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determine whether this was a fair criterion of the actual market value. The market value of the property, rather than any injury over and above the market value which the assignee or the original owner might have suffered, is the measure of damages. Ib.
5. Defense: that assignee has obtained judgment against attachment creditor none to sheriff.-The fact that the assignee in bankruptcy has already obtained judgment against the attachment creditor in a suit for damages for the same conversion, and has issued execution on the judgment, is no defense to a suit against the sheriff; the judgment being still unsatisfied, an unsatisfied judgment against one or two joint tort feasors is no bar to an action against the other. Ib.
1. Practice: examination of debtor: priority on. -At an adjourned composition meeting, after waiting a reasonable length of time, the register allowed a creditor to continue his examination of the debtor, which had been taken at regularly adjourned meetings. Subsequently the attorney for another creditor appeared and asked permission to continue an examination which had previously been closed, and that all the testimony taken at such meeting be stricken ont, which was denied. It appearing that his power of attorney had been revoked, he then asked permission to go on with the examination in behalf of another creditor, which was also denied. Held, that the register was right in refusing to suspend the examination then pending. No other creditor was entitled to priority at that time. U. S. Dist. Ct., E. D. New York. In re Tifft, 17 Nat. Bankr. Reg. 550.
2. Limit of examination.-The attorney asked permission to examine the bankrupt as to the circumstances under which the revocation of his power of attorney had been obtained, which was refused. Held, no error. The register refused to suspend the examination then pending until the questions certified by him could be decided. Held, no error. Ib.
What property is not exempt: partnership property.— Within a month prior to the commencement of the proceedings in bankruptcy, and while the firm was insolvent, a large amount of the partnership property was sold and the proceeds divided between the partners, and the firm then offered to settle with their creditors at fifty per cent. One of the partners, upon receiving his share of the proceeds of said sale, immediately purchased property which was exempt under the State statute. Held, that under the circumstances such property was not exempt, but must be regarded as partnership assets held in trust for creditors. U.S. Dist. Ct., Minnesota. In re Melvin & Fox, 17 Nat. Bankr. Reg. 543.
possibility that C. might, against all his laches and against all his acts of acquiescence, prove the fraud alleged, substantial justice does not require that the creditors whose rights have become fixed through his voluntary acts should be subjected to the delay and expense incident to such an investigation. U. S. Dist. Ct., S. D. New York. In re Court, 17 Nat. Bankr. Reg. 555.
When party is not entitled to election of remedy: articles for manufacture in bankrupt's possession.- Petitioners had, prior to the commencement of the proceedings, delivered to the bankrupt certain wool which he was to manufacture into cloth for them. The assignee, under the direction of the court, completed the manufacture of the cloth and sold it. Petitioners demanded of the assignee the unfinished cloth and yarn and wool belonging to them, offering to pay for the labor and materials expended thereon. Upon refusal they brought suit against the assignee in trover and recovered judgment for their damages with interest and costs. The recovery was afterward limited to the amount realized by the assignee on the sale, less the cost of the labor and materials put into the goods by the bankrupt and the assignee. The assets being insufficient to pay this judgment in full after payment of the fees, costs and expenses of the assignee incurred in the course of the proceedings and in his administration of the estate, petitioners ask that the judgment be paid in full or so far as the assets will go toward its payment. Held, that petitioners, having elected to sue in trover for damages, waived any claim they might have had to the moneys in the assignee's hands as their own moneys, and were not entitled to priority over those expenses which are expressly preferred by the statute. U. S. Dist. Ct., S. D. New York. In re Oberhoffer, 17 Nat. Bankr. Reg. 546.
When it will be issued. A provisional warrant issued in voluntary proceedings upon papers regular on their face, and upon proof by affidavit of facts showing that it was very necessary for the protection of the estate, will not be vacated where such facts are not disproved and it appears that the purpose of the bankrupts in making the motion is to deprive the marshal of his fees, and this whether it was one which the court had power to issue or not. U. S. Dist. Ct., S. D. New York. In re Clark, 17 Nat. Bankr. Reg. 554.
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 of the cases reported, and cases cited, and an index. By Augustus N. Martin, Official Reporter, Volume LVII. Containing cases decided at the May term, 1877, not reported in Vol. LVI, and cases decided at the November term, 1877. Indianapolis. John G. Doughty, 1878.
