An agreement or assignment to transfer property from a debtor to his creditor is not fraudulent merely because there is an intention in both parties to defeat an execution at the suit of another creditor against the debtor. Wood v. Dixie, 32 An assignment by a copartnership, in trust for the benefit of creditors, which creates a trust for the benefit of some of the members of the firm, before the payment of all the creditors of the firm, is per se fraudulent and void. When such illegal trust is apparent upon the face of the instrument, the court, as a matter of law, will declare the instrument fraudulent, and in such case the question of fraud is a question of law, and not of fact to be passed upon by a jury. Although a jury in a justice's court are judges of the law as well as fact, yet if the justice declines to charge them on a point of law, and they assume to judge of the law, and judge wrong, the court of common pleas, upon certiorari, may review such error, and reverse their judgment. Judson v. Gardner and Payne, ASSIGNEE. 424 The legal liability of the assignee of a lease, containing a covenant to insure, to perform the covenants of the lease, will not deprive him of the right to purchase the fee, and take the advantage of a forfeiture caused by a breach of the covenant to insure, if another party has become bound in equity to perform the covenant. A party will not be relieved against a forfeiture caused by the breach of a covenant to insure, upon the ground of his having mistakenly supposed, in consequence of a representation made to him by the solicitor of the person who is to take advantage of the forfeiture, that the premises were insured; the representation made being at the time strictly true. Wetherhill v. Naylor, 155 ATTORNEY. Where an attorney by his conduct induces a sheriff to make a wrongful seizure, under a writ of execution, he is equally liable with the sheriff in an action of trespass. Rowles v. Senior and others, 274 The attorney to a projected railway company held himself out as responsible for all charges and expenses incurred before the deposites were paid, and in order to induce persons to put down their names on the provisional committee, he gave to several a guarantee to bear them harmless against such expenses. The scheme was afterwards abandoned. In an action by the attorney for money paid against a provisional director, to whom he had not given a guarantee, a verdict was found for the defendant, and the court refused to rule for a new trial, on the ground that the plaintiff had held himself responsible for these expenses, and must take the consequences. Lloyd v. Harrison, 358 The plaintiff (an attorney) entered into an agree ment in writing with his client, (the defendant,) who claimed to be entitled to a fund in court, by which agreement, in consideration of the plaintiff obtaining sureties to join in certain administration bonds, and in order to indemnify these sureties, the defendant agreed to allow the plaintiff to retain for six years a specified portion of the fund to be recovered; and, further, as a bonus or consideration for the expenses incurred by, and the professional labor of, the plaintiff, to pay to him 101. per cent. on the sum recovered, exclusive of law charges. To a bill, filed by the plaintiff for the specific performance of this agree ment, the defendant filed a general demurrer, and the Lord Chancellor (affirming the decision of the Vice Chancellor of England) allowed the demurrer. Strange v. Brennan, 389 An attorney for the defendant in a feigned issue undertook to pay a given sum of money on a given day. The money was not demanded on the day specified, but repeated applications were subsequently made for the money in vain. Between three and four years after the money be. came due, the attorney was compelled to pay it. Titterton v. Shepherd, 406 AWARD. 277 After declaration (in which there were two counts) but before plea, "all matters in difference in the cause" were referred by a judge's order to the award of an accountant, &c. The award (not saying that it was made "of and concerning the premises,") directed that the one party should pay to the other a certain sum, without stating upon what account. Held, bad, inasmuch as it was uncertain upon what account the sum awarded was to be paid. Crosby v. Holmes, An action of covenant on an apprentice deed having come on for trial, was referred, together with two other actions, in one of which the infant apprentice sued by his next friend; the costs of the cause to abide the event, and the costs of the reference and award to be in the discretion of the arbitrator. The arbitrator awarded that the verdict in the cause should be entered for the defendant, and that the infant should pay the costs of the reference. Held, that the award was good. Proudfoot v. Boile, BAILOR AND BAILEE. 283 If an undertaking be given by an attorney whilst acting in the capacity of attorney, he may be called upon summarily to perform it, although his Duties of the bailee in respect of the instructions services were gratuitous. Fairthorne, in re, 275 of the bailor. 