Idem, 341 5. To a suit by legatees in a will, to compel an executor to account for moneys received by him, and to pay to them their distributive shares, it is no answer for the executor to show that he invested such funds in bonds of the confederate government by authority of a law of the state in which he was executor, and that such investment was approved by the decree of the probate court having settlement of the estate. Such investment was illegal, and the decree of the probate court approving the investment and directing the payment of the distributive shares of the legatees in such bonds was an absolute nullity. Horn v. Lockhart, ADMIRALTY. 657 APPEAL AND ERROR. See COURTS, 1, 2. DIVISION OF OPINION. 1. An appeal from a decision of the circuit court in the exercise of its supervisory jurisdiction conferred by sec. 2 of the bankrupt act, cannot be entertained. 242 Mead v. Thompson, 2. Proceedings at law in the circuit court cannot be removed into this court in any other way than by writ of error; an appeal will not lie to this court in such a case. Burrows v. Carrow, 249 3. Where the record does not state what services were rendered by the clerk or marshal, the objection that their fees are illegal cannot be sustained. Flanders v. Tweed, 203 4. It is no error for a judge to direct a jury to find an issue for the plaintiff where, if the jury had found otherwise it would have been the duty of the judge to set aside the verdict, as unsupported by and in hostility to the evidence. Grand Chute v. Winegar, 170 5. Although one of several pleas was wrongfully excluded, yet if no evidence was rejected on account of its absence, and the defendant litigated every question of fact as fully as he would have done if his pleading had remained, the judgment will not be reversed for that reason. 170 Idem, 278 12. The withdrawal of evidence which was improperly admitted is no ground of error. Specht v. Howard, 348 13. Where the district court referred a cause to a commissioner to compute the damages, and all the testimony introduced before him is not in the record, nor any sufficient statement of the facts, this court will not review his findings. The Cayuga v. Wilson, 354 14. Where the instructions given to the jury are sufficient to present the whole controversy to their consideration in clear and unambiguous terms, it is no cause for the reversal of the judgment to show that one or more of the prayers for instruction presented by the losing party, and not given by the court, were correct in the abstract. U. S. v. Tweed, 389 15. Where there is no evidence to warrant the court in submitting a question to the jury, an ex Bank v. Kennedy, 554 40. Where a decree is entered upon an order taking a bill in equity as confessed by defendants for want of an answer, the only question for the consideration of this court on appeal is, whether the allegations of the bill are sufficient to support the decree. Masterson v. Howard, 764 41. Exclusion of evidence to prove a fact will not justify a reversal of the judgment where the fact was fully proved by other evidence and the Lucas v. Brooks, 23. Second appeals or writs of error are allowed, but they bring up only the proceedings sub-party had the benefit of such proof. sequent to the mandate, and do not authorize an inquiry into the merits of the original judgment or decree, nor into any questions which were before the court on the first writ of error. Magwire v. Tyler, 576 24. The state court has no power to dismiss an equity action on the ground that the plaintiff had a remedy at law, after the whole case had been decided here and the cause remanded for final judgment. Idem, 576 25. Where the cause is here upon a second writ of error the court may at its discretion remand the same a second time or proceed to a final decision of the same and award execution. The latter course will be taken when the state court refuses to carry into effect the mandate of this court on the first writ of error. Idem, 576 26. In Louisiana a summary proceeding to foreclose a mortgage is a final judgment or decree, and an appeal lies from it to this court. Martin v. Lalley, 596 27. No writ of error lies, where the proceeding below, in its essential nature, is a foreclosure of a mortgage in chancery; the only proper mode of bringing it here is by appeal. Idem, 596 28. A district judge sitting in the circuit court, may allow appeals from its decisions. Rodd v. Heartt, 627 29. The act of June 1, 1872, allows sixty days for the filing of the bond by which the appeal is made to operate as a supersedeas. Idem, 627 30. Where the basis of the account as reported by the master was entirely erroneous and utterly insufficient as a foundation for any decree, it will be set aside and the decree, made on it, reversed. Moore