When proceedings will not be vacated for: estoppel.C. joined in a voluntary petition with his partners and participated actively in the proceedings. After the lapse of about five months he moved to set aside the
HIS volume of Indiana reports contains among
adjudication on the ground that he was induced to others these cases of interest: O'Dea v. State,
join in the petition by fraudulent misrepresentations of his copartners and the attorney who prepared the petition and schedules, that the firm was not in fact insolvent and that the proceedings were carried on in the interest of his copartners for the purpose of depriving him of his property. Held, that upon the bare
p. 31: A law forbidding the sale of intoxicating liquor without a license therefor held constitutional. Dobson v. State, p. 69: One evading the letter of a penal law is not punishable thereunder, whatever may be his motive. City of Huntington v. Cheesbro, p. 74:
A city ordinance forbidding peddling within the city limits without a license and prescribing a punishment for its violation, is not in contravention of either the State or Federal Constitution. Hart v. State, p. 103: To constitute larceny the taking must be felonious at the time. One snatching money from a person and retaining it without consent of such person is not necessarily guilty of larceny. Vaughn v. Ferral, p. 182: One about to purchase a promissory note exhibited the same to the maker who said it was all right, and there was no defense to it and it would be paid. Held, that the maker was estopped from setting up that the note was altered. Town of Centreville v. Woods, p. 192: A town is liable to one injured by a defect in its streets, notwithstanding such defect was caused by a third person. Alexander v. N. W. Chr. Univ., p. 466: A real estate broker, acting for both vendor and vendee in the sale of property, held entitled to receive compensation from both vendor and vendee. Western Un. Tel. Co. v. Ferguson, p. 495: While a telegraph company may refuse to transmit an indecent message, it may not one couched in proper terms on the ground that it is in furtherance of an immoral purpose. Pittsb., Cinc. & St. L. Rwy. Co. v. Vandyne, p. 576: A railroad company may refuse to carry a person so intoxicated as to be disgusting, offensive or annoying, though he have a ticket, but may not refuse one slightly intoxicated. The reporting is well done, the index full, and the table of cases cited carefully prepared.
Bostwick v. Frankfield, Nos. 262-265, order affirmed and judgment absolute for defendant on stipulation, with costs; opinion by Miller, J.- - Department of Public Parks, In re application of, ordered, that the remittitur be amended so as to give costs to neither party in this court; no opinion.-Hatch, In re petition of, No. 422, appeal dismissed, with costs to Hatch against Bowes; opinion per Curiam.- -Hebrew Benevolent Society, In re petition of, motion denied, with $10 costs; no opinion.Mead, In re petition of, No. 416, order affirmed; opinion by Miller, J.- -Merchants' Bank of Canada v. Livingston, No. 242, judgment reversed and new trial granted; opinion by Earl, J.- -Parker v. City of Cohoes, No. 253, order affirmed and judgment absolute for respondent on stipulation, with costs; on opinion of General Term.
-Roe v. Conway, No. 215, judgment reversed and new trial ordered; opinion by Miller, J.-Woodworth v. Payne, Nos. 131-146, judgment affirmed; opinion by Miller, J.
COURT OF APPEALS DECISIONS.
following opinions were handed down Friday, judgment (as entered in the book) to the roll.
June 21, 1878:
To the Editor of the Albany Law Journal:
SIR Since the enactment of the Code of Civil Procedure there has been considerable discussion as to the correct practice in making up a judgment roll and entering a judgment. In some cases the county clerks have, it seems to me, entirely misapprehended their
duties, inasmuch, in some counties no "judgmentbook" is kept, while in others the clerks refuse to make up a roll except upon filing a judgment, and also attaching thereto a certified copy thereof. For instance, a judgment in foreclosure is granted at Special Term, the court writes at the end a direction to the clerk to enter, the clerk then makes a copy, certifies the copy, and annexes both to the other papers making the roll, but does not enter either in any book.
Bouvier's Law Dictionary says that a judgment is the decision or sentence of the law by a court, and the old Code, section 245, defined it to be the final determination of the rights of the parties.
The idea of the average county clerk is, that a judgment is something made by a court or judge, in writing, to be filed in his office. On the contrary, it is something which, having been determined by the court, is to be reduced to writing and recorded as the judgment of the court by the clerk, the same as he records a verdict, and how he shall enter or record it is shown by a written direction of the court. The court indicates the judgment and the clerk enters it, in all cases when the court is called upon to decide any thing. In other cases the law fixes the judgment and the clerk enters it.
Under the Revised Statutes I apprehend the practice was to draw what was called the record of the judgment, and, after obtaining the direction of the court, when necessary, the clerk signed and filed it, 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 enter all judgments therein and to annex a copy of the
Here the practice under the Revised Statutes and the Code became mixed. No judgment-book was kept, and it having been held unnecessary for the clerk to sign the judgment, he has contented himself with filing in his office the judgment (as it is erroneously called), which is usually handed him by the attorney.
