convey under which A. had entered, &c.; that plaintiff had vouched defendant in, to prosecute A., which defendant did not do; that plaintiff successfully prosecuted the suit in his stead, ejecting A., and recovering a bill of costs which could not be collected. The damage claimed was the amount of this bill. Held, that the covenant only embraced valid claims, and that the action could not be maintained. Gleason v. Smith, 41 Vt. 293. See DAMAGES, 6; SLAVE, 1; SALE, 2. WATERCOURSE. See INJUNCTION, 1. WILL. 1. Parol evidence is admissible as to facts and declarations of a testator at any time between the making of the will and his death, to show that the will was revoked. · Patterson v. Hickey, 32 Ga. 156. 2. On the issue whether the execution of a will was procured by undue influence, the burden of proof is upon the party alleging the undue influence.-Baldwin v. Parker, 99 Mass. 79. See EXECUTORY DEVISE; JURISDICTION, 1; LUNACY, COMMITTEE OF; TRUST, 2, 4. WITNESS. 1. If the defendant in a criminal case does not avail himself of the statutory right to testify in his own behalf, no inference of guilt can properly be drawn on that account, and the prosecuting officer should not be permitted to comment on his failure to testify. - People v. Tyler, 36 Cal. 522. swers. 2. On trial of F. for larceny, an accomplice testified as witness for the prosecution, and fully answered the questions in chief, criminating himself by his anThe witness had been informed against jointly with F., but the latter was tried separately. On cross-examination, he admitted making an affidavit for continuance, in which he swore that he had been advised, and believed that he had a defence on the merits. Counsel for defence then asked what that defence was, and the witness refused to answer. Held, not privileged. Foster v. People, 18 Mich. 266. See CONSTITUTIONAL LAW, 5. 66 'Agreement," 66 "For the use of."— See POSSESSION. Insufficiency or want of repairs." — See HIGHWAY. "More or less." - See VENDOR AND PURCHASER OF REAL ESTATE. 66 66 Sixty dollars payable in gold.” — See LEGAL TENDER, 3. Stock," "Thoroughly tenantable.” — See LANDLORD AND TENANT, 2. "To be liable in the second instance.". See LIMITATIONS, STATUTE OF, 4. DIGEST OF CASES IN BANKRUPTCY. THIS Digest is a continuation of that published in the Third Volume of the American Law Review, p. 489, and contains all the cases under the Bankrupt Act published during the year 1869, embracing somewhat over three hundred points. As before, the Bankrupt Register is the main source from which the cases have been drawn, but we have collated with it the published volumes of reports and the different legal periodicals, and have given the place in each where any case occurs. We have also been able to add a few cases not in the Bankrupt Register. We have added to each case the names of the decisions cited in the opinion of the court, correcting the very numerous errors in the citations. The periodicals employed, and the abbreviations used to distinguish them, are as follows: We have also consulted the other law periodicals, but have found no bankruptcy cases in them. The cases will be found classified with reference to the different sections of the laws under the title "Bankrupt Acts." The General Orders issued by the Supreme Court are indicated by G. O. When not otherwise specified, "Court" means " District Court." ACCOUNT.-See BOOKS OF ACCOUNT. ACT OF BANKRUPTCY. 1. An assignment, by an insolvent debtor, of all his property for the benefit of creditors, is an act of bankruptcy; and semble, so is such an assignment by a solvent debtor. [Citing Kellogg v. Slawson, 15 Barb. 56; Perry v. Langley, 7 Am. Law Reg. (N. s.) 431.] — In re Randall (Oregon D.), 3 B. R. 4; s. c. 1 Ch. L. N. 209; 4 Pitts. L. J. (N. s.) 314; 2 L. T. B. 69. 2. An assignment for the benefit of creditors, under a State insolvent law, is not in itself an act of bankruptcy; but, if the debtor retains property not exempted by the State laws, it is. - Farrin v. Crawford (Ohio S. D. C. C.), 2 B. R. 181. 3. A debtor made a general assignment, under the State Insolvent Law, for the benefit of all his creditors, and in order to prevent one of his creditors obtaining a lien by a judgment. Held, that such assigninent was not necessarily made with intent to delay or defraud creditors, or with intent to defraud the Bankrupt Act; and unless it was made with one of these intents, it was not an act of bankruptcy. [Reversing In re Langley, Ex parte Perry, 1 B. R. 155.] — Langley v. Perry (Ohio S. D. C. C.), 2 B. R. 180; s. c. 8 Am. Law Reg. (N. s.) 427; 4 Pitts. L. J. (N. s.) 117 (Aug. 9, 1869); 2 Balt. Trans. 