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the 25th December, 1873, determinable by either lessor or lessee at the expiration of the first seven or fourteen years, and she held an undertaking in writing from the lessors that if she could obtain a responsible and respectable tenant for the house at the rent of one hundred guineas per annum, they would accept a surrender of the plaintiff's lease, and grant to the new tenant a lease for twenty-one years, determinable by the lessee only at the end of seven or fourteen years. On the 220 February, 1877, the defendant had an interview with the plaintiff's agent respecting the house, and on the following day the defendant wrote to the agent a letter in the following terms:
“ With reference to our interview last evening, I am willing to take 43, Holland-road” (meaning 43, Elshamroad) at the rent of 105l. per annum for twenty-one years, determinable at my option at seven or fourteen years, on all usual covenants and provisoes, provided the same be put into ornamental and substantial repair as arranged, and to pay 751. for the fixtures and fittings mentioned in the schedule you left with me. Rent to run from the 24th March. Possession to be given on the 14th March next. I shall feel obliged by a definite reply at once, as I have other offers."
The defendant also gave the names of two referees. On the 24th February the plaintiff's agent wrote and sent to the defendant a letter as follows:
“On behalf of Mrs. Hampshire I accept the terms contained in your letter of yesterday, subject to references being approved by the landlord, which I am quite convinced in your case is simply a matter of form."
The lessors were satisfied with the defendant's references, but the defendant subsequently refused to accept the lease, and thereupon the present action was brought. The material defense was that the new lease proposed to be granted to the defendant contained a covenant on the part of the lessee " that he would not, without the previous cousent of the lessors, assign, uuderlet, or part with the possession of the said premises, but such consent not to be withheld to a respectable and responsible tenant, and that he would not, without the consent of the lessors, put up thereon any bill for letting apartments," which was alleged not to be a usual covenant.
Chilly, Q. C., and Creed, for plaintiff.
JESSEL, M. R. There are various objections to the contention of the plaintiff, but the chief objection, to which alone I intend to refer, arose on the defendant's agreement to take a lease of the house “on all usual covenants and provisoes." Now, the lease tendered by the lessors contains a covenant on the part of the lessee tbat he would not, without the lessors' consent, "assign, underlet, or part with the premises; but such consent not to be withheld to a respectable and responsible tenant;" and further, that he would not, without their consent, put up thereon any bill for letting apartments. That is clearly a very special and very unusual covenant, but it is said that it is less extensive than a general covenant not to assign at all, and that if no objection can be made to an unrestricted covenant against assignment, none can be made to a covenant iu this restricted form. I think that reasoning is sound, and shall, therefore, consider whether an unrestricted covenant not to assign is or is not a usual covenant. I am of opinion that it is not. This was decided by Lord Thurlow in Henderson v. Hay,
sup., by Lord Eldon in Church v. Brown, sup., and more recently by the Court of Appeal in Hodgkinson v. Crowe, L. Rep., 10 Ch. 622; 33 L. T. Rep. (N. S.) 388, and by Bacon, V.C., in the same case, L. Rep., 19 Eq. 593; 33 L. T. Rep. (N. S.) 122, so that it caunot now be fairly disputed. It is true that a contrary decision of Romilly was cited. - Haines v. Burnett, sup. but that case appears to me to be opposed both to principle and authority, and it must now be treated as distinctly overruled by Hodgkinson v. Crowe. In Haines v. Burnett, Lord Romilly, without any special provision haying been made in the contract to that effect, held that a covenant should be inserted making the lease determinable on the bankruptcy of the lessee or on his making any arrangement for the benefit of his creditors. That was, in fact, notbing less than a variation of the contract. I cannot see any reason for holding such a covenant to be usual, and it is rather ditficult, in looking at the case, to understand how it was decided. Lord Romilly seems to have thought that, in considering general covenants and all such other covenants as are usually inserted in leases of property of a similar description, some regard might be had to the peculiar nature and tenure of the property; but I cannot find any