Imágenes de páginas


priating and disposing of the property for his own benefit, will be
held to ratify the act and become liable, and the measure of his
liability, is the amount of money borrowed, and not that realized by
the sale: Watson vs. Bigelow, 47 Mo., 41.


ANSWER. An answer filed to the original complaint will stand as an answer to the complaint as thereafter amended unless defendant answers

It seems that if defendant answers anew the amended complaint, his original answer is to be considered as abandoned, and may be stricken from the files, on motion: Yates vs. French et al., 661; 25 Wis.


APPEAL. 1. An equitable action (as one to avoid an administrator's deed) must be brought to this court by appeal, and not by writ of error: Costello vs. Buch, 477; 25 Wis.

2. Where proof of due service of summons by publication was allowed to be filed nunc pro tunc, after appeal taken by the defendant, he would be allowed to dismiss his appeal without costs: Sueterlee vs. Sir, 357; 25 Wis. APPEAL BOND.-See ATTACHMENT, 6.

ASSESSMENT. 1. It is competent for the Legislature to authorize municipal corporations to assess the expense of local improvements upon property deemed to be particularly and specially benefited thereby in proportion to the benefit received. The Constitution does not expressly prohibit it, and there is nothing in the nature of the power of taxation inconsistent with it: Hoyt vs. The City of East Suginaw, 39; 19 Mich.

2. Where a statute provides that when a City Council shall decree an improvement necessary, they shall so declare by resolution, the declaration of the necessity for the improvement is a distinct preliminary act, which is indispensable to give the Council jurisdiction and without it the whole proceeding is a nullity: 16.

ASSIGNMENT FOR THE BENEFIT OF CREDITORS. 1. A deed conveying real and personal property to a trustee for the benefit of creditors, does not require for its validity, an affidavit by the grantee that the consideration is true and bona fide: Mackintosh vs. Corner et al., 33 Md., 598.

2. Where there is an assignment by a debtor for the benefit of his creditors generally, no particular creditor is concluded by taking under the assignment, from impeaching any of the debts attempted to be secured by it, and showing fraud and collusion in such of them as may stand in his way, and payment of which would operate to his prejudice: Ib.

3. But the fact that some of the preferred debts provided for in the assignment are fraudulent, and therefore void, does not render the assigoment itself a nullity; it is still good as to all debts that are bona fide: Ib.

4. If the grantee of real estate mortgage it back to secure the purchase-money, and the mortgagee assign bona fide the mortgage to the wife of the mortgager, such assignment will not operate as a discharge of the mortgage: Bean vs. Boothby, 57 Me., 295.

5. And if, when the mortgage given back for the purchase-money of real estate is assigned bona fide to the wife of the mortgagor, the husband quit-claim to her, and she thereupon convey to a third person, by a deed of warranty, therein referring to the mortgage, "as having been cancelled by assignment,” the mortgage will not thereby become merged, but it will be upheld: Ib.

6. A voluntary assignment in trust for creditors, which by its provisions, tends to hinder and delay creditors, and not assist them by distribution, is fraudulent and void in law The law allows assignfuents for the benefit of creditors, but not to put property beyond their reach, and allows the preferring of creditors therein.

A voluntary assignment by an insolvent, in trust for his creditors, which reserves to the assignor any benefit or advantage out of the property conveyed to the injury of the creditors, renders the assignment void.

An assignment that is fraudulent in any of its provisions is void in tolo, as against those entitled to take advantage of the fraud upon the principle that if a contract is void in part it is void altogether, but the same deed may contain several distinct contracts of conveyance, and then the fact that one contract is fraudulent, will not render void another contract which is legally distinct from it.


Neither the assignee nor the creditors are purchasers for value, and it is not necessary to bring a knowledge of a fraud in the assignment home to them, in order to render it void: Kayser vs. Heavenrich, 5 Kan., 324.

7. Where an assignee before maturity receives a promissory note, which discloses


its face the fact that usurious interest is reserved, he is bound to take notice thereof, and will hold the note subject to that defense: Hamill vs. Mason, 51 Ills., 488.

8. Courts of law will recognize and protect the rights of the assignee of a chose in action, whether the assignment be good at law or in equity only. In equity, all contracts and agreements may be signed, and the interest of the assignee will constitute a defense to a proceeding by garnishment: Morris, Adm'r, vs. Cheney, 51 Ills., 451.

9. Whatever assignment the payee of a note may make upon the same, he does not by such assignment, pass the legal bill to his assignee while it still remains in the hand of the payee or assignor : Richards vs. Darst, 51 Ills., 140.

10. The assignment of a mortgage by an indorsement thereon, without the assignment of the note secured by the mortgage, the mortgage not being an assignable instrument by indorsement, either at common law or by Statute, will not operate to pass the power of sale to the assignee, but it will still remain in the mortgagee: Hamilton vs. Lubukee, 415; 51 Ills.



