« SebelumnyaLanjutkan »
FOUR VOLUME OF HOWARD CONTAINED IN THIS BOOK.
FORMED BY CONSOLIDATION.
N. B.--Figures at right of title show volume to whose index it belongs.
Figures in parenthesis refer to marginal paging of the volumes contained in this book respectively,
See practice and writ of error.
1. An appeal bond given to the people or to the
relator is good, and if forfeited may be suod upon
be approved by the court.
APPROPRIATION OF PAYMENTS-1.
1. The action of assumpsit for the use and occupa-
tion of lands and houses, existed in Virginia ante-
Lloyd v. Hough,
2. But this action is founded upon contract, either
express or implied, and will not lie where the pos-
session has been acquired and maintained under a
and makes the holder a trespasser.
Since the passage of the Act of Congress of March
customs to place to the credit of the Treasurer
of the United States all money which they receive
for unascertained duties or for duties paid under
protest, an action of assumpsit for inoney had and
received will not lie against the collector for the
return of such duties so received by him.
Cary v. Curtis,
The laws of Louisiana, allowing attachments for
(lb.) 979 1. Money in the hands of a purser, although it may
Buchanan v. Alexander,
(Ib.) 979 hands of a disbursing officer, it is as much the
the twenty-fifth section of the Judiciary Act.
ul.) 126 has his remea Zacharie,
bill in equity or other plenary proceeding; and also 1. Upon questions adjourned from the District to jurisdiction to proceed summarily. the Circuit Court under the "Act to establish a uni
(Ib.) 603 form system of bankruptcy throughout the United
10. The principles established in the case of Er. States," the District Judge cannot sit as a member
parte The City Bank of New Orleans in the matter of the Circuit Court, and, consequently, the points of Christy, assignee of Walden, reviewed and conadjourned cannot be brought before this court by urmea. a certificate of division.
Norton's Assigmee v. Boyd,
(438) 664 Nelson v. Carland,
11. But tbis court does not decide whether or not 2. Nor will an appeal or writ of error lie from the
the jurisdiction of the District Court over all the decision of the Circuit Court; and it is conclusive
property of a bankrupt, mortgaged or other
wise, is exclusive, so as to take away from the upon the district judge. Id.
(b) 126 State courts in such cases. 3. The Bankrupt Act declared to be constitutional
(Ib.) 664 by the Circuit Court of Kentucky. Note to Judge
2. Where the defendant below became a bankCatron's dissentient opinion.
rupt, this court will not award a supersedeas to stay (b) 126 an execution, because the assignee of the bankrupt
has his remedy in the Circuit Court. BANKRUPTCY-2.
Black v. Zacharie,
(483) 690 1. Under the late Bankrupt Act of the United States, the existence of a fiduciary debt, contracted
BANKS-1. before the passage of the act, constitutes no objec
See Commercial Law. tion to the discharge of the debtor from other
Whenever a banker has advanced money to andebts.
other, he has a lien on all the paper securities Chapman v. Forsyth and Limerick, (202) 236 |
which are in his hands for the amount of his gen2. A factor, who receives the money of his prin
eral balance, unless such securities were delivered cipal, is not a fiduciary within the meaning of the
to hinn under a particular agreement. act.
Bank of the Metropolis v. New England 236
Bank, 3. A bankrupt is bound to state,upon his schedule,
(234) 115 the nature of the debt if it be a fiduciary one. Should
BILLS OF EXCEPTIONS-4. be omit to do so, he would be guilty of a fraud,
The mode in which bills of exceptions ought to be and his discharge will not avail him ; but if a cred
taken, as explained in Walton v. The United States itor, in such case, proves his debt and receives a
(9 Wheat., 651), and in 4 Peters, 102, will be strictly dividend from the estate, he is estopped from after
adhered to by this court. wards saying that his debt was not within the law.
Brown v. Clarke,
(4) 850 4. But if the fiduciary creditor does not prove his debt, he may recover it afterwards, from the dis
BILLS OF EXCHANGE AND PROMISSORY charged bankrupt, by showing that it was within
NOTES-2. the exceptions of the act.