evidence on that point mentioned in the report, and it would seem that the judge, from his view of the nature of the property, inserted the clause. But, when we look at the reasoning of Bacon, V. C., in Hodgkinson v. Crowe, I think it is conclusive against any judge being allowed to say from his own view that such a covenant ought to be introduced. The Court of Appeal went further, and held that, under an agreement for a lease to contain "all usual and customary mining clauses," the landlord was not entitled to have inserted in the lease a proviso for re-entry except on non-payment of rent. Usual covenauts may vary in different generations. The law declares what are usual covenants according to the then kuowledge of mankind. Lord Eldon, in Church v, Brown, puts it thus: “Before the case of Henderson v. Hay, therefore, upon an agreement to grant a lease with nothing more than the proper covenants, I should have said they were to be such covenants as were just as well known in such leases as the usual covenants under an agreement to convey an estate." Now, what is well known at one time may not be well known at another time, so that you cannot say that usual covenants never change. I have, therefore, looked at the last edition of Davidson's Precedents in Couveyancing (3d ed., vol. 5, pp. 48, 49), to see whether the usage is said to have changed. He says: “ The result of the authorities appears to be that in a case where the agreement is silent as to the particular covenants to be inserted in the lease, and provides merely for the lease containing usual covenants,' or, which is the same thing, is an open agreement without any reference to the covenants, and there are no special circumstances justifying the introduction of other covenants, the following are the only ones which either party can insist upon, namely, covenants by the lessee: 1, to pay rent; 2, to pay taxes, except such as are expressly payable by the landlord ; 3, to keep and deliver up the premises in repair; and, 4, to allow the lessor to re-enter and view the state of repair, and the usual qualified covenant by the lessor for quiet enjoyment by the lessee.” When he refers to “spec al circumstances,” he means peculiar to a particular trade, as, for example, in leases of publichouses, where the brewers have their own forms of leases, the usual covenants would mean the covenants
always inserted in the leases of certain brewers. There time to time sought information as to his brother's is no mention of any other “usual covenauts,' and as standing financially, and with an honest belief that he notbing in this case has been lost for want of industry (Agnew) was solvent and could pay his debts, so repre. on the part of the counsel who have argued it, I am sented his circumstances to Williams, the plaintiff justified in saying that there is nothing in any text cannot recover, even if such representations turned book or book of precedents to show that a covenant out afterward to be incorrect. Answer. This we not to assign is a usual covenant. I am, therefore, of affirm, if by “80 represented his circumstances to opinion that it is not a usual covenant, and the plain-Williams” we are to understand, giving or communitiff's case fails. The action must be dismissed with cating information to plaintiff as information thus costs.
obtained merely; but the case would be different if he
made the representations and statements as actual LIABILITY FOR REPRESENTATIONS AS TO facts, as of his own knowledge. CREDIT OF ANOTHER.
The judgment below was for plaintiff, and defendant
took a writ of error. SUPREME COURT OF PENNSYLVANIA JANUARY S. B. Wilson and Frank Wilson, for plaintiff in 7, 1878.
John J. Wickham, for defendant in error.
STERRETT, J. In answer to the fourth point the Plaintiff, having money to loan, asked defendant if he learned judge said to the jury that, if the defendant wished to borrow it. Defendant said no, but his brother
made the alleged statements and representations, it did. Plaintiff asked if the brother was solvent, and defendant, honestly believing him to be so, said he was. was unnecessary to show that he “ actually knew them Plaintiff relying on this made the loan. Hell, that defendant was not liable for a loss thereof through the
to be false.” If he made them recklessly, without brother's insolvency.
sufficient reason for kuowing and believing them to be
true, or did he know that they were false? We are of on the part of John C. Duff, the defendant below,
opinion that the question was submitted to the jury whereby Robert Williams, the plaintiff below, was in
in a manner that was calculated to lead them into an duced to loan money to defendant's insolvent brother,
inquiry that was irrelevant and prejudicial to the deAgnew Duff.