ATTACHMENT. 1. The interest which the real owner has in a steamer, in his possession, may be attached, although another person has the record title as collateral security for a debt: Perry vs. Somerby, 57 Me., 552.

2. The delivery, by the attaching officer of property attached by him, to receiptors, and taking from them a written agreement, reciting the attachment, promising to return the property to the officer holding the execution within thirty days after judgment, and limiting their liability to a specific sum, does not dissolve the attachment: 16.

3. To sustain an attachment on the ground that the debtors were removing their property beyond the limits of the State to their creditors, proof of the fact that one of the debtors adınitted that the other, his partner, had absconded to another State and taken most of the means of the firm, leaving him to pay the debts, is alone sufficient. The fact, that he was aware of his partner's intention, and made no effort to prevent him from taking the firm means, implies that it was done with his consent, and renders both guilty of the fraudulent act : Bryant et al., vs. Simoneau, 51 Ills, 324.

4. The lien on goods taken in attachment, is not destroyed by taking the same under a writ of replevin against the officer, nor by filing a replevin bond; it is only suspended during the pendency of the replevin suit: Kayser vs. Bauer, 5 Kan., 202,

5. The lien of an attachment at law which does not specify the property against which it issues, does not attach until levy, as against intermediate purchasers: Vance vs. Cooper, 2 Heiskell, (Tenn.,) 93.

6. Upon a decree in favor of an attaching creditor and an appeal therefrom, the appellant gives an appeal bond. The giving the bond does not release the attachment: Magill vs. Sauer, 20 Grat. Va., 510.

7. Personal property, exempt from liability to attachment, was attached on mesne process in an action against the owner, who then agreed in writing with the plaintiff that it might be sold by auction on a certain day; but by reason of a second attachment, the sale was postponed for several months, and until, the owner in the meanwhile having taken the benefit of the bankrupt act, it was prevented altogether by the claiming and taking of the property, by the assignee in bankruptcy, from the officer in whose custody it had remained without

any notice from the owner that he claimed it as exempt from attachment. Held, that the owner must be deemed to have waived his privilege of exemption, and could not maintain an action against the officer for a conversion of the property: Dow vs. Cheney, 181, 103 Mass.

8. The liens of attaching creditors, under the law of Connecticut, regulating attachments on mesne process, take precedence in the order in which they are levied, and the first attaching creditor has sixty days in case of personal property, and four months in case of real estate, after final judgment, within which to perfect his lien and sequester the property in payment of his judgment debt: Beers vs. Ploce, 578, 36 Conn.

9. And each subsequent attaching creditor has the same periods of time respectively within which to levy his execution after the incumbrance of the next preceding attaching creditor is removed : 16. 10. A levy of an execution by a subsequent attaching creditor,

VOL. 1.-5

while the lien of a preceding attachment is pending on the property, is void. 16.



“Good current bank notes, are bank notes which circulate currently as money.” In the absence of proof, they are presumed to be at par, but subject to proof of their real value.

Upon a note executed after the act of Congress, for the issue of legal tender notes, the standard of comparison by which bank notes are to be estimated is legal tender notes, not gold and silver : English vs. Turney, 2 Heiskell, (Tenn.,) 617.

BANK. 1. A bank organized under the United States currency act as a National Bank, had failed to redeem its notes, and the Comptroller of the currency, under the provisions of the currency act, had appointed a receiver, who had taken possession of its assets, and its affairs were being wound up. A creditor presented a claim against the bank to the receiver, who disallowed it, and the creditor thereupon brought suit upon it against the bank. Held, that the proceedings of the Comptroller had not produced a forfeiture of the franchise of the bank and a dissolution of the corporation, and that therefore the suit would be against it: Puhquioque Bank vs. Bethel Bank, 325, 36 Conn.

2. Shares in National Banks located in this State, are subject to taxation by the State, although shares in the State Banks are not taxed eo nomine. The decision in V' n Slyke vs. the State, (23 Wis.,

n 655,) adhered to: Bagnall vs. The State, 112, 25 Wis.

3. Chapter 136, Laws of 1868, which provides "for the re-assessment and collection of delinquent taxes of 1865 and 1866, on the shares of National Banks in this State," is valid : Bagnull vs. The State, 112, 25 Wis.

4. An averment that the rate of taxation upon plaintiff's shares in a National Bank in this State, was greater than that assessed for “State Tax” upon other moneyed capital in the hands of individual citizens of the city in which plaintiff resided, held insufficient to show the tax illegal, it not appearing that such rate was greater than that imposed upon such other moneyed capital for State, County and municipal purposes. Ib.



« AnteriorContinuar »