The Code of Civil Procedure retains the provision that the clerk shall keep (§ 1236) a judgment-book'and shall enter therein all final judgments. Sections 1237, 1276 and 1354 provide for the manner of making up the roll in different cases in each of which "a certified copy of the judgment" is required. The only distinction between the two Codes seems to be in the word certified.
It seems, therefore, perfectly clear that the correct practice is this: The clerk must keep a judgment-book and enter therein (i. e., write out) the judgment of the court. In litigated cases the decision will inform him how he is to draw the judgment. In partition, foreclosure and the like cases, the judgment is determined by the formal direction of the court to the clerk to enter (in the judgment-book) that form of a judgment which is usually prepared and handed to the court, 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 must make a certified copy of the judgment so entered in the book, and attach it to the pleadings, etc., and thus make up the "roll."
In practice, the attorney for the successful party should draft a judgment (in proper cases he obtains the direction of the court to enter). He then presents it to the clerk, who copies it into the judgmentbook. The judgment thus becomes "eutered." Then
In reply to a question as to whether a failure on the part of a justice of the peace to give a bond in compliance with the act of the last Legislature, vacates his office, says that it is his opinion that no such consequence would follow such omission; but he says, "it may be argued, and is perhaps a fair construction of 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 imposed upon justices for the benefit of the public, and ought to be complied with by those officers."
The attorney-general of this State, in reply to an inquiry from the acting superintendent of the banking department, says: In answer to your communication of this date relative to the construction to be given to the 2d section of chapter 347 of the Laws of 1878, amending the Savings Bank Law, I have the honor to say that the section probably fails to express what was intended by the person who drew it. It would seem to have been intended to limit the aggregate deposits by any individual in a savings bank to three thousand dollars; but that is not the necessary construction of the language used. It bears quite as properly the construction that any single deposit shall not exceed three thousand dollars. The language is so indefinite that, in my opinion, you will be justified in holding that aggregate deposits in excess of three thousand dollars and not in excess of the limitation prescribed by section 23 of the act of 1875 (ch. 371) will not be deemed violations of this section. The clear and precise language of the act of 1875 restricts the aggregate amount of deposits' to the sum mentioned in that act. If the Legislature by the section in question intended to restrict the aggregate deposits to three thousand dollars, it is fair to presume similarly accurate language would have been employed."
A novel kind of easement was claimed in the English case of Sturges v. Bridgman, before the Master of the Rolls on the 3d inst. The plaintiff, a physician, on the erection of a consulting-room in his garden found that the use by the defendant of two pestles and mor
tars fixed in the wall adjoining the consulting-room by their noise caused him grave inconvenience and annoyance, and commenced an action to restrain the continuance of the nuisance. The fact of the nuisance was scarcely disputed, but the defendant's contention was that he had acquired, first, a prescriptive right to commit the nuisance, and secondly, under section 2 of 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 within the authority of Webb v. Bird, 13 C. B. (N. S.) 841, and one of which he could not presume a grant, and, consequently, that the defendants had not acquired a title by prescription. Until the erection of the new room there had been no nuisance; and how 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 commit a trespass, to abate the nuisance, and there was no other way in which the acquisition of the right could have been prevented. He also thought that the easement of the passage of sound was not within the second section of the Prescription Act; it was not an easement which would "be enjoyed or derived upon, over, or from the land" of another. It was very much like the above case, where a person claimed a right to the uninterrupted enjoyment of the currents of air in motion to his windmill. The plaintiff was entitled to a perpetual injunction.
A correspondent of the Pall Mall Guzette writing from Valencia, says: There still survives in this city a very ancient tribunal which has exercised jurisdiction without a break for nearly a thousand years. Just outside the city, extending eastward to the Mediterranean and southward to the Lake of Albufera, is the plain known as the Huerta de Valencia. This plain, which covers nearly ten square miles, was at one time covered by the sea, but since the time of the Arabs it has been reclaimed, and has been converted by means of irrigation into one of the most fertile spots in the peninsula. The Huerta is traversed by eight main canals (acequias), which have an infinite number of small branches; and by this means the land is provided with an abundant supply of water. There are appointed times for the supply of water to each district, the signal for opening and closing the dykes being given by the great bell in the cathedral tower of Valencia. Agents are appointed to see that these arrangements are strictly carried out, and any infraction of them is brought before the tribunal to which I referred above. This tribunal, known as the "Tribunal of the Waters," is composed of eight members, who are elected by the eight divisions of the Huerta, and holds its sittings at noon every Thursday under the porch of Valencia Cathedral, the chapter of which is bound to provide it with a bench. All disputes which may have arisen during the past week are laid before the tribunal by word of mouth, neither the 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 920, no instance has been recorded in which the defeated party has appealed from it to the ordinary jurisdiction of the country. I may add that the Huerta contains sixty-three villages and hamlets, with a total population of nearly eighty thousand.