fendant, and for this reason the first assignment of Plaintiff, having a sum of money to loan, asked
error should be sustained. defendant if he wished to borrow it. He said no, but
The defendant was entitled to an unqualified affirmhe thought his brother would like some. Plaintiff
ance of his fifth point, in which the court was asked him if his brother was good for the amount and
requested to say: “ If the jury believe that John C. he said he was. At that time defendant believed his
Duff from time to time sought information as to his brother to be solvent and made the representation in
brother's standing financially, and with an honest good faith. Thereafter plaintiff called upon the
belief that he was solvent and could pay his debts, so brother and lent him the money, taking his note
represented his condition to Williams, the plaintiff therefor. A few months thereafter and before the
cannot recover, eren if such representations turned note was due, the brother made a general assign
out afterward to be incorrect." This was putting ment for the benefit of creditors, and plaintiff's note
the defense on its true ground - that of good faith. was not paid in full. lle then brought this action
While the learned judge affirmed this proposition, be claiming that he had made the loan on the faith of
did so with a qualification which greatly weakened its defendant's representations.
force, by saying, “ if by the words .so represented his At the trial defendant among other points presented
circumstances to Williams,' we are to understand these:
giving or communicating information to the plaintiff Fourth. To enable the plaintiff to recover, the jury
as information thus obtained merely; but the case must believe that John C. Duff represented his brother
would be different if he made the representations as Agnew to be in good and solvent circumstances at the actual facts, as of his own knowledge." The jury time the plaintiff applied to him; that the plaintiff,
would likely understand from this that the defendant owing to his relations with the defendant, had a right
was bound to inform the plaintiff that he had made to rely upon such representation; that such represen- inquiry as to his brother's standing, and give him in tation was false; that John C. Duff knew and be- detail the information he had thus obtained, so that lieved, or had reason to know or believe, it to be false, he might have the data from which to draw his own and made such representation recklessly, without any conclusions. Of course there could have been no just reason for making the same, and with the design objection to this mode of imparting information to and intent fraudulently and dishonestly to enable his the plaintiff, but it is not the only way in which it brother to obtain the plaintiff's money. Ansurer. It could be houestly done. He could with equally good was not necessary that the defendant, if he made the faith state, as conclusions of fact, the inferences statements and representations, actually knew them to which he drew from the information he had obtained. be false. If he made them recklessly, without suffi- If, as the result of inquiry, he came to the conclusion cient reason for knowing and believing them to be that his brother's financial standing was as good as his true, and with the intent to enable his brother Agnew
own, what would be the impropriety of honestly thereby to obtain the plaintiff's money, and the repre- stating this to the plaintiff as a fact, instead of comsentations afterward turned out to be false, and municating to bim the items of information upon damage resulted, it would be sufficient to create the which he had formed his judgment and belief? liability of the defendant, without it appearing that Taking into consideration all that was said and done, the defendant knew or had reason to know or believe it must, after all, resolve itself into a question of siuthem to be false.
cerity and good faith. The principles involved are so Fifth. If the jury believe that John ('. Duff from clearly stated in Bokee v. Walker, supra; Boyd's Exc'rs
v. Browne, Barr, 310; Huber v. Wilson, 11 Harris,
have against defendant under its contract with him, 178; Rheem v. The Naugatuck Wheel Co., 9 Casey, 358; and the action was not maintainable. Judgment beGraham v. Hollinger, 10 Wright, 53; and Dilworth v. low reversed. Clark v. Dickinson. Opinion per C'uBradner et al., decided at the present term, 4 Weekly riam. Miller, J., dissented; Folger, J., not voting. Notes, 505, that it is unnecessary to pursue the subject [Decided May 28, 1878.] any further.
EVIDENCE. Judgment reversed and a venire facius de novo awarded.