v. Huntington, 642 31. It is not error for a court, leaving to the jury the credibility of the testimony and their belief of certain material facts, to instruct the jury that they must, if they so believe, find for one party. Stitt v. Huidekoper, 644 32. Nor is it error for a court in its instructions to limit them to the special contract which alone was considered by counsel on both sides, and when no evidence was given applicable to a common count found in the declaration. Idem, 644 52. Where a judgment of an inferior state court 33. Where a deposition taken de bene esse was was affirmed in the court of appeals of the state, read without objection and without exception, it and upon such affirmance such court of appeals cannot be objected here that the court received it. gave judgment that the defendant in error recover 666 Ray v. Smith, his damages and costs, and such judgment was 34. The decision of the court of claims held entered in the inferior court, the writ of error final under a special act, and that no appeal would' from this court must be directed to such court lie from it to this court. of appeals, and not to the inferior state court. Underwood v. McVeigh, 82. 83. 84, 85-U. S. 972 Ex parte U. S., 696 952 APPEAL AND ERROR, PRACTICE ON. | upon a criminal charge committed in that state, such proceedings did not exonerate the bail. Idem, 1. Where a writ of error is made returnable on the wrong day, in term, it may be amended. Hampton v. Rouse, 250 BANKRUPTCY. 2. In prize cases, if notice of appeal, or of intention to appeal, to this court, be filed with the clerk of the district court within thirty days next after the final decree therein, an appeal will be allowed to this court. U. S. v. The Neustra Señora De Regla, 596 3. Where the plaintiff in error filed no assignment of errors or brief, as required by the rules, the judgment will be affirmed. Ryan v. Koch, 611 4. This court will, upon certificate of the clerk below, allow transcript to be amended by inserting the entry of judgment of the court below, where it was entered before the granting of the writ of error, and was inadvertently omitted by the clerk. See APPEAL AND ERROR, 1, 19. TRUSTS AND TRUSTEES, 10. 287 C. Insolvency, in the sense of the bankrupt act, means that the party whose business affairs are in question, is unable to pay his debts as they become due in the ordinary course of his daily transactions, although his inability be not so great as to compel him to stop his business. Buchanan v. Smith, Wager v. Hall, 280 504 7. Ordinary prudence is required of a creditor to ascertain his debtor's solvency, and if he fails to investigate when put upon inquiry, he is chargeable with all the knowledge he would have acquired if he had investigated. 280 Buchanan v. Smith, 8. Creditor issuing executions on judgments upon demands long overdue against a bankrupt, who has been often pressed to pay or secure the demands and has failed to do so because of his inability, must be held to have noticed that such debtor was insolvent. Idem. 280 9. The lessor and the sheriff had the right, under the law of Louisiana giving a lien for rent, to the possession of goods for the payment of rent, which had been seized for that purpose before the proceedings in bankruptcy and the assignee in bankruptcy could not take them from their possession. 10. Where the goods have been sold by the assignee, the lessor may recover of him the full value of the goods (limited by the amount of rent which he is entitled to be paid) and his taxable costs. Idem, 481 11. Where a retail merchant in a small country town sells his entire stock to one person, it is prima facie a fraudulent sale under the bankrupt act, as to the buyer and his vendee, with notice of the facts. 12. The presumption of fraud arising from the unusual nature of the sale, can only be overcome by proof on the part of the buyer that he took the proper steps to find out the pecuniary condition of the seller. 489 Idem, 13. A mortgage made within twenty-four days next before the petition in bankruptcy was filed, with a view to give a preference to the mortgagee over all other creditors, except such as he had previously secured, is fraudulent under the bank. rupt act. 504 Wager v. Hall, 14. The present bankrupt act avoids a conveyance, made with a view to give a preference, if the debtor at the time be in fact insolvent, although he may not contemplate bankruptcy in connection with the conveyance, Idem, 504 973 61 Massey v. Allen, 542 17. Under the bankrupt law, something more than passive non-resistance, in an insolvent debtor, is necessary to invalidate a judgment and levy on his property, when the debt is due and he has no defense. Wilson v. Bank of St. Paul, 723 18. In such case there is no obligation of the