100 The discharge and certificate of a bankrupt is no bar to a debt contracted by means of a breach of trust. Flagg v. Ely, Where a suit is commenced against a bankrupt subsequent to his obtaining his discharge, he should set up his discharge as defence. And where a suit is pending at the time his discharge is obtained, he should set up his discharge as a bar to the further continuance of the suit. Where a bankrupt has lost the benefit of his discharge by his own neglect, the court will not release him on motion; but where a judgment or decree is obtained subsequent to the discharge, which is binding on the bankrupt and his property, although he has no opportunity to set up his discharge, the court will relieve him upon a summary application. It is irregular to issue execution upon a judgment or decree which is prima facie no longer in existence as a subsisting debt against a bankrupt or his property, without previously applying to the court upon notice to him. The appropriate remedy of a complainant pointed out where he wishes to contest the validity of the bankrupt's discharge and certificate. Alcot v. Avery et al, 172 Where the testator devised to the bankrupt the notes and obligations held against him, the executor must be considered as standing in the place of the bankrupt, and he may be a witness against him, if called by the objecting creditors. Where a bankrupt, prior to the passage of the Bankrupt Act, causes notes to be sued in the name of a third person, and in his schedule makes no mention of the property, the court will consider such third party as trustee of the bankrupt, to the amount of his interest in the property. Where a bankrupt, who was indebted to his brother in a small amount, caused certain notes to be sued in his name, some years prior to the Bankrupt Act, which suit was unknown to the brother till after the bankruptcy, and no mention is made of the property in the schedule, the court held that this transfer could not be regarded in the nature of a gift, and the omission to schedule the property, if fraudulently done, would be sufficient to defeat his discharge. Omitting to enter on the schedule certain notes and other property proved to have been in his possession at and since the bankruptcy, if done for the purpose of wilfully concealing the property is a bar to a certificate of discharge. As a general rule, a creditor of a bankrupt is inadmissible as a witness to defeat his discharge. So also is an executor, or legal representative of a creditor. When, however, the executor stands in the position of a stake-holder, or trustee for the bankrupt, he may be a witness against him. Perley, in re, 254 Assignees in bankruptcy are chargeable with interest on all money which they may have received, if not paid into the registry within sixty days after they have received it. Thorp, in re, 377 BOND. Liability of navy agent on his official bond for commissions, &c., &c, The U. S. v. Jarvis, 298 CHAMPERTY. The sale of land by the owner of the soil where the same at the time of the sale is subject to an easement, to the right to overflow the same by the waters of a mill-pond, is not a case within the statute of champerty. A note based upon the consideration of a sale of land under circumstances which render the transaction one within the statute against champerty, is not a valid one, and no action can be sustained upon it. Witter v. Blodget, See Strange v. Brennan, COMPOUNDING FELONY. 263 389 penalties, each of them being of a like character, | and there was a joinder in demurrer to the declaration in each case, the court refused an application, which had been made before the judge at Chambers, before the causes were noticed by the defendant, at the instance of the plaintiff, and continued over to the April term, to make an order that all the cases but one should be stayed, and that they should abide the event of the one argued. Ferrett and an'r v. Atwill, CONTEMPT. 215 Under the usual order of reference to appoint a receiver in a creditor's suit, the complainant is not authorized to examine the defendant, for the mere purpose of ascertaining whether he had not made a fraudulent assignment of his property previous to the commencement of the suit, unless such property is still in his possession or under his control. Whether the receiver has the power, under any clause of such an order, to examine the defendant or any other person as a witness to establish the fact of such a fraudulent sale or assignment, quere. Where property is not in the possession or under the control of the defendant, the proper course for the complainant is to make the grantee or assignee a party to his suit. Form of order of reference to appoint a receiver where the defendant appears but does not give the consent under the 191st rule. What questions defendant is bound to answer on his examination before master. Green et al v. Hicks, 133 Judgments founded upon attachments-docketing judgments. Corey v. Cornelius, 258 In a judgment creditor's bill, to reach things in action, on the return of an execution unsatisfied, if the judgment were recovered in the court of common pleas, the bill must allege: either that the debtor resided, at the time the execution issued, in the county in which the judgment was recovered; or, that the judgment had been docketed and an execution issued in some other county where the defendant was residing; or it must be shown that for some other cause, the remedy at law was exhausted by issuing an execution in the county where the judgment was recovered. An allegation in the bill that defendant resides in a place, has reference to the time of filing the bill, and not to the time of issuing execution. Wheeler v. Heermans and Haight, 382 DEPUTY COUNTY CLERK. Under the act of 1831, which authorizes the deputy