English Cases.-In the Exchequer. remain as against the purchaser until he is opposed in so doing, to enforce his right by ejectment. PLATT, B., concurred. Rule absolute. CRIMINAL LAW. breaking and entering the dwelling house A PRISONER was indicted for unlawfully of R. P. "with intent the goods, &c. in said dwelling house to steal, &c."—this was held good, although it did not state whose goods the prisoner intended to steal. Reg. v. Lawes, 1 C. & K. 62. eloquent address of the Honorable DANIEL THE following is an extract from the WEBSTER, in the great Girard case: "When an intellectual being finds himself on this earth, as soon as the faculties of reason operate, one of the first enquiries of his mind is, 'Shall I be here always?' And those "Shall I be here for ever?' writers who have been celebrated for their essays on the dignity of human reason, say that, of all sentient beings, man only is competent of knowing that he is to die. His Maker has made man only able to come to the knowledge of the fact. Before ROLFE, B.-The plea of the defendant is, that his entry into this dwelling house was justified by the writ, and that, before the return of it, he "sold" the premises with the plaintiff's interest in the term. What is the meaning of that word "sold?" I come to the conclusion that it means "bargained and sold," for the law knows nothing of the sale of a chattel real, except by instrument under seal; the knocking it down at an auction is only a contract to sell. So far I agree with the defendant's counsel. This plea does not, indeed, say to whom the premises were sold, and might, for that reason, have been open to special demurrer; but we need not consider that question at present. The defendant, therefore, hav. ing sold and assigned (for that is the mean. ing of the plea) to some person, the plaintiff says in reply, that, after the defendant he knows his origin or destiny, he knows had seized and sold as in the plea mentioned, he remained on the premises an unreasona. ble time. Now what is the sheriff's answer to that? He says that, at the time, the dwelling house was not the dwelling house of the plaintiff; but I think that proposition is not at all made out. It is admitted on the pleadings, that it was the plaintiff's dwelling house until the moment when the sheriff began to execute the writ. Supposing, then, that there were no goods in the house, the sheriff had nothing to do but to sell the debtor's interest in the lease; for the dictum of Buller, J., which has been cited, was not necessary to the decision of the case in which it is found, and, indeed, is so put by him; besides which, he does not state it with much confidence. It is said that that dictum has not been overruled; but has it ever been acted on? It seems a strange proceeding, that, under a fieri facias, a sheriff should be able to exe. cute an habere facias possessionem. I do not think this is so-the word "sell" means bargain and sell; that is, give the purchaser a right to come into possession, and, if he that he is to die! Then comes that most urgent and solemn demand for light that ever entered the mind of man, which is set forth in that most incomparable composition, the Book of Job. For there is hope of a tree, if it be cut down, that it will sprout again, and that the tender branch thereof will bud and bring forth boughs like a plant. But if man die, shall he live again?' And that question nothing but God, and the religion of God, can solve. Religion does solve it, and teaches to every man that the duties of this life have reference to the life which is to come-that moral conduct, founded on this great religious truth, is the end and the object of his destiny. And hence, since the introduction of Christianity, it has been the duty, as it has been the effort of the great and the good, to sanctify human knowledge; to bring it, as it were, to the baptismal-to baptise letters with the sacred influence of the Christian religion; to bring all, the early and the late, to the sacred source, and sanctify them for the use and blessing of the human race." 1 A DIGEST OF THE CASES REPORTED. [For Index to the principal matters, see ante, p. vii.] ACT. ATTACHMENT. What is necessary to state in an affidavit to obtain an attachment under the act to prevent debtors from removing from the Territory of Florida. 111 Sammis v. Kingsley, An attachment of property on mesne process, bona fide made before an act of bankruptcy, or petition by the debtor, is a lien or security upon property valid by the laws of the State of New Hampshire; and within the proviso of the 2d section of the Bankrupt Act. Kittredge v. Emerson, 167 The attachment being saved by the proviso, the ib. means of making it effectual are also saved, The judgment of a court, in one of the United States, having jurisdiction of the cause and of the parties, is binding and conclusive upon parties and privies in every other court in the United States, until it is regularly reversed by some court having jurisdiction for that purpose, ib. But the judgment or order of a court having no jurisdiction of the subject matter, is entirely void, ib. The courts of the United States cannot lawfully treat as nullites the judgments of the courts of the several States, rendered in suits where the latter have jurisdiction of the cause and the parties, even if they are founded upon an erroneous construction of the bankrupt act, or any other statute of the United States. The remedy is by writ of error in the Supreme Court of the United ib. States, Jurisdiction of the District Courts of the United ib. States to issue injunctions, The Courts of the United States and the Judges of these courts are restrained by general laws from issuing injunctions to stay proceedings in any court of a State, ib. The Circuit or District Courts of the United States sitting in bankruptcy, have no authority to stop the execution of the final process of the courts