debtor to file a petition in bankruptcy, to prevent the judgment and levy, and a failure to do this is not sufficient evidence of an intent to give a preference to the judgment creditor, or to defeat the operation of the bankrupt law. Idem, 723 19. Although the judgment creditor in such a case may know the insolvent condition of the debtor, his judgment and levy upon this property are not, therefore, void, and are no violation of the act. Idem, 723 20. A lien thus obtained by him will not be displaced by subsequent proceedings in bankruptcy, although commenced within four months after levy of the execution or rendition of the judgment. Idem, 723 21. Section 20 of the bankrupt act was not intended to enlarge the doctrine of set-off beyond what the principles of legal or equitable set-off previously authorized. Sawyer v. Hoag, 731 22. The promise by which a debt discharged in bankruptcy is revived must be clear, distinct and unequivocal. Allen v. Ferguson, 854 23. A promise in the letter of the defendant "be satisfied, I intend to pay all my just debts; all will be right betwixt me and my just creditors," is not a promise to pay plaintiff's debt. Idem, 854 24. Advances may be made in good faith to a debtor to carry on his business, no matter what his condition may be, and the party making these advances can lawfully take securities at the time for their repayment, without violating the bankrupt law. Tiffany v. Boatman's Inst., 868 25. When a payment on a note is an unlawful preference under the bankrupt act and the effect of such payment. Bartholow v. Bean, 866 666 2. When, by arrangement between the maker and the indorser, the latter has become the principal debtor, and primarily liable, he cannot insist upon notice of presentment and non-payment of a note. He becomes such principal debtor when he is supplied by the maker with funds to pay it. Idem, 666 3. Where the funds were not placed in his hands for the purpose of paying the note, but he was merely authorized to apply them to its payment, it is for the jury to find whether the defendant had become the principal debtor or not. Idem, 666 4. It is not a legal defense to a suit on a promissory note executed in Louisiana in 1861, that such note was given as the price, or a part of the price, of slaves sold to the maker. Boyce v. Tabb, 757 5. A written promise of the drawees to accept drafts is equivalent to acceptance, and may be enforced although the drawees have voluntarily placed out of their hands the fund on which the drafts were drawn. 864 Miltenberger v. Cooke, 6. Where money is paid on a raised check by mistake, neither party being in fault, the general rule is, that it may be recovered back as paid without consideration." Espy v. Nat'l Bk. of Cin., 947 7. But if either party has been guilty of negligence or carelessness, by which the other has been injured, the negligent party must bear the loss. Idem, 947 8. Where a party to whom such a check is offered sends it to the bank on which it is drawn, for information, the law presumes that the bank has knowledge of the drawer's signature and of the state of his account, and it is responsible for what may be replied on these points. Idem, 947 9. Unless there is something in the terms in which information is asked that points the attention of the bank officers beyond these two matters, his response that the check is good will be limited to them and will not extend to the genuineness of the filling in of the check as to payee or amount. Idem, 947 BILLS OF ATTAINDER. 1. Where the bill of lading does not specify any particular place for the stowage of goods, they are properly stowed between decks in the hold. The Star of Hope v. Church, 719 2. Where the contract of a bill of lading was, that the goods should be delivered in good order, dangers of the seas excepted, sweating produced in consequence of negligent stowage is not one of the dangers of the seas. 719 Idem, 3. Where goods, if stowed in the hold, are liable to be injured by sweat, and were marked "in cabin state-room," it was culpable negligence to stow them in the hold. Idem, 719 BONDS. See INTERNAL REVENUE, 1. PRINCIPAL AND SURETY, 1, 3. TAXES AND TAX SALES, 1, 10, 12. 