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determine whether this was a fair criterion of the possibility that C. might, against all his laches and actual market value. The market value of the prop- against all his acts of acquiescence, prove the fraud erty, rather than any injury over and above the mar- alleged, substantial justice does not require that the ket value which the assignee or the original owner creditors whose rights have becomie fixed through his might have suffered, is the measure of damages. Ib. voluntary acts should be subjected to the delay and
5. Defense: that assignee has obtained judgment expense incident to such an investigation. U. S. Dist. against attachment creditor none to sheriff.-The fact Ct., s. D. New York. In re Court, 17 Nat. Bankr. that the assignee in bankruptcy has already obtained Reg. 555. judgment against the attachment creditor in a suit for
PRIORITY. damages for the same conversion, and has issued exe
When party is not entitled to election of remedy: articution on the judgment, is no defense to a suit against the sheriff; the judgment being still unsatisfied, an
cles for manufacture in bankrupl's possession.- Pe
titioners had, prior to the commencement of the prounsatisfied judgment against one or two joint tort feasors is no bar to an action against the other. Ib.
ceedings, delivered to the bankrupt certain wool
which he was to manufacture into cloth for them. The COMPOSITION.
assignec, under the direction of the court, completed 1. Practice: examination of debtor: priority on.–At
the manufacture of the cloth and sold it, Petitioners an adjourned composition meeting, after waiting a
demanded of the assignee the unfiuished cloth and reasonable length of time, the register allowed a cred
yarn and wool belonging to them, offering to pay for itor to continue his examination of the debtor, which
the labor aud materials expended thereon. Upou had been taken at regularly adjourned meetings. Sub
refusal they brought suit against the assiguee in trover sequently the attorney for another creditor appeared
and recovered judgment for their damages with interand asked permission to continue an examination
est and costs. The recovery was afterward limited which had previously been closed, and that all the tes
to the amount realized by the assignee on the sale, less timony taken at such meeting be stricken ont, which
the cost of the labor and materials put into the goods was denied. It appearing that his power of attorney had
by the bankrupt and the assignee. The assets being been revoked, he then asked permission to go on with
insufficient to pay this judgment in full after payment the examination in behalf of another creditor, which
of the fees, costs and expenses of the assignee incurred was also denied. Held, that the register was right in
in the course of the proceedings and in his administrarefusing to suspend the examination then pending. tion of the estate, petitioners ask that the judgment No other creditor was entitled to priority at that
be paid in full or so far as the assets will go toward time. U. S. Dist. Ct., E. D. New York. In re Tifft,
its payment. Held, that petitioners, having elected to 17 Nat. Bankr. Reg. 550.
sue in trover for damages, waived any claim they 2. Limit of examination.-The attorney asked per
might have had to the moneys in the assignee's hauds mission to examine the bankrupt as to the circum
as their own moneys, and were not entitled to priority stances under which the revocation of his power of
over those expenses which are expressly preferred by attorney had been obtained, which was refused. Held,
the statute. U. S. Dist. Ct., S. D. New York. In re no error. The register refused to suspeud the exam
Oberhoffer, 17 Nat. Bankr. Reg. 546. ination then pending until the questions certified by
PROVISIONAL WARRANT. him could be decided. Held, no error. Ib.
When it will be issued. - A provisional warrant EXEMPTION.
issued in voluntary proceedings upon papers regular What property is not exempt: partnership property. - on their face, and upon proof by affidavit of facts Within a month prior to the commencement of the showing that it was very necessary for the protection proceedings in bankruptcy, and while the firm was of the estate, will not be vacated where such facts are iusolvent, a large amount of the partnership property not disproved and it appears that the purpose of the was sold and the proceeds divided between the part- bankrupts in making the motion is to deprive the ners, and the firm then offered to settle with their marshal of his fees, and this whether it was one which creditors at fifty per cent. One of the partners, upon the court had power to issue or not. U. S. Dist. Ct., receiving his share of the proceeds of said sale, imme- S. D. New York. In rc Clark, 17 Nat. Baukr. Reg. 554. diately purchased property which was exempt under the State statute. Held, that under the circumstances such property was not exempt, but must be regarded
NEW BOOKS AND NEW EDITIONS.
INDIANA REPORTS, VOLUME LVII.
Reports of cases argued and determined in the Supreme
Court of Judicature of the State of Indiana, with tables When proceedings will not be vacated for: estoppel.- of the cases reported, and causes cited, and an inder. By C. joined in a voluntary petition with his partners and
Augustus N. Martin, Official Reporter, Volume LVII.