Declarations of vendor after sale not admissible against
vendee.-In an action to recover the possession of COURT OF APPEALS ABSTRACT.
property which had been sold by one Lave to plain
tiffs, and which was thereafter seized by defendant, as APPEAL.
sheriff, upon an execution against Lane, on the ground 1. To Court of Appeals : order sustaining demurrer
that the transfer to plaintiffs was fraudulent, declaranot appealable.--An order sustaining a demurrer to a
tions made by Lane after the action was commenced complaint and dismissing it with costs, unless the
to a third person that he owned the property, held, inplaintiff amends and pays costs of demurrer within a
admissible against plaintiffs. Judgment below respecified time, cannot be reviewed in this court until
versed. Burnham v. Brennan. Opiniou by Earl, J. after final judgment has been entered for the defend
[Decided June 4, 1878.) ant dismissing the complaint. Appeal dismissed. Elwell v. Johnson. Opinion by Andrews, J.
FRAUDULENT CONVEYANCE. 2. Judgment for costs not u final one.-A judgment Assignee may maintain action to set aside frandulent for costs only is not a final judgment on the demurrer conveyance without judgment.-An assignee in bankso as to give jurisdiction to this court. Ib.
ruptoy may maintain an action to set aside a convey[Decided June 4, 1878.]
ance as fraudulent without the necessity of a previous ASSAULT AND BATTERY.
judgment and execution against the debtor who made 1. Justification: resisting trespass upon land: title :
it, as is required in the case of an iudividual creditor, evidence.-In an action for an assault and battery it
and although none of the creditors have obtained a appeared that plaintiff and defendant were the own
specific lien or have a standing in court to attack the ers of adjoining farms, between which a highway ran.
couveyance. Judgment below affirmed. Southard v. Plaintiff bad for several years cut the grass on the
Benner. Opinion by Allen, J. side of the highway next to his farm. At the time of
2. Chattel mor tgage : on merchandise left in possession
of mortgagor fraudulent, — Advances were made by the affray he had cut the grass and left it to dry. In his absence defendant, who claimed title to the entire
mortgagees to a mortgagor in a chattel mortgage to enhighway, began to gather the grass, when plaintiff
able the mortgagor to carry on his business as a dealer
iu lumber. The entire stock of lumber was covered came and attempted to prevent him. In resisting such attempt the assault was committed. Held, that
by the mortgage to secure the advances, and an agent evidence on behalf of defendant that the title to
of the mortgagees appointed to supervise the business
and watch their interests. Sales were continued by the highway was in him was admissible in justifica
the mortgagor as before and the avails used by him for tion of the assault. Judgment below reversed. Bliss
his support and as his wants and business calls dev. Johnson. Opinion by Andrews, J.
mauded. This was continued for a full year, and only 2. Owner of land out of possession may take possession peaceably and then resist atlempt to retake. The
such moneys as the mortgagor could spare were applied true owner of land wrongfully held out of possession
toward paying the advances. Held, that the mort
gage was fraudulent in law as to creditors and void. may watch his opportunity and, if he can regain pos
Ib. session peaceably, may maintain it and lawfully resist
3. What is fraudulent arran gement.- An arrangean attempt by the former occupant to retake posses
meut made contemporaneously with a mortgage ou mer sion; nor will he be liable to be proceeded against
chandise whereby the mortgagor is to retain possesunder the statute of forcible entry and detaiuer. Ib.
sion of the mortgaged property and deal with it as his [Decided May 21, 1878.)
own, and using the avails, would be couclusive eviCONTRACT.
dence of fraud in fact, and such an agreement may be Of sale and purchase : vendor cannot enforce against proved by parol. Ib. assignee of vendee.-Plaintiffs by contract in writing [Decided February 5, 1878 ) agreed to sell to the firm of Pierce & Co., and Pierce &
NATIONAL BANK. Co. agreed to buy a quantity of oil at a specified price. Pierce & Co. for value sold and assigned the contract to Mortgage to: note of married woman binding sepadefendant, and plaintiffs received notice of the trans- rate estute is not.- Defendant, a married woman, fer. The price of oil having fallen, the firm named indorsed a note in the following form: “I hereby made an agreement whereby it in consideration of a charge my separate and personal estate for the payrelease of all liability agreed to pay plaintiff's $2,500, ment of the within note." This note was discounted “and also to give them all over this sum that shall be by a national bauk. lIeld, that this indorsement did realized from W. S. Dickinson (defendant), on our not become a mortgage on defendant's separate estate contracts with him." Plaintiffs having thereafter ten- so as to preclude the bank from taking it under the dered the oil to defendant brought action against him National Banking Act. Such an indorsement creates for the difference between the price at which it was no specific lien on any property, but only creates sold and the market price at the time of tender, less against the one making it a liability which can be enthe $2,500 paid by the firm. Held, that there was no forced as if she was unmarried. Judgment below privity between plaintiffs and defendant, and the con- affirmed. Third National Bank v. Blake. Opinion by tract between the firm and plaintiffs did not operate Earl, J. to transfer to them any claim which the firm might [Decided April 9, 1878.]