1. A collector or receiver of public money, under bond to keep it safely and pay it when required, is excused from paying it, if prevented by the act of God or the public enemy, without any neglect or fault on his part. United States v. Thomas, 89 2. The forcible seizure, by the rebel authorities, of public moneys in the hands of loyal government agents against their will and without their fault, is a sufficient discharge from their obligations under such bond. Idem, 89 3. At law, if one of two joint obligors die, the debt is extinguished against his representative, and the surviving obligor is alone chargeable. Pickersgill v. Lahens' Exr., 119 4. In such case, where the remedy at law is gone, a court of equity will not afford relief, unless the parties intended to create a separate liabil ity, and through fraud, ignorance or mistake, the joint obligation does not express the intention of the parties in which case it will be reformed so as to conform to it, as in the case of money lent to both of them, except in the case of a mere surety, whose duty is measured alone by the legal force of the bond. Idem, 119 6. Where the plaintiff was the bona fide holder for value, of municipal bonds, and his title accrued before their maturity, want of compliance with the forms of law, or fraud in the agents of the municipality cannot be shown to defeat a recovery upon them. Grand Chute v. Winegar, 170 7. Arkansas bonds, issued for the purpose of supporting the war against the Federal government, are not a valid consideration for a promissory note, although they were used as a circulating medium in Arkansas. Hanauer v. Woodruff, 224 8. Trustees or other local representatives of townships, counties and parishes have no implied power to issue coupon bonds, payable at a future day. Police Jury v. Britton, 251 9. Where the county judge is designated by the statute to decide whether the voters of the county have given the required sanction to the issue of county bonds, and he executed the bonds, with the requisite popular sanction set forth upon their face, that fact is not open for examination, when the bonds are in the hands of a bona fide purchaser. Lynde v. Winnebago, 272 10. It is not a valid objection that the bonds were made payable and were sold beyond the limits of the state, nor that the county judge sealed them out of the state. Idem, 272 11. When a state by public statute requires the indorsement of its governor as a prerequisite to the valid transfer of United States bonds belonging to it, no presumption arises from the absence of that indorsement alone that particular bonds had been issued without authority and for an unlawful purpose, except as to bonds issued in aid of the rebellion. 316 Huntington's Exr. v. Texas, 12. If the usurping government was in actual control of the state, the validity of its alienation must depend on the object and purpose of it. If that was just in itself and laudable the alienation was valid; if, on the contrary, the object and purpose were to break the Union, the alienation was invalid. Idem, 316 13. After an order of payment, by the United States, anyone who has never held or controlled the bonds may receive the payment. In such a case the state must look to the United States, if bonds still belonging to it have been paid to third parties. Idem, 316 14. If an election or other fact is required to authorize the issue of the bonds of a municipal corporation, and if the result of that election, or the existence of that fact, is by law to be ascertained and declared by any judge, officer or tribunal, and that judge, officer or tribunal, on behalf of the corporation, executes or issues the bonds, with a recital that the election has been held, or that the fact exists or has taken place, this will be a sufficient evidence of the fact to all bona fide holders of the bonds. 328 18. The legislature of Nebraska had authority to authorize its municipal divisions to incur indebt 20. It being an unconditional bestowal of authority upon the county commissioners to issue the bonds to the railroad company, the county commissioners could lawfully issue the bonds without any submission to a vote of the people. 375 Idem, 2. Common carriers are not chargeable, in cases free from suspicion, with notice of the contents of packages carried by them, nor are they authorized in such cases to require information as to the contents of the packages offered, as a condition of carrying them. Idem. 206 3. Where there is nothing to excite the suspicion of a common carrier as to the contents of a package carried by him, it is not negligence on his part to introduce the package, when appearing to be damaged, into his place of business for examination, and to handle it in the same manner as other packages of similar outward appearance, are usually introduced for examination and handled. Idem, 206 4. The measure of care against accidents which a carrier must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interest were to be affected, and the whole risk were his own. Idem, 206 5. It is the duty of a carrier on connecting lines, to carry safely to the end of his line and deliver to the next carrier in the route beyond. Railroad Co. v. Manufacturing Co., 297 6. A railroad company is not excused from delivery to a connecting carrier by a clause in its charter that the company shall be responsible for |