of the several States, or to interfere with the proceeds of a sale of property on the execution, ib. Where cases are pending in the courts of this State (New Hampshire) in which an attachment of property was bona fide made upon the writ before any act of bankruptcy by the defendant, and the defendant has obtained and pleaded his discharge in bankruptcy, the assignee, &c. may be restrained from attempting to procure any process from any court which is not acting under the authority of the State with a view to prevent the entry of judgments in such suits or to prevent the execution of the final process issued 262 merchants or using the trade of merchandise, or retailers of merchandise. Hall and o'rs v. Cooley & Maxwell, upon the judgments when obtained, &c., &c., ib. The doctrine of the preceding case affirmed in re Reed, Attachment for contempt to enforce remedies-The Sequestration when proper-when not allowedwhat may be reached by sequestration. Hosack et al ex'ors v. Rogers et al, The Court of Queen's Bench refused to grant an attachment for contempt against a defendant in a cause who had endeavored to dissuade a party subpoenaed to produce a letter, written by the defendant, from attending the trial as a witness. Schleisinger v. Flerscheim, ATTORNEY. 275 394 282 owner of timber lands who cuts down his trees and manufactures them into lumber for sale, merely as a means of deriving profit for his real estate, as such, does not thereby constitute himself a merchant or trader within the act. But if he carries on this business on a large scale, substantially and independently as a trade, the Eug. lish decisions strongly favor the conclusion that this would bring him within the act; and if it further appears that he has from time to time bought timber lands for the express purpose of manufacturing, and does manufacture lumber from the trees growing thereon, for sale, and in one instance erected a saw-mill on the land pur. chased, and in another instance, in connection with the purchase of timber land, also purchased a large lot of sawed lumber for sale; the case is clear. ib. ACT OF BANKRUPTCY.-An assignment by a trader of all his estate and effects, though made under the pressure of legal process, will constitute an act of bankruptcy; but an assignment by him of a PART only of his estate and effects will not amount to an act of bankruptcy, unless made or given by him voluntarily and in contemplation of bankruptcy. Gassett et al v. Morse & Chap Where a trader has so executed an assignment of all his estate and effects whereby a preference is given to creditors or to particnlar classes of cred. itors to the preference of others, the case comes within that portion of the provision of the second section of the bankrupt act, which declares that all future payments, &c., shall be void and a fraud upon the act. i). Surrender of by principal. See "Habeas Corpus." Although such an assignment be executed more BANKRUPTCY. CONSTITUTIONALITY OF ACT.-The voluntary branch of the act of Congress relating to Bankruptcy, passed 19th August, 1841, is authorised by the Coustitution, and therefore valid. Bronson, J., dissenting. Sackett v. Andross, 11 The voluntary branch of the act applies as well to debts created before as after its passage; Bronson, J., dissenting, PETITIONING.-A voluntary petitioner for the benefit of the bankrupt law cannot withdraw his petition before a decree of bankruptcy, if any of the creditors oppose it, without showing good cause. In re Harris, ib. 152 Such a petitioner is deemed a bankrupt within the purview of the law from the time of the presentation of his petition and before a decree of bank. ruptcy, ib. He becomes personally subject to the jurisdiction of the court from the time of the presentation of his petition, ib. Creditors may intervene for their own interest as well before as after decree, ib. Jurisdiction of the court over bankrupt's property from the time of filing petition, TRIAL BY JURY.-On the trial by jury to determine the right of a bankrupt to a discharge and certificate, the opposing creditor has the affirmative of the issue, per Conkling, J., TRADING.-Livery keepers are not "persons being ib. 155 than two months prior to the institution of any proceedings in bankruptcy, the bankrupt will not thereby be protected either on the question of bankruptcy or on the question of a right to his discharge. The only effect will be to give validity to transactions bona fide entered into so far as it concerns the party dealing with the bankrupt, provided such party had no notice of any prior act of bankruptcy, or of the intention of the bankrupt to take the benefit of the act." ib. ATTACHMENT ON MESNE PROCESS.-See Attach ment. DISCHARGE AND CERTIFICATE.-See Attachment. INJUNCTION.-See Attachment. LIEN OF JUDGMENT CREDITOR'S SUIT-PRIORITY OVER ASSIGNEE IN BANKRUPTCY.-See Lien. PROOF OF DEBTS.-Whether under the bankrupt act the creditors of a partnership can be allowed to prove claims against the separate estate of one of the partners to receive dividends in concurrence with the separate creditors of the partner, when there is no joint estate and no living solv ent partner. Ex parte Dole in re Marwick, 286 If there be any joint fund, however small, such proof cannot be allowed, although such fund may have been created by the separate creditors purchasing some of the partnership assets actually worthless, for the purpose only of creating it; for if there be a joint fund, the court cannot, under the statute, look behind the fact, to enquire how it has been produced. ib BILL OF EXCHANGE. In an action on a bill of exchange, indorsee against indorser, it appeared that the plaintiff was a banker, and that the acceptor of the bill kept an account at his house. On the day the bill became due the plaintiff referred to his books and found no funds to the credit of the acceptor. After business hours, the following notice of dishonor