66

ceivers of R. R. v. Armstrong, 4 Tex. Civ. App. 150, 23 S. W. 237, refusing recovery for injury to drover, erroneously acting on advice of brakeman; Galveston, etc., R. R. v. Parsley, 6 Tex. Civ. App. 156, 25 S. W. 67, awarding damages for negligent killing of soldier on special train; Gulf, etc., R. R. v. Eddins, 7 Tex. Civ. App. 121, 28 8. W. 162, holding railroad liable for escape of horses through negligence; Gillis v. Western Union Tel. Co., 61 Vt. 465, 15 Am. St. Rep. 919, 17 Atl. 737, 4 L. R. A. 615, and n., holding stipulation limiting liability on unrepeated" messages, void in case of negligence; Virginia, etc., R. R. v. Sayers, 26 Gratt. 339, 345, and Maslin v. Baltimore, etc., R. R., 14 W. Va. 203, 35 Am. Rep. 757, both holding railroad liable for negligent loss of cattle; Davis v. Chicago, etc., R. R., 93 Wis. 480, 481, 57 Am. St. Rep. 938, 939, 67 N. W. 18, 19, 33 L. R. A. 657, 658, approving rule, but refusing recovery where it does not appear that defendant's negligence was the proximate cause of injuries; Abrams v. Milwaukee, etc., Ry., 87 Wis. 493, 41 Am. St. Rep. 59, 58 N. W. 783, and Cleveland, etc., R. R. v. Heath, 22 Ind. App. 54, 53 N. E. 200, railroad held liable for negligence in forwarding cattle.

Cited also in dissenting opinion in Constable v. National Steamship Co., 154 U. S. 101, 38 L. 923, 14 S. Ct. 1081, majority holding carrier not liable for loss by fire, after unloading, under contract; Pacific Express Co. v. Foley, 46 Kan. 476, 26 Pac. 672, 12 L. R. A. 806, and n., majority holding contract provision limiting liability to certain amount, if true value is not stated, valid; Piedmont Mfg. Co. v. Columbia, etc., R. R., 19 S. C. 383, majority holding exemption of railroad from liability for loss on connecting line, valid; Zouch v. Chesapeake, etc., R. R., 36 W. Va. 542, 15 S. E. 192, 17 L. R. A. 123, majority holding limitation of liability, valid in absence of gross negligence. Cited, arguendo, in Constable v. National Steamship Co., 154 U. S. 67, 38 L. 912, 14 S. Ct. 1069, holding defendant not liable for loss by fire, after unloading, under contract; Darrall v. Southern Pacific R. R., 47 La. Ann. 1461, 17 So. 887, holding railroad liable for loss of barge by contact with bridge piling; Heyward v. Boston, etc., R. R., 169 Mass. 469, 48 N. E. 773, holding passenger on freight train cannot recover for injury, in absence of negligence. See notes in 32 Am. Dec. 499; valuable note in 43 Am. Dec. 367, 45 Am. Dec. 739, 50 Am. Dec. 666, 55 Am. Dec. 485, 67 Am. Dec. 550, 75 Am. Dec. 498, 79 Am. Dec. 57, 82 Am. Dec. 291, 295, 88 Am. Dec. 337, 92 Am. Dec. 89, 96 Am. Dec. 211, 97 Am. Dec. 182, 10 Am. Rep. 96, 10 Am. Rep. 366, and 18 Am. Rep. 367; exhaustive note in 57 Am. Rep. 390, 391, 392; valuable note in 5 Am. St. Rep. 726, 13 Am. St. Rep. 783, 26 Am. St. Rep. 120, 49 Am. St. Rep. 613, 61 Am. St. Rep. 89.

Distinguished in Hartford Fire Ins. Co. v. Chicago, etc., R. R., 70 Fed. 204, 207, 36 U. S. App. 152, 30 L. R. A. 198, 200, holding provision in lease, exempting railroad from liability for loss by

Patents. In passing upon validity of claims in a patent, history of the art will be reviewed, p. 473.

