That on or about October 21, 1871, conclusion of law, that the whole amount the defendant, Emily E. Purdy and her of the mortgage of $5.000 was due with husband executed a bond in the penalty interest and that plaintiffs were entitled of $10,000, conditioned to pay the sum to decree of foreclosure and sale. of $5,000 on October 23, 1872, with in- Held, That the agreement for the terest payable semi-annually; and that loan being entire, and the stipulations as a collateral security thereto, executed for the reservation being made with the a mortgage on the same day and delivered understanding between the agents of the same to plaintiffs, whereby they granted plaintiff and defendant, that a portion of etc., the real estate in the complaint de- the bonus, to wit; $350, was to go to scribed, and that the following circumstan- plaintiffs, the agreement was usurious. ces attended the procurement of the loan. The agent exacted $350 on behalf of his The application was made by Mrs. principals beyond the seven per cent inPurdy, through her agent, S., to B. plain- cluded in the bond. That was sufficient tiff's agent, for a loan of $5,000, to create an agreement that the plaintiffs on the real estate described in the com- themselves should be paid $350 for the plaint; that of the $5,000, the amount use of the money loaned over the statuof bond, Mrs. P. received $4.500, the tory rate of seven per cent. It made a remaining $500 being retained by B., plain case of an usurious loan. The rule plaintiff's agent, and as stated by him to laid down in the case of Condit v. BaldS., Mrs. P's agent, at the time, $150 win, (21 N. Y. 219,) and Bell v. Day, thereof was retained by himself for his (32 N. Y. 165,) are clearly distinguishable whilft services in searching the title, from this case, as in those cases no bonus etc.. the remaining $350 was retained was exacted by the agents for their own to go to plaintiffs as a bonus for the benefit. There was no agreement beloan; that when the bond became due, tween the borrowers agent and the lend$2.500 of the principal was paid, and ers, that a certain portion of the bonus the remaining $2,500 extended for should go to the principals. months on three payment of $62,30 by Mrs P. as a bonus for such extension, that about three months thereafter, the $2,500 paid was re-loaned, the mortgage remaining security for the re-loan; Again, by undertaking, as the plaintiffs that $225 was paid for such re-loan, which did, to enforce the security after they B., plaintiff's agent stated to Mrs, P.s' had notice of the facts, they necessarily agent was all to go to plaintiffs; adopted the transaction through which that before the commencement of this it had been acquired. The present case action, the plaintiffs were aware that is not materially different from that of Mrs. P. asserted the defense of usury, Algen v. Gardiner, (54 N. Y. 360,) set up by her in this action, by reason where it was held that the principal could of the aforesaid payments of bonus; that none of the money so paid as bonus was ever received by the plaintiffs or applied to their benefit, and that they never authorized B. their agent, to take or agree for more than seven per cent interest per annum. Also, that plaintiffs aware that B. exacted $250, as as a bonus for the the reloan of the 2.500, and on the foregoing facts found as a

were

The fact that the principals did not authorize the agent to take more than seven per cent, does not make legal an agreement which was illegal.

not avoid the consequences of an usurious loan by proof of the fact that his agent had no authority to lend his principals money at a greater rate than seven per cent.

The judgment should be reversed and a new trial ordered, with costs to defendants appealing to abide event.

Opinion by Daniels; J.; Davis, P. J., and Brady, J. concurring.

NEW YORK WEEKLY DIGEST.

States Commissioner to examine the proofs, and report whether the required

VOL. 1.] MONDAY, DECEMBER 27, 1875. [No. 20. number and amount have joined therein.

BANKRUPTCY.

U. S. DISTRICT COURT-N. D. OHIO.

In re Edward Sargent.

13 N. B. R. Rep., p. 144.

Creditor withdrawing from a petition.
Misrepresentation to creditor to induce
him to join in petition.
Affidavit to petition, defective in form,
may be amended.
Necessary amendments.
Attorney verifying petition must show

authority.

Creditor.

Whether a sufficient number of creditors have joined, should be determined by reference to Register or United States Commissioner.

N. Y. COURT OF APPEALS. Cardot, extrx., etc., applt. v. Barney, respt.

Decided November 30, 1875.

A public officer is responsible only for his own negligent acts.

