PROCEEDINGS. — See APPEAL, 2 ; PRACTICE, 7.
SURPLUS. — See INTEREST.
SURVIVAL OF Action. The debtor died after the service of the rule to show cause and before adjudication. Held, that the proceedings must abate. — Frazier & Fry v. McDonald (W. D. Penn.), 8 N. B. R. 237.
TENANT. — See RENT.
Ultra Vires. A president of a corporation exceeded his power in executing a deed of trust of corporation property as security for a loan more than four months prior to bankruptcy proceedings. Within the four months the corporation ratified the action of the president. Held, that the deed dated from the ratification and not from the original execution. — In re Kansas City Stone and Marble Manufacturing Co. (V. D. Mo.), 9 N. B. R. 76.
See PROOF OF CLAIM, 1.
UNIFORMITY OF BANKRUPT LAW. — See ConstrTUTIONAL LAW, 2.
VERIFICATION OF ANSWER. — See PRACTICE, 13.
VOTE OF CREDITORS. — See AssignEE, 1.
WAIVER. 1. A company may waive its provision that a transfer of stock, to be valid, must be made on the books of the company, and if such waiver be made at the suggestion or with the acquiescence of the transferee, the latter will be liable as a legal stockholder. — Upton v. Burnham (N. D. Ill.), 8 N. B. R. 221.
2. A petition of bankruptcy by a bank was signed by the cashier without any verification of authority, and the debtor moved to vacate the order to show cause on that ground, but, pending the motion, put in a denial of the act of bankruptcy charged and demanded a jury trial. Held, that the motion to vacate was on valid ground, but was waived by the denial and demand for a jury trial. – In re McNaughton, 8 N. B. R. 44. See PETITION IN BANKRUPTCY, 1; PRACTICE, 8, 9; Proof OF CLAIM, 10.
WAREHOUSE STORAGE.— See CONTINUING CONTRACT.
Writ of Error. A writ of error and supersedeas do not prevent the judgment being a debt provable in bankruptcy. – In re Shehan (E. D. Mich.), 8 N. B. R. 345.
See JURISDICTION, 16.
A Selection of Legal Maxims, classified and illustrated. By HERBERT BROOM,
LL.D., of the Inner Temple, Barrister-at-law, Reader in Common Law to the Inns of Court. Seventh American, from the fifth London edition, with references to American Cases. Philadelphia: T. & J. W. Johnson & Co. 1874. The value of a book of this kind has been well understood since the time of Lord Bacon, who was the first English lawyer to publish a collection of maxims, with a preface setting forth its advantages; and nothing, he says elsewhere, contributes more to the certainty of the law than a good and careful treatise on the different rules of law. Such a treatise is this of Mr. Broom; and that the profession appreciate it is shown by the numerous editions through which it has passed, which have been distinguished by continual enlargement and improvement. It now contains nearly all the most familiar quotations of the law, clearly explained and abundantly illustrated. It is rather a singular fact that none of the maxims of the English law, so far as they appear in this book, are expressed in the English language. Certainly there are a few which might well have found a place in the collection, though wanting the grace of that peculiar dialect, “ known to the sages of the law, but not allowed by grammarians, nor having any countenance of Latin." On the whole, however, the collection is very complete.
This is a good reprint of the last London edition. We do not observe, as we were led by the title-page to expect, any American cases other than those cited by the author. The editor has corrected some of the references to these, which were wrong in the original; but, beyond this, his labors seem to have been confined to adding to the citations of the English reports references to the volumes of the Philadelphia reprint known as the “ English Common Law Reports;" additions which certainly do not increase the beauty of the book, nor, we think, its value.
Index of the Special Railroad Laws of Massachusetts. By EDWARD L.
Pierce. Boston: Wright & Potter, State Printers, corner of Milk and Federal Streets. 1874.
The members of the Massachusetts Legislature who in 1833 chartered the “ North American Steam-Coach Company,” with“ corporate powers for using carriages propelled by steam on common or other roads," probably did not foresee that in less than forty years the “other roads" would become so numerous that a mere index to the legislation regulating their use would fill a volume of five hundred pages; and when on the same page in the author's book with the synopsis of this early act we see the act of 1867, which incorporated the “ Pneumatic Despatch Company of Massachusetts," with power to construct tubes for the conveyance of parcels, merchandise, and property, to which a later act adds the right to convey passengers, we are tempted to wonder whether, forty years hence, the railroad of to-day will seem as antiquated by the side of the pneumatic tube as the coaches of the North American Steam-Coach Company would look beside a palace car. So much, at least, of food for speculation we owe to Mr. Pierce; but it is not as a speculative work that his book is chiefly valuable.
The railroad legislation of Massachusetts had become so voluminous that in 1870 the members of the legislature, finding themselves constantly embarrassed by the difficulty of discovering exactly what the rights and powers of the various corporations were, passed a resolve directing the railroad commissioners “to make analyses, indexes, and tables of reference to the charters of the railroad corporations of the Commonwealth, and to all special laws relating to said corporations,” and empowered them to employ a competent assistant for the purpose. They selected Mr. Pierce; and the work before us proyes the wisdom of their choice. The task of examining the statutes of nearly half a century to select those covered by the resolve, digesting the provisions of each act, and arranging them all in their appropriate places, must have presented few attractions; but it has been done with rare patience, accuracy, and fidelity, and the result is a very valuable index, which will be of great service to all who have occasion to examine the railroad laws of Massachusetts, and may perhaps serve as a model for similar works in other states or on other subjects of legislation. The arrangement of the whole work, and the manner in which it has been done, leave nothing to be desired.
We regret, however, that the State of Massachusetts is not able to afford for so excellent a book a proper binding. We do not remember having encountered for some time any thing of the sort that was worse.
The American Corporation Cases : embracing the Decisions of the Supreme
Court of the United States, the Circuit Courts of the United States, and the Courts of last Resort in the several States, since January 1, 1868, of Questions peculiar to the Law of Corporations. Edited by THOMAS F. WITHROW, late Reporter of the Supreme Court of Iowa. Vol. II. Municipal Corporations. Chicago : E. B. Myers, Law Book Publisher. 1874. pp. 691.
A HANDSOMELY printed volume. Of its binding we say nothing. It has no preface. The cases seem to have been collected immediately from the several reports, and a convenient digest of them is found at the end of the book. They are arranged by states in alphabetical order, except that those decided in the courts of the United States come first; so that, with this exception, we begin with Alabama and end with Nevada and New York. They have been carefully prepared for the press; but we find one case where the proof-reader must have been overworked. It is in the report of Tujis r. Charlestown, on page 470, where it is said, in concluding the staternent of facts, “ The judge ruled that the proceedings of the defendants were irregular and defective, and found for the defendants alleged expenditures,'' — the last and most striking clause being in lieu of “ found for the plaintiff; and the defendants alleged exceptions," as given in the 98th Mass. 551.