17 Wall. 473-488, 21 L. 723, WILSON v. CITY BANK.

Bankruptcy.- Primary object of bankruptcy is to secure a just distribution of property among creditors; secondary object is release of bankrupt from his debts, p. 481.

Approved in Frankel v. Creditors, 20 Nev. 56, 14 Pac. 777, construing State insolvent act.

Bankruptcy.-Averments required by statute, in a voluntary petition in bankruptcy, cannot be traversed, nor is any inquiry as to their truth permitted, p. 481.

Bankruptcy.- Administration of the effects of voluntary bankrupt proceeds under direction of court, p. 481.

Bankruptcy.- Petition for involuntary bankruptcy must comply with requirements of statute, and necessary allegations may be denied by debtor, who may demand verdict of a jury, p. 481.

Approved in Sanford v. Huxford, 32 Mich. 316, 321, 20 Am. Rep. 649, 652, holding agreement to withdraw opposition to bankruptcy proceedings, valid.

Bankruptcy.-To render a transfer of property void, as fraudulent preference, there must be an intent to give preference to a creditor, or to defeat or delay operation of the act, p. 484.

Cited with approval in Mays v. Fritton, 20 Wall. 420, 22 L. 391, holding bond and judgment by confession, valid in creditor's hands; Burnhisel v. Firman, 22 Wall. 178, 22 L. 769, holding a new mortgage on same property for same debt, is not a preference; Brown v. Jefferson, etc., Bank, 19 Blatchf. 321, 322, 323, 9 Fed. 259, 261, holding collusive judgment and levy, void against assignee in bankruptcy; Balfour v. Wheeler, 15 Fed. 232, holding execution sale, after judgment on note given to prefer a creditor, void; S. C., 22 Blatchf. 5, 18 Fed. 895, affirmed; Hoover v. Greenbaum, 61 N. Y. 811, holding judgment by confession obtained from debtor by creditor's attorney, but without latter's knowledge, valid; Tyler v. Brock, 68 N. Y. 423, holding that to invalidate a transfer, creditor must have reason to believe debtor insolvent; Chadwick v. Carson, 78 Ala. 121, holding mortgage valid, where mortgagee had no knowledge of mortgagor's insolvency.

Bankruptcy.— There is no moral obligation on an insolvent, unless the statute requires it, to petition for voluntary bankruptcy when sued for a debt, p. 485.

Cited and relied upon in National Bank v. Warren, 96 U. S. 541, 24 L. 640, and Henkelman v. Smith, 42 Md. 174, refusing recovery to assignee in bankruptcy, of property sold under execution; Par

tridge v. Dearborn, 2 Low. 286, 287, F. C. 10,785, holding lien obtained by judgment on debt not yet payable, void; Witt v. Hereth, 6 Biss. 476, F. C. 17,921, holding judgment and execution, just prior to bankruptcy, valid; In re Union Pac. R. R., 10 Bank. Reg. 184, 24 Fed. Cas. 627, holding mortgage to secure bonds issued to pay debts, not an act of bankruptcy; Parsons v. Caswell, 1 Fed. 77, holding judgments obtained by secret co-operation of insolvent debtor, void; Brown v. Jefferson, etc., Bank, 19 Blatchf. 322, 9 Fed. 262, and Conover v. Hull, 10 Wash. 688, 45 Am. St. Rep. 824, 39 Pac. 171, both holding collusive judgment and levy void, as against assignee in bankruptcy; Mason v. Warthens, 7 W. Va. 540, holding attachment lien not displaced by bankruptcy proceedings.

Distinguished in Hyde v. Corrigan, 9 Bank. Reg. 469, 12 Fed. Cas. 1107, holding execution, after default judgment against a party utterly insolvent, void.

Torts. A person who does a positive act, knowing the consequences beforehand, is held to intend those consequences, p. 486. Approved in Hyde v. Corrigan, 9 Bank. Reg. 469, 12 Fed. Cas. 1107, holding execution, after default judgment against one utterly insolvent, void; Zahm v. Fry, 9 Bank. Reg. 551, 30 Fed. Cas. 906, holding judgment obtained on warrant of attorney to confess, given to creditor by insolvent, voidable.