This action was brought to recover damages for the death of plaintiff's testator, who was killed while a passenger upon the Corry and Pittsburgh R. R. Co. Defendant had, prior to the accident, been appointed assignee in bankruptcy of said railroad, and as such assignee, at the time of the accident, was operating the road. It appeared that defendant's relation to the road and its operations was entirely official, and that he had no interest in or control over the earnings, and there was no evidence given of any personal negligence or care2. That where assent to join in petition lessness on his part in the selection of is obtained by misrepresentation or agents or the performance of duty, and misunderstanding by the creditor, upon the negligence complained of was that of the same being shown to the court, such creditor will be allowed to withdraw at any time before adjudication.

Welker, J.-Held, 1. That where creditors in good faith join in petition in bankruptcy, they cannot afterwards withdraw so as to leave a less number and amount of the creditors than is required by law, and deprive the court of jurisdiction as to the matter of adjudication.

3. That the affidavit to the petition being defective in form, it may, on motion, be amended so as to conform to law.

4. That a creditor who has in good faith jomed in the petition, cannot afterwards object to amendments thereof which appear necessary to the prosecution of the same to final effect.

5. That where an attorney verifies the petition, the affidavit thereto, or other proof, he must show his authority for making such verification.

a superintendent and other employees necessarily and properly employed by defendant under orders of the court.

Held, That the doctrine of respondeat superior did not apply; that defendant could only be held to answer for his own acts and neglects; that in all authorized acts connected with the operation of the road, as defendant acted as the representative of, and by orders from the court, he was only held to diligence and good faith, and that therefore defendant was not liable. Ballou v. Farnum, 9 Cal. 47; Lamphaer v. Buckingham, 33 Com. 237, distinguished and explained.

Public officers performing their duties 6. That where a question is made as through the agency, and with the assistto whether a sufficient number and ance of subordinate agents employed by amount of creditors have joined in the them, whether acting gratuitously, or for petition, it is proper and the better a compensation, are not answerable for practice to refer to a Register or United the neglect or wrongful acts of their sub

ordinates. 1 Ld. Mansf. 646; 1 Salk. 17; Cowp. 754; 2 Bing. 156; 6 Cl. and Fin. 894.

Subsequently, on said 3d day of August, the plaintiff filed his affidavit with said justice, averring that the collection of Defendant's position and relation to the his judgment would be endangered by agents employed by him are not analo- further delay in the issuing of execution. gous to that of a sheriff and his deputies. Thereupon an execution was issued on These are exceptions to the general said judgment, which was immediately rule. The poundage and other fees to levied upon the goods and chattels of the which a sheriff is entitled for acts done by said Aughinbaugh sufficient to satisfy their deputies, are deemed a just equivalent for their responsibilities. 2 Bing. 156; Hall v. Smith, 2 Bing. 156; Bush ▾. Steinman, 1 B. and P., 404; Rogers v. Wheeler, 43 N. Y., 598; Sprague v. Smith, 29 Vt., 421; Barter v. Wheeler, 49 N. H., 9. Ferrin v. Myrick, 41 N. Y., 315, distinguished.

Order of General Term granting new trial affirmed.

Opinion by Allen, J.

DISTRICT COURT-INDIANA.

the debts and costs. And later, on said day, the said Aughinbaugh filed his voluntary petition and was adjudged a bankrupt.

Justices of the peace in Indiana have jurisdiction to try and determine suits founded on contract, when the debt does not exceed two hundred dollars.

Unless otherwise directed, justices shall issue execution on all judgments, when the defendant has appeared, after the expiration of four days from the rendition thereof; and in cases of default after the expiration of ten days; but when it

Witt, Assignee of Aughinbaugh, Bank- shall be made to appear by affidavit that

rupt, v. Hereth.

13 N. B., R. Rep.

A party may pursue a debtor, and hold in execution, though he knew the debtor was bankrupt.

The collusion will be in fact between the creditor and the bankrupt, if the creditor follows his legal remedy.

delay will endanger the collection of the judgment, execution shall issue immediately.