was sent to the defendant: "SirJames Court's acceptance was due this day, and unpaid. I request your immediate attention to it." Held, first, that there was a sufficient presentment of the bill; secondly, that the notice of dishonor was in terms sufficient; thirdly, that it was not sent too early. Bailey v. Porter, 329 CORPORAL PUNISHMENT OF SEAMEN. The master of a vessel has a right in cases of necessity to correct a negligent, disobedient, or mutinous seaman by corporal punishment; but the punishment must be reasonable, and not inflicted with unlawful instruments. Carleton v. Davis, 86 Where a seamen prosecutes the master for an assault, and it is proved that he has been guilty of a fault which would justify some punishment, to entitle himself to damages he must show that the punishment was excessive in its degree, or unlawful in its kind. ib. Construction of the words "shall marry and have a family," in a deed. Spencer v. Spencer, 162 DEMURRAGE. F. chartered a ship from Boston to Havannah and Matanzas and thence to a port in Europe, and it was stipulated that "twenty running days should be allowed for discharging and loading at Cuba, and if more were used, thirty dollars per day demurrage to be paid by F."-the ship reached Havannah during the Easter Holidays, when, according to the usage of the place, the custom house was closed; in consequence of which the brig could not be entered, nor could permission be obtained to unload. The consignee had notice on her arrival. Held, that the twenty running days commenced on the arrival of the brig in port and notice to consignee. Field v. Chase, 8 DEVISE. A testator devised all his real estate to his wife to be at her entire disposal, but if any part thereof remained unsold at the time of his death, he devised the same to his children and grand-children. He died before the Revised Statutes. Held, that the wife took the fee, and that the subsequent limitation over, was void. McDonald and Wife v. Walgrove and o'rs, 208 DOWER. Where H. purchased a farm of C. and loaned the purchase money of M. and paid it to C., received the deed from C., and gave to M. a mortgage on the farm at the same time, to secure the amount; held, that the mortgage was given for the purchase money, and that the widow of H. was not entitled to dower in the farm as against the mortgage. Kittle v. Van Dyck, Where on a purchase of land, a mortgage for the purchase money is given to a third person by arrangement with the seller, the mortgage is paramount to the dower right of the wife of the purchaser. ib. ESTOPPEL. 126 Where a party who is in treaty for the purchase of a bond and mortgage, goes to the mortgagor and obligor and informs him that he thinks of buying them, and asks him whether they are all right, and the mortgagor replies that they are all right and safe, and the party purchases the securities on the strength of such representation; the obligor, in an action on the bond brought for the benefit of such assignee is estopped from setting up, by way of defence, that they were obtained from him by fraud. Hills, Jr., v. Varet, 105 It is immaterial whether the obligor, at the time of such representation was or was not ignorant of such fraud. He is equally estopped. ib. The assignee, however, is only entitled to recover the amount he actually paid for the bond and mortgage, with interest from the time the assignment was made. As between the obligor and assignee it is a question of superior equities and all the assignee can properly ask, is to be indemnified for what he actually paid. ib. Where executors employ an auctioneer in the regular way of business to dispose of their testator's property, and the auctioneer misapplies moneys received by him as deposits, the executors cannot be charged with any such moneys, if they exercise due diligence in endeavoring to get them out of his hands. Edmonds v. Peake, 112 Security by executors for the due administration of their testator's estate-what petition should contain-what proof of the circumstances of the executors is necessary to support application. Colegrove et al ex'rs v. Horton, 203 HABEAS CORPUS. Warrant to apprehend prisoner who had failed to appear to indictment for murder-power of court to admit prisoner to bail before or after indictment. The Territory of Florida v. Mullin, 210 A principal in a ne exeat bond in chancery, at common law, has no right to surrender his surety. But the right to surrender is confined by the Legislature of the State of New York of the 13th May, 1845, not only as to ne exeat bonds given before, but also as to those given after the passage of the act. The act of the 13th May, 1845, conferred upon the principal in such a bond all the power which special bail, or bail to the action had at comme law in civil suits. Such a surrender is not void, because the bail by false promises induced their principal to come within the State. As between creditor and debtor in a civil action, the debtor, if arrested, will not be discharged unless he is brought within the State by compulsory means. According to the law of the State of New York, bail may follow their principal into another State and there seize him. The jurisdiction of the court, in no way, controls the authority of the bail. In re Wolfe, HUSBAND AND WIFE. 383 The mere fact of marriage does not absolutely vest in the husband the right to choses in action be longing to the wife. Hart v. Stevens, 301 A woman, to whom a promissory note had been given for a debt due to her, married with A. B.; he often received interest during her life, but there was nothing to show in what character be received it, nor that he had declared any inten tion, or done any act expressly for the purpose of reducing the note into possession. The wife died-the son took out letters of administration to her estate, and then brought an action on the note. Held, that the husband was a competent witness in this action. ib. |