clerk of the county to perform the duties of such clerk whenever the clerk shall be absent from his office, the deputy cannot act, although the clerk may be without the office, provided the clerk is at the time in the place in which the office is situate, the word "absent" under this statute must be construed "at a distance," or, "a withdrawal of the clerk from the performance of his official duties." The deputy clerk of the county has power, under the statute, to take an affidavit whenever the clerk of the county is absent from his office, or by reason of sickness or other cause, is incapable of performing the duties of his office, or whenever there is a vacancy in the office. The case of Norton v. Colt & Nowlan, 2d Wend. R. 250, reviewed and explained. The word " may," in a statute, means "must" whenever third persons or the public have an interest in having the act done, which is authorized by the use of such permissive language. Lucas v. Ensign, 142 DISTRESS. Articles exempt from distress for rent aud sale under execution. Barnes v. Anderson, DONATIO CAUSA MORTIS. 346 375 ELECTIONS OF TOWN AND CHARTER | Where there is a written warranty of a chattel OFFICERS. The 13th section of the title 7 of the act of 1842, respecting elections, does not apply to elections for town and charter officers. It relates exclu sively to general elections, or special elections for the election of that class of officers usually elected at a general election. An offer to vote, when not qualified, at a general election, with knowledge of such disqualification, is an offence within the 13th section of said act. On the trial of an indictment for such an offer to made by the vendor, evidence of declarations made by the vendor antecedent to the written warranty, are not admissible in evidence, all that was said anterior to the written agreement is deemed as merged in the latter. Where a jury in a justice's court have passed upon a question of fact, in respect to which there is evidence on both sides of a contradictory character, this court, on certiorari, have no right to interfere with the judgment, although it may think that the jury arrived at a wrong conclusion. Smith v. Smith, vote when not qualified, with knowledge of such A Proof that an election was in fact held, and a board EVIDENCE. 344 In an action, as executor, for money had and received, the plaintiff' proved a notice to produce the probate of the will of J. G., of which the defendant was executor, and under which the plaintiff's testatrix claimed the money which was the subject of the action, and also put in a judge's order to admit an office copy of the will. The will not being produced, the plaintiff tendered in evidence an official copy thereof, purporting to be signed by the register of the ecclesiastical court, annexed to which was a document purporting to be a copy of the act of the ecclesiastical court:-Held, that this being a copy of an official act, was admissable as secondary evidence against the defendant. Waite v. Gale, 35 A joint-stock banking company was established in 1836, by a deed, which provided, that the business of the company should be carried on at D., and such other places as might afterwards be chosen with the consent of all the directors. In 1839 a branch bank was established at C., which continued until 1843, when an action was brought against one of the shareholders, who executed the deed of 1836, to recover a sum of money deposited at it:-Held, that it might be presumed, either that the branch bank had been established in compliance with the provisions of the deed, or that the defendant knew of and was a consenting party to carrying on business at it. Per Pollock, C. B., and Platt, B.; dubitante Rolfe, B. Crellin v. Calvert, 39 A promise made by the drawer to pay a foreign bill of exchange, although such promise be made conditionally, is evidence that protest of such bill has been made, and notice thereof given to him. Campbell v. Webster, 79 The declarations of a payee of a note are not admissable as against the endorsee in an action by the latter against the maker. 106 letter was put into a box in an attorney's office, and the course of business was, that a bell-man of the post office called to take the letters from the box :-Held sufficient prima facie evidence of its having reached its destination. Skilbeck v. Garbett, 120 The court will not receive passages cited from the acknowledged authorities for the law of a foreign country, upon a question arising in respect to that law, as evidence of what the foreign law upon that question is, unless the particular passages are deposed to by a witness skilled in the law of that country upon the question in dispute. Lord Nelson v. Lord Bridport, 154 An admission of a party as to the law is not evidence, which a justice is bound to receive on a trial of facts. Bush v. Hewett, 384 On application for payment out of court of a fund belonging to a married woman, the court will not dispense with the production of a register of the marriage, although the marriage may have been solemnized abroad; unless evidence is produced to show that a certificate of the register could not be obtained. Jope v. Pearce, EXECUTOR. 