N. Y. COURT OF APPEALS. Sanford v. Sanford. 21 N. R. R. Rep., pp. 565-566. A bankrupt has sufficient interest in preventing a judgment against him to defend the suit. Motion to dismiss an appeal. has a direct and exclusive interest to a certain extent. The judgment of affirmance appealed from contains also a judg ment against the bankrupt for the costs of the appeal incurred after the bankruptcy. These costs would not be provable against the bankrupt's estate, and his lia The opinion shows the facts and the bility therefor would, consequently, not grounds of the application. Opinion by Rapallo, J. After the recovery of judgment in this case, and an appeal to the General Term, the defendant was declared a bankrupt on his own application. The plaintiff, nevertheless, with notice of that fact, proceeded to the argument of the appeal at General Term, and obtained a judgment of affirmance and for the costs of the appeal. From that judgment the The defendant appeals to this court. plaintiff moves to dismiss this appeal, on the ground that it can only be prosecuted by the assignee in bankruptcy, and cites be affected by the discharge should he the case of Herndon v. Howard (4 N. B. N. Y. Supreme Court-GENERAL TERM, R., 212; 9 Wal., 664), as a controlling authority. THIRD DEPT. Kline v. Bauendahl, 2 N. B. R., Rep., 575, 576. Bankrupt not divested of his property until the appointee of an assignee. Giving to the decision in that case the largest effect which can legitimately be claimed for it, it amounts only to this; That in an appeal from a judgment against Defendants appealed from a judgment. an adjudged bankrupt, the assignee in They asked for a reversal on the ground bankruptcy may, if he see fit, intervene and be substituted for the bankrupt. that the plaintiffs' assignor had been adWhere the bankrupt is seeking to main-judged a bankrupt before making the tain a right to property, which right, if assignment, and therefore that he could existing, has passed to the assignee, the give the plaintiff no title. No assignee in bankruptcy troversy. was, however, appointed; and before the trial of this action the bankruptcy proceeding was discontinued. After the plaintiff's assignor, one Lee, latter is the proper party to prosecute the action or appeal. When the bank- had been declared a bankrupt, he asrupt is seeking to prevent the establish- signed to the plaintiff the claim in conment of a claim against himself, the assignee, in the interest of creditors, may well be allowed to intervene in order to exclude claims which, if established, might be entitled to dividends. But, in the latter case, the bankrupt also certainly has an interest sufficient to entitle him Held, Although plaintiff had been adto maintain an appeal. He may never obtain a discharge, and then the errone-judged a bankrupt, he was not thereby ous judgment will be a charge upon him. divested of his property. The title to it But, in the present case, the bankrupt was still in him, and would not pass from The defendants insist that the assignment of this claim to the plaintiff was, for these reasons, invalid. him, at the soonest, until the appointment ances and transfers of the respective of an assignee in bankruptcy. Whatever properties and estates so that they should retroactive effect the appointment of the be administered for the benefit of the assignee in bankruptcy might have is creditors by the said S. A. Potter and immaterial, as no assignee was appointed Wm. Wright as if they had been origSo, too, if the assignment of this claim is inally appointed assignees in bankruptcy. contrary to the policy of the Bankrupt Law, that is a position to be taken by creditors, or by the assignee in bakruptcy for them. It cannot be taken by these defendents. Judgment affirmed. Opinion by Learned, P. J. In accordance with an agreement among the creditors for the surrender of their claims, when receiving certain bonds of Grambo, nearly all the creditors of Bancroft and Grambo gave up to the trustees the mortgages held by them. Pending the transfer of real estate, fo prevent merger, all mortgages against the bankrupts' estate were temporarily assigned to Samuel Wright, who gave U. S. CIRCUIT COURT-E. D. OF PENN. the following receipt: IN EQUITY. Potter et al., v. Wright. Decided June 18, 1875. Where certain proceedings of trustees of a bankrupt appointed by the creditors were to be taken under an order of the Court, "subject to the approval of the Court," any rights under such proceedings cannot be enforced, unless that approval is shown. Bancroft and Grambo were severally adjudged bankrupts in 1873, and Samuel Wright was appointed assignee of both bankrupts. "Received of all the above recited assignments of mortgages to be assigned by me to William Wright and Stephen A. Potter, trustees of the es tate of Harrison Grambo." four bonds to obtain which the proceedAmong the said assignments were the ing was had. Samuel Wright falling ill, the bonds were placed in Grambo's fire-proof. The committee and trustees, not satisfied that such was the proper place, sent and obtained them, and they were placed in the fire proof of Potter, and the joint receipt of Potter and Wright given for them, Samuel Wright signing for Mr. Wright Subsequently, at a meeting of the creditors of the respective bankrupts, under the provisions of the 43d section of the Bankrupt Act, Stephen A. Potter Samuel Wright and Grambo afterand