STATUTE OF LIMITATIONS.
meaning of the statute relating to chattel mortgages, 1. Does not run as to reriral of suit : action against when it is delivered to, and received and kept by, the sheriff'.- An action was commenced within the statu- proper officer, for the purpose of notice mentioned in tory term against a sheriff to recover damages for the the statute. Sup. Ct., Minnesota, May 22, 1878. conversion of personal property of the plaintiff therein Gorham v. Summers (N. W. L. Rep.). taken by bim under attachment. Pending the suit CORPORATION: SEWING MACHINE COMPANY MAY the plaintiff died, and E. was qualified as her execu
TAKE NOTES OF THIRD PEKSONS IN PAYMENT FOR MAtrix. More than eighteen months thereafter E. served
CHINES. – When a note taken in payment of a sewing an affidavit and notice of motion for leave to file a
machine by a person who had purchased the machine supplemental complaint reviving the action as execu
from the company, and was not their agent, had been trix. The motion was granited and a supplemental
turned over to the company before maturity, to be complaint served. Held, that the service of the sup
applied in payment of an iudebtedness from the payee plemental complaint was the continuance of an old
to the company, and without notice of any defense, action and not the commencemeut of a new one, aud
it can be collected by the company, even if there was the statute of limitation (Laws 1871, ch. 733), which
a failure of consideration, if there was no fraud in the provides that actious agaiust sheriffs for acts such as
execution of the note. A sewing machine company the one in question shall be commenced within one
may receive notes of third parties in payment of an year, did not bar the action. Order of General Term
indebtedness, although it cannot do a general banking reversed and judgment on verdict ordered. Evans v.
business or discount commercial paper. Appellate Cleveland. Opinion by Earl, J.
Ct., Illinois, February, 1878. Taylor v. Thompson. 2. Whatever the rule may be on actions in equity, in a legal action commenced before it was barred by any
CORPORATION: STOCKHOLDER'S SUBSCRIPTION: REstatute of limitations no mere lapse of time will
LEASE FROM LIABILITY.- Where a party subscribed a absolutely defeat an application for its continuance in
“ prospectus" of a railroad company for shares of
capital stock, contemplating an organization only after the name of the representative of a deceased party, and no statute of limitations will bar a recovery. Ib.
securing subscriptions for one hundred and fifty [Decided February 12, 1878. Reported below, 12 Hun,
thousand dollars, a subsequent organization effected 140.]
without his consent, when subscriptions for only one
bundred and thirty thousand dollars had been SURROGATE. Ilas not jurisdiction to make legacies charge on real
obtained, operates to release him from further liability.
Sup. Ct., Cal., May 13, 1878. Sunta Cruz R. R. Co. v. estale.- When, in good faith, an executor resists the
Schwartz (Pac. C. L. J.). charging of a legacy upon the residuary real estate in his hands, and shows that there exists a real question
CRIMINAL LAW: FORGERY: PUTTING FORGED DEED of fact or of law in his refusal to allow it, the surro
ON RECORD IS. - Putting a forged deed of real estate on gate has no jurisdiction to determine the matter. Laws record is in itself an act of uttering and publishing. of 1870, chap. 339, § 11, does not affect this rule.