1. By the general law merchant, no protest is ree Id.
(Ib.) 23 quired to be made upon the dishonor of any promBANKRUPTS AND BANKRUPTCY-3.
issory note; but it is exclusively confined to for
eign bills of exchange. 1. In Kentucky,the creditor obtains a lien upon the Burke v. McKay,
(66) 181 property of his debtor by the delivery of a n. fa. to 2. Neither is it a necessary part of the ofbcial duty the sheriff; and this lien is as absolute before the of a notary, to give notice to an indorser of the levy as it is afterwards.
disbonor of a promissory note. Savage': Assignee v. Best,
(Ib.) 181 2. Therefore, a creditor is not deprived of this lien! 3. But a State law or general usage may overrule by an act of bankruptcy on the part of the debtor | te general law mercbant in these respects. committed before the levy is made, but after the
(11.) 181 execution is in the hands of the sheriff.
4. Where a protest is necessary, it is not indispepsId.
(Ib.) 618 able that it should be made by a person who is in 3. This court has no revising power over the decrees fact a potary. of tbe District Court sitting in bankruptcy ; nor is
(1) 181 it authorized to issue a writ of prohibition to it in 5. Where the indorser has discharged the maker of any case except where the District Court is pro- a note from liability by & release and settlement, & ceeding as a court of admiralty and maritime juris notice of nonpayment would be of no use to him, diction.
and therefore he is not entitled to it. Er-parte Christy,
* (Ib.) 181 4. The District Court, when sitting in bankruptcy, 6. A statute of Mississippi allows suit to be has jurisdiction over liens and mortgages existing brought against the maker and payee, jointly, of a upon the property of a bankrupt, so as to inquire promissory note, by the indorsee. into their validity and extent, and grant the same Dromgoole v. The Farmers' and Merrelief which the State courts might or ought to
chants' Bank of Mississippi, (241) 252 grant.
7. But an action of this kind cannot be maintained
(Ib.) 603 in the courts of the United States, although the 5. The control of the District Court over proceed- plaintiff resides in another State, provided the ings in the State courts upon such liens,is exercised, , maker and payee of the note both reside in Missisnot over the State courts themselves, but upon sippi. the parties, through an injunction or other appro
(Ib.) 252 priate proceeding in equity.
8. Where rotes are deposited for collection by way Id.
(Ib.) 603 of collateral security for an existing debt, the case 6. The esign of the Bankrupt Act was to se does not fall within the striot rules of commercial cure a prompt and effectual administration of the law, applicable to negotiable paper. It faits under estate of all bankrupts, worked out by the courts the general law of agency; and the agents are only of the United States, without the assistance of State bound to use due diligence to collect the debts. tribunals.
Lawrence v. M'Calmont,
(4:27) 396 Id.
(1.) 603 9. Where the drawer of a bill has no right to expect 7. The phrase in the 6th section "any creditor or the payment of it by the acceptor ; where, for increditors who shall claim any debt or demand understance, the drawer has withdrawn, or intercepted the bankruptcy," does not mean only such credit- funds which were destined to meet the bill, or its ors who come in and prove their debts, but all cred-payment was dependent upon conditions which be itors who have a present subsisting claim upon must have known he had not performed, such the bankrupt's estate, whether they have a security drawer cannot be entitled to notice of the nonpayor mortgage therefor or not.
ment of the bill.
(457) 338 8. Such creditors have a right to ask that the prop 10. It becomes a question of law,whether due dilierty mortgaged shall be sold, and the proceeds ap- gence has or has not been used, whenever the facts plied towards the payment of their debts; and the are ascertained; and therefore there is no error in assignee, on the other hand, may contest their the direction of a court to the jury that they should claims.
infer due diligence from certain facts, where those Id.
(Ib.) 603 facts, if found by the jury, amounted in the opin9. In the case of a contested claim the District ion of the court to due diligence. Court has jurisdiction, if resort be had to a formal!
u. If the drawer and acceptor are either general 3. In 1663, the grant of Rhode Island called to be
(lb.) 338 4. Whether the measurement of the three miles
6. In 1642, Woodward and Saffrey fixed a station
(b.) 338 | three miles south of the southermost part of one
8. In 1702. commissioners were appointed by
(711) 439 | Massachusetts and Rhode Island to run the bound-
9. In 1710, Rhode Island appointed an agent to
(Ib.) 439 conclude the matter on such terms as he might
(16.) 439 11. In 1718, Rhode Island again appointed com-
the line run accordingly by commissioners, and the
(lb.) 439 running approved by Rhode Island.