521, 875. 4. Semble, that an assignment for the benefit of creditors generally is not an act of bankruptcy. — In re Kintzing (Mo. E. D.), 3 B. R. 52. 5. If a party who is insolvent, but who honestly believes that he shall be able to go on in business, pays a debt without a design to give a preference, such payment is not an act of bankruptcy, though in fact a preference is given. [Citing Jones v. Howland, 8 Met. 377.] — Morgan v. Mastick (Ohio N. D.), 2 B. R. 163. 6. A debtor, knowing himself insolvent, actively endeavored to obtain, and did obtain, from a creditor an order to deliver goods to such creditor exceeding in amount his debt. Held, that this was a preference and an act of bankruptcy. — Farrin v. Crawford (Ohio S. D. C. C.), 2 B. R. 181. 7. The return to a creditor of goods bought from him for a third party, because such party refuses to receive them, is not an act of bankruptcy. — Doan v. Compton (Mo. E. D.), 2 B. R. 182; s. c. 2 Am. L. T. 106. 8. One who has been arrested on mesne process in an action founded on contract, but released on bail, cannot be adjudged a bankrupt, inasmuch as he has not been actually imprisoned for more than seven days. [Citing Powers v. Barney, 5 Blatch. C. C. 202.]— In re J. Davis (N. Y. S. D.), 3 B. R. 89. 9. See article on voluntary assignment as an act of bankruptcy. — 3 B. R. 78. See COMMERCIAL PAPER; CREDITOR'S PETITION, 5; DISCHARGE, IV. 6, 7; FRAUDULENT PREFERENCE, 2, 8; INJUNCTION, 5; MORTGAGE, 6; State InsolVENT LAWS, 3; SUFFERING PROPERTY TO BE TAKEN. See ASSIGNEE, I. 6; EXAMINATION, 3; FIRST MEETING; ADJUDICATION. Adjudication of bankruptcy on voluntary petition set aside, because a creditor's petition had been filed before the voluntary petition. The schedule and inventory were ordered to be held as if filed under the involuntary proceedings. In re R. R. Stewart (Tex. W. D.), 3 B. R. 28. See CIRCUIT COURT, 1, 2; CREDITOR'S PETITION, 7; INJUNCTION, 3; PARTNERSHIP, 1-6. AFTER-ACQUIRED PROPERTY. See EXAMINATION, 8. AMENDMENT. 1. The inventory may be amended even after the hearing on specifications of opposition to discharge, which have been held unsupported. - In re A. B. Preston (N. Y. S. D.), 3 B. R. 27. 2. A decision of the register allowing the bankrupt to amend his schedule, though opposed by a creditor, does not raise any issue of fact or law which can be certified to the court under § 4. Semble, that a creditor, who does not consent to the amendment is not estopped to rely on the original omission as ground for refusing the discharge. — In re H. H. Watts (N. Y. S. D.), 2 B. R. 145; s. c. 2 L. T. B. 74. See CREDITOR'S PETITION, 9; MARRIED WOMAN, 2; PROOF, II. 6. APPEAL. It does not lie in the mouth of an appellant who has appealed more than ten days after the order from which he has appealed, to say that such order was not a proper subject of appeal. — In re M. Kyler (N. Y. S. D. C. C.), 3 B. R. 11. See CIRCUIT Court, 4. ARREST. 1. A bankrupt was arrested on a claim for not accounting for the proceeds of goods sent to him as agent for sale. Held, that this was a debt created by his defalcation while acting in a fiduciary capacity, and that he was not entitled to be released from arrest. [Citing Chapman v. Forsyth, 2 How. 202.]—In re J. H. Kimball (N. Y. S. D. C. C.), 2 B. R. 114. 2. A. recovered judgment against B. in a State court on a debt which was stated in the record, though not in the declaration, to have been created by fraud. B. was adjudged a bankrupt, and A. proved his judgment debt. Held, notwithstanding, that the bankrupt was not entitled to be discharged from arrest and bail, nor was the judgment discharged. — In re W. E. Robinson (N. Y. S. D. C. C.), 2 B. R. 108; s. c. 2 L. T. B. 18. 3. When a State court in a civil action against the bankrupt, has issued an order of arrest founded on an affidavit that the debt, which was the cause of action, was created by fraud, this order cannot be gone behind on an application by the bankrupt for release from arrest, and such release will be refused, though the creditor has proved his debt, but proceedings in the State court will be stayed to await the determination of the court whether the debt is one that will be dis |