Torts. A man cannot be held to intend a result of other person's acts, when he contributes nothing to their success and is under no obligation to prevent them, p. 486.

Approved in Hyde v. Corrigan, 9 Bank. Reg. 470, 11 Fed. Cas. 1107, holding execution, after default judgment against one utterly insolvent, void.

Bankruptcy. Very slight affirmative evidence of a desire, or acts done to prefer a creditor, might invalidate a transaction, under bankruptcy act, p. 487.

Cited and principle applied in Dutcher v. Wright, 94 U. S. 557, 24 L. 131, holding transfer to creditor invalid, where he should reasonably have known that debtor was insolvent; Rogers v. Palmer, 102 U. S. 268, 26 L. 165, holding default judgment and execution aided by insolvent, void; Sage v. Wyncoop, 104 U. S. 321, 26 L. 740, holding judgment and execution, obtained just prior to voluntary bankruptcy, void; Wight v. Muxlow, 8 Ben. 57, F. C. 17,629, holding interposition of groundless defense in one action to facilitate judgment by default in another, renders the lien of the latter void; Hyde v. Corrigan, 9 Bank. Reg. 470, 12 Fed. Cas. 1108, holding execution, after default judgment against one utterly insolvent, void; Harrison v. McLaren, 10 Bank. Reg. 250, 11 Fed. Cas. 657, holding preferences void; In re Jonas, 16 Bank. Reg. 458, 13 Fed. Cas. 925, holding any creditor may intervene and contest the bankruptcy pe

tition; In re King, 10 Bank. Reg. 104, 14 Fed. Cas. 507, holding acknowledgment of service of summons by debtor, will not invalidate judgment obtained by creditor; Parsons v. Caswell, 1 Fed. 77, holding judgments obtained by secret co-operation of insolvent debtor, void; Brown v. Jefferson, etc., Bank, 19 Blatchf. 322, 323, 9 Fed. 262, 263, and Conover v. Hull, 10 Wash. 688, 45 Am. St. Rep. 824, 39 Pac. 171, both holding collusive judgment and levy, void against assignee in bankruptcy; Balfour v. Wheeler, 22 Blatchf. 5, 18 Fed. 895, 896, 897, holding execution sale, after confessed judgment on note given to prefer creditor, void; Sartwell v. North, 144 Mass. 195, 10 N. E. 827, holding voluntary appearance of debtor and default judgment invalidate execution thereunder.

Bankruptcy. Mere passive non-resistance of an insolvent debtor to regular judicial proceedings on a debt already due, does not show preference of a creditor, or a purpose to defeat or delay operation of bankrupt act of 1867, p. 488.

Cited and principle followed in Clark v. Iselin, 21 Wall. 373, 377, 22 L. 572, 574, refusing recovery to assignee in bankruptcy of money paid by debtor to judgment creditor; National Bank v. Warren, 96 J. S. 541, 24 L. 640, refusing recovery to assignee in bankruptcy of property sold under execution (reversing S. C., 10 Blatchf. 500, F. C. 17,202); Britton v. Payen, 7 Ben. 224, 226, F. C. 1,906, holding default judgment for rent, and execution thereunder, valid; Macdonald v. Moore, 8 Ben. 582, F. C. 8,763, holding judgment and levy, after void assignment, valid; Sleek v. Turner, 76 Pa. St. 145, holding execution after default judgment on note, valid; McCormick v. Buckner, 15 Fed. Cas. 1306, holding execution after judgment confessed by debtor, valid; Crane v. Penny, 2 Fed. 196, holding execution lien, attaching before filing of bankruptcy petition, valid, though levy was not made until afterwards; Henkelman v. Smith, 42 Md. 174, and Kemmerer v. Tool, 78 Pa. St. 151, S. C., 81 Pa. St. 474, refusing recovery to assignee of property sold under execution by creditor; Louchheim v. Henzey, 86 Pa. St. 352, holding execution sale, shortly before filing bankruptcy petition, valid; Mason v. Warthens, 7 W. Va. 540, holding attachment lien not displaced by bankruptcy proceeding. Cited, arguendo, in In re Ogles, 93 Fed. 434, refusing injunction against attaching creditors alleged to be unlawfully preferred; South Carolina Loan, etc., Co. v. McPherson, 26 S. C. 440, 2 S. E. 272.