12. The allegation that the commissioner's of
Rhode Island were mistaken as to a fact, and be-
lieved that the stake was within three miles of the
main river, and not one of its tributaries, is diffi-
cult to establish, and cannot be assumed against
transactions which strongly imply, if they do not
prove, the knowledge.
13. If the first commission was mistaken, it almost
surpasses belief that the second should again he
inquiry on the subject.
could relieve against a mistake committed by so
(lb.) 1109 | bigh an agency in a recent occurrence. It is certain
(11.) 1109 18. Even if the mistake were proved, it would be
(lh.) 1109 which this great principle may be invoked with
greater justice and propriety, than in a case of dis-
The aruty regulations under which General
ties of his commission proper.
from the beginning of this jurisdiction, there was
always a limitation of suit in this court. 1. If the owner of land recognizes a sale of it, al
Bowman et al. v. Wathen et al.,
" (199) 97 though made by a person who had no authority to sell, there is a privity of contract between the
17. Every new right of action, in equity, that acowner and the purchaser, which a court of equity
crues to a party, whatever it may be, must be acted will entorce. :
upon, at the utmost, within twenty years.
18. And though the claimant may have been em2. But the owner is entitled to all the advantages
barrassed by the frauds of others, or distressed, it is of the sale thus recognized.
not sufficient to take the case out of the rule. Ia.
(I.) 97 3. A perpetual injunction will be decreed in such 19. Where the complainants have long slept upon case, to prohibit the owner of the legal title from
their rights, this court must remain passive and prosecuting his ejectment.
can do nothing; and this is equally true, whether la.
they knew of an adverse possession, or, through 4. A deed, absolute on the face of it, is yet some
negligence and a failure to look after their intertimes treated as a mortgage.
ests, permitted the title of another to grow into Morris v. Niron et al.,
full maturity. 5. Where a bill substantially charges that there is
(Ib.) 97 a fraudulent attempt to hold property under a deed, 20. Where a decree is passed by the court below absolute on the face of it, but intended as a security against an executor, being the defendant in a chantor money loaned, evidence will be admitted to as cery suit, and before an appeal is prayed the execucertain the truth of the transaction.
tor is removed by a court of competent jurisdiction, Id.
(Ib.) 89 and an administrator de bonis non, with the will an6. Where there is proof of parties meeting upon | nexed, is appointed, all further proceedings, either the footing of borrowing and lending, with an by execution or appeal, are irregular, until the offer to secure the lender by a nortgage upon par- administrator be made a party to the suit. ticular property; if a deed of the property, absolute
Taylor et al. v. Savage,
(289) 132 on the face of it, be given to the lender, and the lend
21. If an execution be issued before the proper er also take a bond from the borrower, equity will parties are thus made, it is unauthorized and void, interpret the deed to be a security for money loaned, and no right of property will pass by a sale under it. unless the lender shall show, by proofs, that the
(Ib.) 132 borrower and himself subsequently bargained upon
22. The administrator cannot obtain redress by apanother footing than a loan.
plication to this court, but must first be made a Id.
party in the court below. This may be done at the 2. Where a loan is an inducement for the execution
instance of either side. of a deed which is absolute on the face of it, though
(Ib.) 132 the loan is not recited as the consideration of the
23. After he is thus made a party, he may stay prodeed, or as any part of it, if the lender or gra nteeceedings by giving bond, or the complainants may in the deed treats it subsequently as the considera
enforce the decree, if the bond be not given in time. tion, or a part of it, equity will declare the deed to
(b) 132 be a security for money loaned.
24. It is not clear that a complainant, who has apId.
pealed from a decree in his favor in the hope of ob8. The answer of one defendant in equity is not taining a larger sum, can, pending the appeal, issue evidence in behalf of another defendant.
execution upon the decree of the court below. Id.
(Ib. 132 9. If, in equity, it is adinitted or proved that one of the documents in a transaction was not intended
CHANCERY-2. to be what it purports, it subjects other documents
1. Where a party seeks relief which is mainly apin the same transaction to suspicion.
propriate to a chancery jurisdiction, in the Circuit Id.
(10.) 68 Conrt of the United States for Louisiana, chancery 10. A fact tried and decided by a court of compe
practice must be followed. tent jurisdiction, cannot be contested again be
McCollum v. Eager,
(61) 179 tween the same parties; and there is no difference
2. A writ of error is not the appropriate mode in this respect between a verdict and judgment at
of bringing up for review, a decree in chancers. common law and a decree of a court of equity.
| It should be brought up by an appeal. Bank of the United States et al. v.