It was insisted that the justice had no jurisdiction to render the judgment, because the note sued on exceeded the sum of two hundred dollars, and that the statute did not allow the plaintiff to reOn the 31st day of July, 1875, Henry mit part of his claim so as to reduce it to Hereth filed his complaint before Wil- two hundred dollars, for the purpose of liam H. Schmitts, a justice of the peace giving the justice jurisdiction. in and for Center township, Marion It was further insisted that the filing county, Indiana, demanding judgment of the affidavit, the issuing and levy of against William Aughinbaugh for two the execution upon the same day upon hundred dollars upon a note, the princi- which the judgment was rendered, and pal of which was two hundred dollars the subsequent commencement of volunand eighty-three cents, and on the same tary proceedings in bankruptcy on the day a summons was duly issued to a con- some day, show collusion between the stable of said township, and served on plaintiff and the bankrupt, and somesaid Aughinbaugh. On the 3d day of thing more than passive non-resistance August, at nine o'clock, A. M., that be- on the part of the latter. ing the time at which said cause was set for trial, the said Aughinbaugh was duly called and defaulted, and judgment was entered for the plaintiff for two hundred dollars and costs of suit.

Held, Gresham, J.-1. Even if it had appeared that the plaintiff had thus reduced his claim by remitting the interest and part of the principal, I would have no doubt on the question of jurisdiction.

The amount demanded determined the jurisdiction of the justice, and not the principal of the note or the amount actually due on it. If the plaintiff saw

U. S. DISTRICT COURT, N. D. OHIO.
In re Tonne.

13 N. B. R. Rep. p. 170.

Exemption. Homestead. Wife's propererty. Partnership.

proper to reduce his claim to a sum within the jurisdiction of the justice by reWelker, J. Held, 1. That when the mitting part of it, no one had a right to wife of the bankrupt is the owner of complain, for no one lost anything but himself. (Wetherill v. the Inhabitants, house, not occupied as a homestead by the family, nor allowed to be so occupied ctc., 5 Black f., 357: 6 Tb., 63.) Clearly the plaintiff was barred from maintaining by the wife, such bankrupt is entitled to another action on the same note, even if exemption of property to the value of five his judgment was for less than was due hundred dollars, nothwithstanding such him. The facts agreed upon fail to ownership by the wife.

show that the plaintiff remitted any part of his claim, and the presumption is that

he demanded all that was due him.

2. That a partner in a firm in involuniary bankruptcy, is not, under the Ohio exemption laws, nor the bankrupt Law, entitled to have set off to him out of the joint property of the firm, property to the value of five hundred dollars.

BONA FIDE PURCHASER.
N. Y. SUPREME COURT-GENL. TERM.
FIRST DEPT.

2. I do not think there was collusion shown. All the circumstances might have existed without collusion. It must be admitted that the circumstances ex- 3. That such partner is only entitled cile a suspicion that the bankrupt was to such exemption out of his individual trying to aid the plaintiff in obtaining a property, if such he may have. lien, but they go no further. It may be that the plaintiff knew of the insolvent condition of the bankrupt before he commenced his action, and that he hoped, by diligence, to get an advantage over the other creditors. He pursued a remedy that the law gave him. The other creditors were not equally diligent, and none of them saw proper to institute proceedings in bankruptcy, and invoke the aid thereby of this court, to prevent the plaintiff from obtaining his judg ment, execution, and levy, and the law imposed no duty on the bankrupt to go into voluntary bankruptey to defeat the plaintiff in his efforts to procure a lien. (Wilson v. City Bank, etc., 9 N. B. R., 97; Wal., 473.)

It was as much a part of the plaintiff's remedy to file his affidavit and cause his execution to be issued and levied before the expiration of ten days, as it was to obtain his judgment.

An order will be entered requiring the assignee to pay said judgment and costs out of any funds in his hands not otherwise appropriated.

Dudley, respt. v. Gould, impld., etc., et al., applts.

Decided December 6, 1875. A purchaser's tille to stock bought in the open market, though at an inadequate price, will be maintained. Appeal from order made at Special Term continuing injunction.

One Shear, a judgment debtor of plaintiff and co-defendant herein, of whose property a receiver had been appointed, owned certain shares of the Mutual Benefit Ice Co's stock, which appeared to be still his at the time of the appointment of the receiver.

Sometime after the appointment of the receiver, defendant Gould, bought the stock in open market from outside parties at a price equal to about 50 per cent. of their par value; plaintiff sought to have this sale set aside as bring a fraud on plaintiff and as having been made in

collusion with Shear. Gould denied all not trading either as Margaret or Mary knowledge of Shear or collusion with O'Brien; that his wife, Mrs. Margaret him.

The affidavit of defence suggested that Husband and wife. Liability of husband."the paper filed does not entitle plainRule for judgment for want of a suffi- tiffs to a judgment for want of an affidacient affidavit of defence.