William Wright were appointed wards, in Potter's absence, having intrustees; who under the direction of a duced his, Potter's, wife, to open the safe, committee of creditors were to wind took the four mortgages in question from and settle the estates of the bankrupts the safe and placed them in the safe of as one estate, the proving creditors con- Grambo again, and their return or assenting to such deeds as might be neces- signment was refused. sary to carry the resolutions of the creditors' meeting into effect. up A decree was prayed directing the defendant Samuel Wright, to assign to the complainants the said bonds and mortgages, and restraining him from as signing them to others. Cadwalader, J., decided: Upon the motion of the counsel of Samuel Wright, as assignee, and creditor, and for other creditors, the Court, Judge Cadwalader, ordered, inter alia, that the said assignee in each case, and the re- The complainant's right to the mort spective bankrupts, should, under the gages depends upon the order of Court direction of the Register, "subject to the referred to in the bill. The conveyances approval of the Court," execute convey-and transfers were, by the order, to be made "subject to the approval of the York. On the same day plaintiffs reCourt," which has not been obtained. On appeal by complainants it was claimed: That it was not understood that any thing more than the acquiescence of the Court was required, where there was no dissent by the creditors. The Register, the Court's officer, approved the proceedings, and was obeyed; the Court's approval was therefore inferred; That the Court was only to interfere when required by creditors, chartered the brig to a third party for the return trip from Great Isaacs, Bahamas. By the terms of the charter-party from defendants to plaintiffs, they, defendants, were to furnish full cargoes or ballast for the trip. Plaintiffs in their instructions to the captain directed him, on arriving at Nassau, to report to one Farrington for any instructions he might need to proceed to Great Isaacs. On the arrival the captain so reported, and was informed that there was no cargo for And that the Court will not look to title the brig at Great Isaacs. The captain as against a wrong-doer. Held, McKennan, J. Section 5,103, page 989, Revised Statutes, shows that a responsibility was imposed upon the Court which it cannot shirk. Under this Section, Judge Cadwalader made the order referred to in the title, but reserved his approbation of the measures to be adopted, by directing that they should be made "subject to the approval of the Court." An essential element is therefore want. ing to the establishment of the complainants' rights, and they are not entitled to the relief they ask for. Bill dismissed, without prejudice. CHARTER-PARTY. NEW YORK SUPREME COURT-GENERAL then proposed to proceed to that port in accordance with the terms of the charter party, and then return to New York in ballast. Farrington acting as agent for the parties who were to furnish the cargo from Great Isaacs agreed to and paid to the captain the sum of four hundred dollars in gold to load directly from Nassau to New York, as payment for breach of the charter-party. This action was brought by plaintiffs against defendants, to whom this amount had been paid by the captain, to recover this amount, plaintiffs claiming that the money was received by the captain of the brig as their agent. Held, That the sub-charter did not take effect until the brig arrived at Great Isaacs; that the instructions to report to Farrington gave no power to him, or the captain to break the original charter party; that the duty of the captain was to have reported to plaintiffs, or their Moss et al., Respts., v. Huested, Applt. agent, that there was no load for him at Great Isaacs, and give them a chance to Decided August 24, 1875. make such arrangements as they chose Breach of Charter-Party.—Sub-Charter. with the sub-charterers. If such arrange-Agency of Captain. ments did not conform to the original Appeal from judgment entered on agreement he need not execute it, or verdict. might exact additional compensation for Plaintiffs, on June 4, 1869, chartered the owners. The cptain was the agent of defendants the brig San Juan for a of plaintiffs for the purpose of carrying voyage from New York to Nassau out the sub-charter, and cannot be held to thence to Great Isaacs, and back to have rightfully declared the original Hampton Roads for orders to discharge charter party broken. Plaintiffs could either at Baltimore, Philadelphia, or New elect to affirm the contract made by the captain with the sub-charterer as valid on their behalf, and are thus entitled to the money in his hands. He then put both arms around her, and as he did so the pistol fired, and as the Defendants have pistol fired she fell over into George's arms and sank to the floor. George said, For God's sake forgive me, Milly; I did not think it would hurt you.' He then said to me, 'Go, Henry, and bring the doctor; please go, Henry-quick!” The statement of this witness was cor held plaintiffs to the original charter. party, and have received the full amount to be paid thereon, and cannot also insist on the new contract made with the sub-charterer. Judgment affirmed. Opinion by Davis, P. J.; Daniels, J. roborated. concurring. CRIMINAL LAW. MANSLAUGHTER. SUPREME COURT OF TENNESSEE. Nelson, in error v. The State. Case