432 FALSE IMPRISONMENT. A part of a bridge ordinarily used as a public highway, was appropriated for seats to view a regatta on the river. Plaintiff insisted on crossing along that part. Defendant, being clerk of the bridge company, placed two policemen to prevent him, and he was told he might go back into the carriageway, and proceed on the other side of the bridge if he pleased. Plaintiff would not do so, but remained where he was about half an hour. One of them still requested him to go back; he endeavored to force his way, and in so doing assaulted defendant, and thereupon he was taken into custody. Held, by Patteson, Williams, and Coleridge, J. J., that, when plaintiff assaulted defendant, there was an obstruction of passage only, and not an imprisonment; and that plaintiff ought, therefore, to have replied a right of footway, and obstruction thereof by defendant. Held, by Lord Denman, C. J., that there was such a restraint of plaintiff's liberty by force as constituted an imprisonment. Bird v. Jones, 158 If an officer who has not jurisdiction issues a warrant under which a party is arrested or imprisoned, all persons who are instrumental in procuring it to be issued are trespassers, and liable to an action for false imprisonment. The question of an arrest by submission to the authority of the officer, is a mixed question of law and fact. Lansing v. Case and Smith, 221 The cases relative to an arrest by submission to the authority of the officer, reviewed and explained. ib. FALSE REPRESENTATION. The plaintiff declared that the defendants, who were husband and wife, had represented to the plaintiff that the wife was entitled to distrain certain goods for rent due to the wife, and that the defendants had employed plaintiff, as bailiff, to distrain for the rent. The declaration then negatived the truth of this representation, and stated damage which the plaintiff had in consequence sustained :-Held, that the action could not be maintained without proof that the falsehood of the representation was known to the party making it, or that the representation was made with an intent to deceive. Rawlins v. Bell and an'r, 125 FIRE POLICY OF INSURANCE. After a master's sale on a foreclosure of mortgage of the insured premises, and before confirmation of the report of sale, the buildings were destroyed by fire-Held, that this did not destroy the interest of the assured, nor did it work such a transfer or change of title as would, under the conditions of insurance, render the policy void. McLaren v. The Hartford Fire Ins. Co., 137 FRAUD. An action for money had and received will not lie to recover the amount levied under a fi fa., on the ground that the warrant of attorney upon which the judgment was entered up had been obtained by fraud. De Medina v. Grove, 318 HEIR. The right of the creditor of the ancestor to collect his demand out of the land descended to the heir, can only be enforced in the mode pointed out by the Revised Statutes. If instead of obtaining a decree or judgment against the heir, the creditor of the ancestor takes from the heir a deed for the land, in satisfaction of the demand due to him from the ancestor, the title under such deed will be subordinate to title obtained by a creditor of the heir under a judgment and execution against the heir, where such judgment was docketed prior to the exe The provisions in the statute regulating descents, for bringing advancements into hotch-pot in the division of the real estate, does not apply where there is a will disposing of a part of the decedent's property, either real or personal. It relates to a total intestacy only. This was held in a case where there was a will which was decreed to be invalid, except as to some specific legacies, and a charge for the reasonable support of the widow. The reasonable support of the widow under the will, is not to be determined by the amount necessary, for her bare subsistence; but regard must be had also to the extent and income of the estate. Thompson and wife v. ex'rs of Carmichael, 134 HUSBAND AND WIFE. The husband of a feme covert entitled to separate property settled to her separate use, without power of anticipation, is not entitled to the interference of the court for the appointment of a receiver, on his behalf, of the rents and profits of such property. Willes v. Cooper, 270 Duty of husband and wife to live together, where there is no cause for separation or divorce, although the court of chancery cannot compel them to do so. The rights of a husband in the property of his wife, given to him by the common law, in virtue of their marriage, may be parted with or modified by his voluntary deed poll of post nuptial settlement, even without any consideration to sustain it, if executed and not merely executory. His prerogative subsists, notwithstanding, to the use of the property when in his wife's possession. Cruger v. Douglas, INDICTMENT. 55 In an indictment it is sufficient to describe the prosecutor according to the name by which he is The Queen v. commonly and best known. Gregory, 231 The second count of an indictment stated, that defendant did, whilst B. S., being a person of unsound intellect, and incapable of taking care of himself, was under the care, custody and control of defendant, "keep, confine, and imprison said B. S.," &c. :-Held bad, for want of a positive averment, that B. S. was under the care, custody, and control of defendant. The third count stated, that B. S. was the illegiti mate son of defendant, and of unsound intellect, and incapable of taking care of himself, and resi ded with defendant, and that defendant had sufficient means for the support and maintenance of herself and B. S., whereupon it became and then |