Sup. Ct., Dist. Col. United States v. Brooks (Wash. An intimation in Harris v. Ely, 25 N. Y. 138, 142,
L. Rep.). that a surrogate may try the validity of a release ESTOPPEL: WHAT ESSENTIAL TO: SILENCE ALONE declared obiter. Decree below reversed. Bevan v. NOT.- A declaration, to be effective as an estoppel, Cooper. Opinion by Folger, J.
must be made to him who acts upon it, and who, after [Decided January 29, 1878. ]
the exercise of diligence, has reason to rely upon it as WILL.
true, and is thereby induced to do what he otherwise Construction of: legacy, when not chargeable on real
would not have done. Silence alone is not estoppel, estate.-Where a testator, possessed of both real and there must be encouragement. Philadelphia Com. Pl., personal estate, gave legacies to strangers or those
April 6, 1878. Mecouch v. Loughery. remotely related to him, and set apart the residuum of EVIDENCE: EXPERT NOT ALLOWABLE ON QUESTION his estate definitely for the support of his widow and OF NEGLIGENCE WITHIN GENERAL EXPERIENCE. children, describing the real and personal property When the facts from whicb negligence is sought to be distinctly; and where it did not appear that he contem- inferred are within the experience of all men of complated an insufficiency of personal property to pay the mon education, the opinions of experts are inadmissilegacies; and there was an insufficiency caused by the ble. It is for the jury to draw the inference of neglideath of the testator and by his debts, and where gence. Sup. Ct., California, April 20, 1878. Shafter v. there had been a devise of specific real estate as well Evans (Pac. Coast L. J.). as legacies, held, that there was no blending of the NEGOTIABLE INSTRUMENT: WHAT IS:
PLACE OF real estate with the personal into one mass, and the
PAYMENT LEFT BLANK: USAGE.-C. made and signed intention would not be imputed to the testator of
two notes on printed forms, which were left blauk as charging the legacies upon the real estate, and they to the bank at which they were to be payable, and would not be so charged. Decree below reversed.
procured G. to sign his name on the back thereof, and Bevan y. Cooper. Opinion by Folger, J.
these notes he delivered to persons under whom the [Decided January 29, 1878.)
plaintiffs claimed, as collateral security, under an
agreement with such persons that he should deliver to NOTES OF RECENT DECISIONS.
them indorsed notes. It being in proof that C. and CHATTEL MORTGAGE :
WITH G. regarded these notes as negotiable, and that there PROPER OFFICER SUFFICIENT COMPLIANCE WITH STAT. was a usage in R., where C. and G. lived, to leave UTE.— The word “filed," as applied to a chattel mort- notes blank as to the bank at which they were paygage in sections 1, 2 and 3, ch. 39, Gen. Stat., does not able, and for the holder to fill such blank, it was held, include the iudorsing and indexing prescribed by sec- that said notes were to be treated as negotiable, and tion 2, but a chattel mortgage is filed, within the G., not having been duly notified of their dishonor,
those in possession is upon the purchaser. Ib. Decided January 7, 1878.
was discharged. Sup. Ct. App., Virginia, March, 1878. Woodward v. Gunn (Va. L. J.).
NEGOTIABLE INSTRUMENT : EFFECT OF SUBSEQUENT INDORSEMENT.-Several promissory notes were executed by one H. to G., who assigned the same by indorsement to F. F. afterward assigned them by indorsement to G., who assigned them to plaintiff. Held, that F.'s liability as between himself and G. being extinguished, the plaintiff, as G.'s indorsee, could not recover of F. U. S. Circ., Ind., April, 1878. Howe Mach. Co. v. Hadden (Cent. L. J.)
Computation of time : no tim stated means reasonable time. –Where a contract provides for the future performance of an act without specifying any time, the legal presumption is that it shall be reasonable time; and the jury are to say what is reasonable time. Shepler v. Scott. Decided January 7, 1878.
RECENT AMERICAN DECISIONS.
Cannot be eradicated by taking new security.--The taint of usury cannot be eradicated by the substitution of one security or one set of securities for another so long as the original debt survives. Miller v. Irwin. Decided January 9, 1878.
SUPREME COURT OF PENNSYLVANIA.