Distinguished in Little v. Alexander, 21 Wall. 503, 22 L. 626, holding intentional preference of creditors by giving new notes to allow earlier judgments, void; Partridge v. Dearborn, 2 Low. 286, 287, F. C. 10,785, holding lien obtained by judgment on debt not due, void; Alderdice v. State Bank, 1 Hughes, 56, F. C. 154, holding deed of preference given for overdraft, one month before bankruptcy, vold; Loudon v. First Nat. Bank, etc., 2 Hughes, 427, F. C. 8,525, holding execution sale, after judgment on new notes, taken with knowledge

of debtor's insolvency, void; Britton v. Payen, 7 Ben. 230, 231, F. C. 1,906, holding transfer of goods to secure payment of rent, void; Wight v. Muxlow, 8 Ben. 56, F. C. 17,629, holding the interposition of a groundless defense in one suit, to allow another creditor to obtain judgment by default, renders the latter void; In re Herpich, 7 Biss. 389, 391, F. C. 6,418, holding judgment and execution, under warrant of attorney given to creditor who knew of insolvency, void; Zahm v. Fry, 9 Bank. Reg. 551, 30 Fed. Cas. 906, holding judgment obtained on warrant of attorney, given to creditor by insolvent, voidable; Harrison v. McLaren, 10 Bank. Reg. 250, 11 Fed. Cas. 657, holding preference of creditor by shipment of goods, void; Parsons v. Caswell, 1 Fed. 77, holding judgments obtained by secret co-operation of insolvent debtor, void; Darling v. Townsend, 5 Fed. 179, holding execution on judgment obtained by confession of debtor two days before bankruptcy, void; Brown v. Jefferson, etc., Bank, 19 Blatchf. 317, 319, 9 Fed. 258, 259, holding collusive judg ments and levies void as against an assignee in bankruptcy; Balfour v. Wheeler, 22 Blatchf. 5, 18 Fed. 895, 896, 897, holding execution sale after confessed judgment on note given to prefer creditor, void; In re Moyer, 93 Fed. 189, holding execution after judgment entered on warrant of attorney given by debtor, void under act of 1898; Sartwell v. North, 144 Mass. 195, 10 N. E. 827, holding voluntary appearance by debtor and default judgment, invalidate execution thereunder; Wright v. Fergus, etc., Bank, 48 Minn. 128, 129, 50 N. W. 1031, 1032, holding collusive judgment to prefer a creditor, void; Yanish v. Pioneer Fuel Co., 60 Minn. 324, 62 N. W. 388, holding execution, after default judgment, invalid under State insolvent act.

Bankruptcy. Although creditor knows insolvent condition of his debtor, his levy and seizure on debtor's property, after judg ment by default, are not void, p. 488.

Cited and relied upon in Clark v. Iselin, 21 Wall. 373, 22 L. 572, refusing recovery by assignee in bankruptcy, of money paid by debtor to judgment creditor; National Bank v. Warren, 96 U. S. 541, 24 L. 640, holding execution sale valid; Blabon v. Hunt, 3 Fed. Cas. 494, applying rule where judgment was entered on warrant of attorney given to creditor; Hovey v. Home Ins. Co., 10 Bank. Reg. 232, 12 Fed. Cas. 607, holding purchase of a debt of one insolvent by his debtor immediately prior to bankruptcy, to set off against his indebtedness, valid; Sleek v. Turner, 76 Pa. St. 145, applying rule in case of execution after judgment on note; In re Price, 19 Fed. Cas. 1316, refusing to expunge proof of claim of judgment creditor; Henkelman v. Smith, 42 Md. 174, 176, and Kemmerer v. Tool, 78 Pa. St. 151, S. C., 81 Pa. St. 474, refusing recovery to assignee of property sold under execution; State, etc. v. Taylor, 3 Mo. App. 355, holding sheriff liable for turning over to United States assignee in VOL. VIII-6