Containing cases decided at the May term, 1877, not participated actively in the proceedings. After the reported in Vol. LVI, and cases decided at the Novemlapse of about five months he moved to set aside the
ber term, 1877. Indianapolis. John G. Doughty, 1878.
volume of join in the petition by fraudulent misrepresentations of his copartners and the attorney who prepared the p. 31: A law forbidding the sale of intoxicating petition and schedules, that the firm was not in fact liquor without a license therefor held constitutional. insolvent and that the proceedings were carried on in Dobson v. State, p. 69: One evading the letter of a the interest of his copartners for the purpose of depriv- penal law is not punishable thereunder, whatever may ing him of his property. Ileld, that upon the bare be his motive. City of Huntington y. Cheesbro, p. 74: A city ordinance forbidding peddling within the city duties, inasmuch, in some counties no “judgmentlimits without a license and prescribing a punishment book” is kept, while in others the clerks refuse to for its violation, is not in contravention of either the make up a roll except upon filing a judgment, and also State or Federal Constitution. Hart v. State, p. 103: attaching thereto a certified copy thereof. For instance, To constitute larceny the taking must be felonious at a judgment in foreclosure is granted at Special Term, the time. One spatching money from a person and the court writes at the end a direction to the clerk to retaining it without consent of such person is not enter, the clerk then makes a copy, certifies the copy, necessarily guilty of larceny. Vaughn v. Ferral, p. and amnexes both to the other papers making the roll, 182: One about to purchase a promissory note ex- but does not enter either in any book. hibited the same to the maker who said it was all right, Bouvier's Law Dictionary says that a judgment is and there was no defense to it and it would be paid. the decision or sentence of the law by a court, and Held, that the maker was estopped from setting up the old Code, section 245, defined it to be the final that the note was altered. Toun of Centreville v. determination of the rights of the parties. Woods, p. 192: A town is liable to one injured by a The idea of the average county clerk is, that a judgdefect in its streets, notwithstanding such defect was ment is something made by a court or judge, iu writcaused by a third person. Alexander v. N. W. Chr. ing, to be filed in his office. On the contrary, it is Univ., p. 466: A real estate broker, acting for both something which, having been determined by the court, vendor and vendee in the sale of property, held en- is to be reduced to writing and recorded as the judgtitled to receive compensation from both vendor and ment of the court by the clerk, the same as he records vendee. Western Un. Tel. Co. v. Ferguson, p. 495: a verdict, and how he shall enter or record it is shown While a telegraph company may refuse to transmit an by a written direction of the court. The court indiindecent message, it may not one couched in proper cates the judgment and the clerk enters it, in all cases terms on the ground that it is in furtherance of an im- when the court is called upou to decide any thing. moral purpose. Pittsb., Cinc. & St. L. Rwy. Co. v. In other cases the law fixes the judgment and the clerk Vandyne, p. 576: A railroad company may refuse to enters it. carry a person so intoxicated as to be disgusting, offen- Under the Revised Statutes I apprehend the pracsive or annoying, though he have a ticket, but may not
tice was to draw what was called the record of the refuse one slightly intoxicated. The reporting is well judgment, and, after obtaining the direction of the done, the index full, and the table of cases cited court, when necessary, the clerk signed and filed it, carefully prepared.
whereupon it stood “ entered.” 3 R. S. (6th ed ) 619, $ 10. But the old Code required the clerk to keep a
judgment-book (independent of the docket), and to COURT OF APPEALS DECISIONS.
enter all judgments therein and to annex a copy of the HE June :
Here the practice under the Revised Statutes and
the Code became mixed. No judgment-book was Bostwick v. Frankfield, Nos. 262–265, order affirmed
kept, and it having been held unnecessary for the clerk and judgment absolute for defendant on stipulation,
to sigu the judgment, he has contented himself with with costs; opinion by Miller, J.- - Department of
filing in his office the judgment (as it is erroneously Public Parks, In re application of, ordered, that the
called), which is usually handed him by the attorremittitur be amended so as to give costs to neither
ney. party in this court; no opinion. -Hatch, In re peti
The Code of Civil Procedure retains the provision tion of, No. 422, appeal dismissed, with costs to Hatch
that the clerk shall keep ($ 1236) a judgment-book'and against Bowes; opinion per Curiam. -Hebrew Be
shall enter therein all final judgments. Sections 1237, nevolent Society, In re petition of, motion denied,
1276 and 1354 provide for the manner of making up the with $10 costs; uo opinion.—Mead, In re petition of,
roll in different cases in each of which “a certified copy No. 416, order affirmed; opinion by Miller, J.- -Mer
of the judgment” is required. The only distinction bechants’ Bank of Canada v. Livingston, No. 242, judg- tween the two Codes seems to be in the word certified. ment reversed and new trial granted: opinion by
It seems, therefore, perfectly clear that the correct Earl, J.-Parker v. City of Cohoes, No. 253, order
practice is this: The clerk must keep a judgment-book affirmed and judgment absolute for respondent on and enter therein (i. e., write vut) the judgment of the stipulation, with costs; on opinion of General Term.