not yet reported. The conviction was for voluntary manslaughter. The laws of Tennessee declare that:-"Manslaughter is the unlawful killing of another without malice either expressed or implied, which may be either voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act." And that involuntary manslaughter is "where it plainly appears that neither death or bodily harm was intended, but death is accidentally caused by some un It is not voluntary manslaughter when the death is caused by a pistol fired in a joke, with no intention to kill, or to do bodily harm. Indictment for murder. Plea. Not lawful act or any act not strictly unlaw guilty. ful in itself, but done in an unlawful manner and without due caution." The prisoner had been shooting a small pistol in celebrating Christmas Day, and he caused the death of the young girl, Milly, by shooting her with the "wad" of the load. The evidence of the witness was:"He," meaning the prisoner, "came into my room just after he had shot once and loaded his pistol. While in my room loading his pistol he said that he intended to go into Milly's room and shoot and kill her, unless she would kiss and hug him. When he loaded his pistol he went into Milly's room, and I heard him say, 'kiss me, Milly,' or ' I want you to kiss me.' She answered, 'I wont do it; go away from me, George.' I then heard the pistol fire." Another witness testified : On appeal. Held, 1. That the statutory manslaughter is in substance the same as at common law. 2. That neither death nor bodily harm' was intended, and the proof does not sustain a conviction for voluntary man slaughter. New trial awarded. SUPREME COURT OF TENNESSEE. CARRYING PISTOL. Hallum, in error v. The State. A plea in abatement will not be received after a general continuance. Errors in Judge's charge. Indictment for unlawfully carrying a pistol. Plea. Not guilty. "George Nelson came into the room with a pistol in his hand; he went up to Milly and said, 'Milly, I want you to hug me,' or ‘I want you to kiss me.' She answered, 'I wont do it.' He then The presentment contains two counts: said, 'If you don't do it I will shoot you.' First, for unlawfully carrying a pocket pistol, a belt pistol and a revolver pistol, not used in the U. S. army. Second, for unlawfully carrying a revolver pistol not openly in his hands. The presentment was made at the August Term, 1872, and at the April Term, 1873, there was a general continuance of the case. At the August Term, 1873, the defendant filed his plea in abatement for misnomer, filed his plea in abatement for misnomer, which was stricken out on motion, because filed after a general continuance at a former term. DEED. SUPreme Court of NEW HAMPSHIRE, Reed v. Hatch, 55 N. H., Rep. 327. Proviso applied to grant. Writ of error under the proviso. A. conveyed to B. a piece of land on which a saw-mill was standing, and a right of flowage of A.'s adjoining land. Following the habendum clause in the deed, were the usual covenants in the ordinary forms of warranty deeds. These were printed. After the coveDefendant was then tried, and a ver- ants was inserted the following in writdict of guilty was rendered under the ing: "provided said mill is kept for proof and charge of the Court. The manufacture of lumber, or as long as it proof was: defendant was at a public is kept for said use." After the last place, not on his premises, wearing a word in the printed covenants was a pistol in his belt, which was a navy six printed period. The next word, "proor army pistol. The charge of the Court vided," began with a small p, and not was as follows: "If you find that the with a capital. The mill was destroyed defendant carried a pistol not openly in by fire. After the lapse of a year the his hands, off his premises in a public grantor requested the grantee to erect place and within the jurisdiction of this a new mill on the premises, which the Court, within twelve months prior to the grantee neglected to do. After a reafinding of the indictment, you will find sonable time for such erection, the granthim guilty." or brought a writ of entry to recover the premises. On appeal. Defendant argued that it was error to strike out the plea in abatement; and that the charge was erroneous. Held, 1. That the proviso in the deed applied to the grant, and was not restricted to the covenant of warranty. 2. That the erection within a reasona Held, That a plea in abatement can-ble time, and the maintenance of another not be received after a general continu ance. 2. The charge is remarkable for its brevity, but we are unable to see that it does not contain every necessary constituent of a good charge. The proof made out clearly a case of wearing an army pistol, in a belt, at a public place. The charge was that if defendant carried a mill similar to the mill destroyed, would have been a compliance with the terms of the condition or proviso of the deed; but the failure to erect and maintain such mill entitles the grantor to maintain his writ of entry. Opinion by Foster, C. J. pistol, not openly in his hands, in a pub- EXECUTORS AND ADMINISTRA lic place, etc., he would be guilty. As brief as is the charge, we think it declared the law correctly as applicable to the facts of the case. Judgment affirmed. Opinion by Nicholson, C. J. TORS. NEW YORK SUPREME COURT-GENERAL Bank of California, Respt, v. Collins, Decided Aug. 24, 1875. An action brought against, trustees of a |