(I.) 179 Beverly et al.,
3. An appeal will lie only from a final decree: and 11. But an answer in chancery setting up, as a de not from one dissolving an injunction, where the fense, the dismission of a former bill fled by the bill itself is not dismissed. same complainants, is not sufficient unless the
(Ib.) 179 record be exhibited.
4. The decisions and dicta of English judges, and ld.
(Ib.) 75 the recent publication of the Record Commission12. d disposition by a testator of his personalers in England, examined as to the jurisdiction of property to purposes other than the payment of chancery over charitable devises anterior to the his debts, with the assent of creditors, is in itself a statute of 43 Elizabeth. charge on the real estate, subjecting it to the pay
Vidal v. Girard's Executors,
(127) 205 ment of the debts of the estate, although no such
5. Where there are many parties in a case below, charge is created by the words of the will.
it is not necessary for them all to join in the appeal Id.
(Ib.) 75 13. Lapse of time is no defense where there is an bond be approved by the court.
bond. It is sufficient if they all appeal and the unexecuted trust to pay debts which have been de
Brockett v. Brockett,
(238) 251 clared by a court to be unpaid in point of fact. Id.
6. No appeal lies from the refusal of the court be(Ib.) 75
| low to open a former decree. 14. There must be conscience, good faith, and rea
(ID.) 281 sonable diligence, to call into action the powers of a
7. But if the court entertains a petition to open & court of equity.
decree, 'the time limited for an appeal does not beM Knight v. Taylor,
gin to run until the refusal to open it, the same 15. In matters of account, where they are not term continuing. barred by the Act of Limitations, courts of equity
ld. refuse to interfere, after a considerable lapse of 8. Where an appeal is prayed in open court, DO Ctime, from considerations of public policy, and from ation is necessary. the dificulty of doing entire justice, when the
(Id.) 231 original transactions have become obscure
9. A court or equity will not interfere, where the time, and the evidence may be lost.
complainant has a proper remedy at law, or where Id.
ilb.) 86 the complainant claims & set-off ot a debt arising 16. A court of equity, which never is active in under a distinct transaction, unless there is some relief against conscience or public convenience, peculiar equity calling for relief. has always refused its aid to stale demands, where
Dade v. Irwin,
(383) 308 the party has slept upon his rights for a great 10. Nor will it interfere where the set-off claimed is length of time. Nothing can call forth this court old and stale, with regard to which the complaininto activity but conscience : good faith, and rea ant has observed a long silence, and where the cor sonable diligence. When these are wanting, the rectness of the set-off is a matter of crave doubt. court is passive and does nothinx ; laches and neg
(Ib.) 308 lect are always discountenanced'; and therefore, 11. The principles laid down in the case of Tay.
lor et al. v. Savage (1 Howard, 282), examined and 6. What constitutes a notice of a trust?
(395) 313 7. An agent, employed by a trustee in the manage-
wards becomes possessed of the trust property.
(406) 318 bound by the trust, in the same manner as the
(lb.) 318 18. Where, upon the face of the title papers, the
will be deemed to have constructive notice there-
purchase, and for which it is then held for their
(619) 402 common benefit.
covenant of warranty, is not entitled to protection
(IL.) 402 | in a court of equity as a purchaser for a valuable
11. A warranty, either lineal or collaterial, is no
(lb.) 402 | bar to an heir who does not claim the property to
(b) 402 1 19
12. Whether a bill in equity is open to the objec-
(lb.) 402 taken by a party to the bill only by demurrer, or
14. Lapse of time is no bar to a subsisting trust
(lb.) 402 in real property. The bar does not begin to run
(lb) 402 period less than twenty years will not bar the cestui
15. W bere exceptions are taken to a master's re-
| port, it is not necessary for the court formally to
(833) 622 16. There is no principle of the common law which
decisions, whether in a case at law or in equity. A
(lb.) 622 final decree in chancery is as conclusive as a judg-
18. In case of controversy, a court of a equity is
(lb.) 622 the proper tribunal to prevent an injurious act by
Carrol v. Safford,
pleted in the mode pointed out by the laws of
(lb.) 622 Louisiana, regulating those corporations.
Black v. Zacharie,
1 of the State where the corporations exist do not pro-
(lb.) 622 hibit the assignment of equitable interests in stock.