RECENT BANKRUPTCY DECISIONS. Want of tille to premises insured : when no defense.
ATTACHMENT. Want of title of the insured is no defense to an action on a policy of fire insurance, if the insured en
1. Levy on perishable goods: sale of conversion.-A
creditor began suit in the Supreme Court of New tered upon his land and took his insurance in good faith, under a reasonable and honest belief that he had
York against one Spaulding, and obtained from the
court a warrant of attachment against the property title, and if he did not withhold the knowledge of a
of said Spaulding, as a non-resident, under which dispute about his title in bad faith. Monroe Co. Mut. Ins. Co. v. Robinson (W. Not. Cas.). Decided April
warrant tbe sheriff levied upon certain goods of 4, 1878.
Spaulding in New York; three days after the levy an
involuntary petition in bankruptcy was filed against NEGOTIABLE INSTRUMENT.
Spaulding, in Massachusetts; thereafter, but before Township warrants are not: warrants on township any adjudication, and before the election of any treasurer: demand.-Warrants upon a township treasu- assignee in the bankruptcy proceedings, and before rer issued to a contractor or bearer by commissioners the sheriff had notice of such proceedings, an order appointed to view and open a State road, are not ne- for the sale of the goods, as perishable, was obtained gotiable instruments, entitling the holder to bring from the State court, and the sheriff sold the goods suit upon them in his own name. When such war- under the said order. Held, that the sheriff was rants are to be paid out of a special tax, a demand guilty of conversion in selling the goods, and was liable on the township treasurer is necessary before a suit in damages to the assiguee in bankruptcy subsequently can be maintained on the warrants. Township of East appointed. U. S. Dist. Ct., S. D. New York. Long Union v. Ryan (W. Not. Cas.). Decided March 20, v. Conner, 17 Nat. Bankr. Reg. 540. 1878.
2. Title of assignee relates back to filing petition.--MASTER AND SERVANT.
Where goods are held by a sheriff under an attachment Negligence : mining operations : responsibility of mas
under mesne process of less than four months' standing
at the time of the filing of a petition in bankruptcy, ter for injuries to a servant by an accident caused by negligence of a fellow-servant: who are fellou-servants.- the title of the assignee in bankruptcy subsequently
appointed relates to the date of the filing of the petiIn order to bring a case within the rule that a master
tion, and dissolves the attachment and invalidates all is not responsible for an injury happening to a servant
proceedings under it subsequent to the filing of the through the negligence of a fellow-servant, it is not
petition, even though such proceedings be taken withnecessary that the injured and the negligent servants
out notice of the bankruptcy. Ib. should be engaged in the same particular work, it is
3. Order of State court no protection. An order by sufficient if the general scope of their employment be
the State court, in the attachment suit, for the sale of the same. A "driver boss" was killed in a coal mine by an explosion caused by the negligence (if any neg
the goods attached as perishable, is no protection to
the sheriff, when such order is made after the filing of lect there was) of the “mining boss," who had given
the petition in bankruptcy, though before adjudicaan order to reduce the supply of fresh air. Held, that
tion. Ib. the two are fellow-servants within the meaning of the
4. Measure of damages : true market value: evidence.rule, and that the owner of the mine was not respon
The sheriff is liable to the assignee in bankruptcy for sible. Lehigh Valley Coal Co. v. Jones (W. Not. Cas.).
the true market value of the property on the day of Decided March 15, 1878.
the sale, and not merely for the amount realized at the sale. In order to determine what was the market
value, the jury can consider fair sales made at or about 1. Fraudulent lease : relation of landlord and tenant
the time, or within a reasonable time subsequently. does not exist under.-Where a lease is shown to be
The amount received at the sheriff's sale furnishes fraudulent and void, the relation between landlord
some evidence of value; but the jury are to consider and tenant under it is overthrown. Bidwell v. Evans.
that this may have been a forced sale; where no great 2. Caveat emptor: inquiry as to right of possessor of length of time or great amount of advertising or real estate.-The duty of inquiry as to the right of
notice to the general public was given, the jury are to