court. In litigated cases the decision will inform him -Roe v. Conway, No. 215, judgment reversed and
how he is to draw the judgment. In partition, forenew trial ordered; opinion by Miller, J.--Wood
closure and the like cases, the judgment is determined worth v. Payne, Nos. 131-146, judgment affirmed; opin- by the formal direction of the court to the clerk to ion by Miller, J.
enter (iu the judgment-book) that form of a judgment
which is usually prepared and handed to the court, CORRESPONDENCE.
while upon jury trials, defaults, etc., the judgment is to be entered in the book by the clerk as each case
may require. Then under the new Code the clerk ENTERING JUDGMENTS.
must make a certified copy of the judgment so entered To the Editor of the Albany Law Journal :
in the book, and attach it to the pleadings, etc., and
thus make up the “roll." SIR– Since the enactment of the Code of Civil Pro
In practice, the attorney for the successful party cedure there has been considerable discussion as to the should draft a judgment (in proper cases he obtains correct practice in making up a judgment roll and en- the directiou of the court to enter). He then pretering a judgment. In some cases the county clerks
seuts it to the clerk, who copies it into the judgmenthave, it seems to me, entirely misapprehended their
book. The judgment thus becomes “eutered." Then
THE following opinions were handed down Friday, judgment (as entered in the book) to the roll.
the clerk can affix the draft to the roll, certify it to be tars fixed in the wall adjoining the consulting-room by a copy, and the “roll” is complete. The great variety their noise caused him grave inconvenience and annoyof practice and views upon this subject has induced ance, and commenced an action to restrain the coume to jot down these notes with the hope that they tinuance of the nuisance. The fact of the nuisance may aid in establishing a uniformity of practice con- was scarcely disputed, but the defendant's contention sistent with the law.
was that he had acquired, first, a prescriptive right to Yours, etc.,
commit the nuisance, and secondly, under section 2 of PORT RICHMOND, S. I., June 24, 1878.
the Prescription Act, a right by user for more than twenty years. The Master of the Rolls was of opinion
that this was an easement incapable of interruption NOTES.
within the authority of Webb v. Bird, 13 C. B. (N. B.)
841, and one of which he could not presume a grant, N the Court of Appeals on the 20th inst. Hon. Henry and, consequently, that the defendants had not ac
the late Hon. Samuel A. Foote, which was the occasion
the new room there had been no nuisance; and how of remarks by members of the bench and bar present.
could the plaintiff before that time have prevented the waves of sound from passing over the garden? He
could not enter on the defendant's premises, and so Mr. Justice Miller of the United States Supreme commit a trespass, to abate the nuisance, and there Court has been quite ill recently, and has undergone a
was no other way in which the acquisition of the right painful surgical operation. He is now better and in a
could have been prevented. He also thought that the fair way to recovery.
easement of the passage of sound was not within the
second section of the Presuription Act; it was not an In reply to a question as to whether a failure on the easement which would“ be enjoyed or derived upou, part of a justice of the peace to give a bond in compli
over, or from the land” of another. It was very ance with the act of the last Legislature, vacates his much like the above case, where a person claimed a office, says that is his opinion that no such conse
right to the uninterrupted enjoyment of the currents quence would follow such omission; but he says, “it of air in motion to his windmill. The plaintiff was may be argued, and is perhaps a fair construction of entitled to a perpetual injunction. the act, that official duties shall not be performed by a justice in office unless he shall within sixty days give the bond required. At any rate it is a statutory duty
A correspondent of the Pall Mall Guzette writing imposed upon justices for the benefit of the public, from Valencia, says: “There still survives in this city and ought to be complied with by those oflicers."
a very ancient tribunal which has exercised jurisdiction without a break for nearly a thousand years.