ABINGER, Lord, Sumner on...
ABUSES affecting administration of justice; resolu-
ACCOMPLICES, evidence of..
ACTS OF LEGISLATURE signed to May 18th.. 396
ADMISSION TO BAR:
Court of Appeals order..
representation of agent..
ALBANY LAW JOURNAL:
subscriber's estimate of value of.
ALDERSON, Baron, Sumner on
ALIBI, instance of successful one..........
ALIENS in France; Droit D' Aubaine, and rights of.. 405
Chicago Legal News on..
APPEAL to the Court of Appeals..
ARBITRATION, Court of...
ASSIGNMENT of lease, covenant not to assign not
CAMPBELL, Attorney-General, Sumner on..
Abbott v. Abbott:
husband and wife; liability for torts (Sup.,
Chinese not entitled to naturalization (U. S.
composition in bankruptcy (U. S. Dist.). ................
fire insurance and estoppel (U. S. Dist.)....
State as preferred creditor (Chanc., N. J.)
custom bad in law (Eng. C. P. D.)....
Brown v. Spofford:
negotiable instrument, accord and satisfaction
physicians as experts, compensation of (Sup.,
alteration of corporate charter (U. S. Sup.)....
status of product of exempt property (Sup., N.
Clark v. Chambers:
liability for indirect consequences (Eng. Q. B.
validity of Virginia Funding Act (Sup. Ct. App.,
trial of extradited criminals for offense not in
contributory negligence; caboose car; passen-
Cromwell v. County of Sac:
municipal bonds and incidents (U. S. Sup.)................ 264
what is due process of law (U. S. Sup.).....
authority of bank cashier to certify (Sup., Pa.).. 189
liability for representations as to credit of an-
Keeley v. Boston & Maine R. R. Co.:
railroad ticket good in but one direction (Sup.,
Knowlton v. Cong. & Empire Spring Co.:
recovery of money paid on illegal contract (U.
Hurdman v. North-Eastern Railway Co.:
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
excuse for non-fulfillment of contract; im-
Kane v. Hibernia Ins. Co.:
proof of willful burning in insurance actions
Lycoming Fire Ins. Co. v. Haven:
conditions in policies as to ownership (U. S.
Matteson v. Vaughn:
Noyes, Matter of:
extradition between States (U. S. Dist.)..
proof of marriage; statute of limitation and
liability of assignee of stock as security (U. S
loans by corporation in violation of charter (U.
forfeiture of life policy by non-payment (U. S.
government control over telegraphs (U. S. Sup.). 306
examination of parties (Sup., N. Y.)..........
taxation of national banks (Ct. App., N. Y.)..... 344
examination of bankrupt in composition (U.
CASES IN FULL- Continued.
Thayer v. City of Boston:
domicile and taxation (Sup. Jud., Mass.)
United States v. Fox:
constitutionality of State legislation affecting
ex post facto legislation; limits of Federal pow-
bank checks; internal revenue (U. S. Sup.)
private circulating notes less than one dollar (U.
naturalization of; decision of U. S. Circuit Court,
not entitled to naturalization.
report of ex parte judicial proceedings not a
Verdin v. Slocum:
invalidity of passive trusts (Ct. App., N. Y.).... 13
commutation of sentence valid without accept-
liability of cities for surface waters from streets
Wells, In re Petition of:
removal of cause; fourteenth amendment (U. S.
State interference with patent rights (U. S.
CHURCH, suit for negligence against..........
CENTRAL LAW JOURNAL, change in editor-
CHANEY, H. A., appointed State Reporter, Michigan, 60
CHITTY, Thomas, obituary notice of....
CHOATE, W. G., confirmation as district judge, S. D.
biographical sketch of...
.67, 180, 304
letter on, from A. P. Putnam.
letter of Geo. W. Nesmith with reminiscences of.... 181
CIVIL RIGHTS and interstate commerce.......
CLEVELAND LAW REPORTER, notice of... 96
amendments; veto of..
CODE COMMITTEE, appointment of joint, by