Just outside the city, extending eastward to the MediThe attorney-general of this State, in reply to an in- terranean and southward to the Lake of Albufera, is quiry from the acting superintendent of the banking the plain known as the Huerta de Valencia. This department, says: “ In answer to your communication plain, which covers nearly ten square miles, was at one of this date relative to the construction to be given to time covered by the sea, but since the time of the Arabs the 2d section of chapter 347 of the Laws of 1878, it has been reclaimed, and has been converted by amending the Savings Bank Law, I have the honor to means of irrigation into one of the most fertile spots say that the section probably fails to express what was in the peninsula. The Huerta is traversed by eight intended by the person who drew it. It would seem maiu canals (acequias), which have an infinite number to have been intended to limit the aggregate deposits of small branches; and by this means the land is proby any individual in a savings bank to three thousand vided with an abundant supply of water. There are dollars; but that is not the necessary construction of appointed times for the supply of water to each disthe language used. It bears quite as properly the con- trict, the signal for opening and closing the dykes struction that any single deposit shall not exceed three being given by the great bell in the cathedral tower of thousand dollars. The language is so indefinite that, Valencia. Agents are appointed to see that these in my opinion, you will be justified in holding that arrangements are strictly carried out, and any infracaggregate deposits in excess of three thousand dollars tion of them is brought before the tribunal to which I and not in excess of the limitation prescribed by sec- referred above. This tribunal, known as the “Trition 23 of the act of 1875 (ch. 371) will not be deemed bunal of the Waters," is composed of eight members, violations of this section. The clear and precise who are elected by the eight divisions of the Huerta, language of the act of 1875 restricts the 'aggregate and holds its sittings at noon every Thursday under amount of deposits' to the sum mentioned in that act. the porch of Valencia Cathedral, the chapter of which If the Legislature by the section in question intended is bound to provide it with a bench. All disputes to restrict the aggregate deposits to three thousand which may have arisen during the past week are laid dollars, it is fair to presume similarly accurate lan- before the tribunal by word of mouth, neither the guage would have been employed."
complainant nor the defendant being allowed to employ counsel, and so great is the respect felt for its
decisions, that since its institution by the Arabs in A novel kind of easement was claimed in the English 920, no instance has been recorded in which the decase of Sturges v. Bridgman, before the Master of feated party has appealed from it to the ordinary juristhe Rolls on the 3d inst. The plaintiff, a physician, on diction of the country. I may add that the Huerta the erection of a consulting-room in his garden found contains sixty-three villages and hamlets, with a total that the use by the defendant of two pestles and mor- population of nearly eighty thousand.
report of Antwerp Conference; notice of... 496
raphy, local associations, abuses, law reform, and
husband and wife ; liability for torts (Sup.
Chinese not entitled to naturalization (U. S.
composition in bankruptcy (U. S. Dist.)..... 170
Bank at New Brunswick:
prohibitory law and corporations (U. S. Sup.)... 487
negotiable instrument, accord and satisfaction
alteration of corporate charter (U. S. Sup.).... 27
status of product of exempt property (Sup., N.
liability for indirect consequences (Eng. Q. B.
trial of extradited criminals for offense not in
confiscation law not retroactive (U. S. Sup.)..... 484
contributory negligence; caboose car; passen-
municipal bonds and incidents (U. S. Sup.)...... 264
what is due process of law (U. S. Sup.)..... 223
authority of bank cashier to certify (Sup., Pa.).. 189
liability for representations as to credit of an-
CASES IN FULL - Continued.
constitutionality of exemption laws (U. S. Sup.). 346
impairing obligation of contract (U. S. Sup.).... 128
delivery on sale of personal property (U. S. Sup.). 467
injury to traveler on free pass (U. S. Sup.)....... 169
knowledge of insolvency under bankrupt law
civil rights and interstate commerce (U. S. Sup). 109
State laws, regulating transportation of cattle
State laws regulating patent-right notes (Sup.,
CASES IN FULL- Continued.
liability of safe deposit company for loss (Sup.,
Federal rereivers and State courts (Sup., Ill.).... 200
State legislation and charters (U.S. Sup.)...... 105
jurisdiction of U. S. Circ. Courts (U. S. Sup.). .. 427
impairing obligation of contracts (Sup., Mo.).... 245
liability of principal for acts of agent (Eng.
constitutionality of State legislation affecting
private circulating notes less than one dollar (U.
report of ex parte judicial proceedings not a
invalidity of passive trusts (Ct. App., N. Y.).... 13
commutation of sentence valid without accept-
liability of cities for surface waters from streets
(Sup., R. I.)
removal of cause; fourteenth amendment (U.S.
State interference with patent rights (U. S.
naturalization of; decision of U.S. Circuit Court,
.67, 180, 304
COLLECTION OF DEBTS:
proximate and remote cause-setting fire (Sup.,
liability of owner for improper use of land (Eng.
municipal corporation, liability of (Sup., R. I.)... 12
power of Congress over the mails (U. S. Sup.)... 448
taxation by municipality of its own bonds (U.
transfer of shares in national banks (U. S. Circ.) 146
proof of willful burning in insurance actions
railroad ticket good in but one direction (Sup.,
recovery of money paid on illegal contract (U.
liability of ship-owners; service of process and
jurisdiction (U. S. Circ.) (See review of,
conditions in policies as to ownership (U. S.
life insurance and manslaughter ; action for
taxation by municipality of its own bonds (U.
loans by corporation in violation of charter (U.
government control over telegraphs (U. S. Sup.). 306
taxation of national banks (Ct. App., N. Y.). .... 344
examination of bankrupt in composition (U.
proof of marriage ; statute of limitation and
dower (Sup., Mich.)
procedure relating to..