A suit against a National bank is abated by a decree of a District Court
of the United States dissolving the corporation and forfeiting its
rights and franchises, rendered upon an information against the bank
filed by the Comptroller of the Currency. National Bank v.
An action will not lie on claims which by and in themselves are valid and
capable of sustaining an action if they are inseparably blended and
confused with others which are void. Trist v. Child, 441.
ADMIRALTY. See Admiralty Law of the United States; Appeal; Col-
lision; Practice, 12, 13; Reversal, 1.
By the rule of, both parties being in fault, the damages are to be divided.
Atlee v. Packet Company, 889.
ADMIRALTY LAW OF THE UNITED STATES. See Constitutional
Law, 6, 7.
1. Its special character declared; not necessarily identical, throughout,
with the general maritime law. Its true sources set forth. The
question as to the true limits of maritime law and admiralty jurisdic-
tion a judicial question. The sources for decision stated. The Lotta-
wanna, 558.
2. By the admiralty law of the United States, material-men furnishing
repairs and supplies to a vessel in her home port, do not acquire
thereby any lien upon the vessel. Ib.
3. Liens granted by the laws of a State in favor of material-men for fur-
nishing necessaries to a vessel in her home port in the said State are
valid, though the contract to furnish the same is a maritime contract,
and can only be enforced by proceedings in rem in the District Courts
of the United States. Ib.
4. Any person having a specific lien on, or a vested right in, a surplus
fund in the registry of the admiralty court, may apply by petition
for the protection of his interest under the forty-third admiralty rule.
ADMIRALTY LIEN. See Admiralty Law of the United States, 2.
Material-men furnishing repairs and supplies to a vessel in her home port,
do not acquire thereby any lien upon the vessel by the maritime law
of the United States. The Lottawanna, 559.
To make title by virtue of, the full and completed term of time requisite,
must be positively, as distinguished from conjecturally, shown. Gros-
holtz v. Newman, 481.
ALLEGATA ET PROBATA. See Pleading, 2.
ANSWER IN CHANCERY. See Husband and Wife, 2.
On a bill to establish a deed of trust to a third party, and now in the de-
fendant's possession, which deed the bill alleges that the defendant
executed and delivered, a denial by the defendant, in an answer re-
sponsive to the bill, that he did deliver it, comes to nothing if he ad-
mit in the same answer certain facts, which of themselves may, under
the circumstances of the case, constitute a delivery. Adams v. Adams,
185.
APPEAL. See Bankrupt Act, 14; Construction, Rules of, 2; Court of
Claims; Supersedeas Bond.
In cases of clear error of both the Circuit and the District Court, in an
admiralty case involving issues of fact alone, this court will reverse,
though except in such cases it will not do so where both courts have
agreed on their view of the facts. The Lady Pike, 1.
ASSIGNMENT OF ERROR. See Practice, 1, 2.
ASSISTANCE, WRIT OF.
Its nature and office declared; and the cases stated when a party is and
when he is not entitled to its aid. Terrell v. Allison, 289.
A special case in which it was declared allowable, as against a person who
had taken the cut timber on land and appropriated it to his own use.
Jennisons v. Leonard, 303.
ATTORNEY AT LAW. See Confidential Relation; Pleading, 4.
1. Cannot be charged with negligence when he accepts as a correct exposi-
tion of the law a decision of the Supreme Court of his State upon the
question of the liability of stockholders of corporations of the State, in
advance of any decision thereon by this court. Marsh v. Whitmore, 178.
2. Who appears for a party has, presumptively, the right to do so. Hill
v. Mendenhall, 453.
BANKERS And brokerS. See "Capital;" Government Bonds and
Notes, 3, 4.
BANKRUPT ACT. See Evidence, 7.
1. The clause of the, limiting the commencement of actions by and against
the assignee in bankruptcy to two years after the right of action ac-
crues, applies to all judicial contests between the assignee and any
person whose interest is adverse to his.
Bailey, Assignee v. Glover et
al., 842.
2. But where the action is intended to obtain redress against a fraud con-
cealed by the party, or which from its nature remains secret, the bar
does not commence to run until the fraud is discovered. Ib.
BANKRUPT ACT (continued).
3. And this doctrine is equally applicable on principle and authority to
suits at law as well as in equity. Bailey, Assignee v. Glover et al., 342.
4. When a person, borrowing money of another, pledges with that other
"bills receivable" as collateral security for the loan (many of them
overdue), the pledgee may properly hand them back to the debtor
. pledging them, for the purpose of being collected, or to be replaced by
others. All money so collected is money collected by the debtor in
a fiduciary capacity for the pledgee. And if a portion of the col-
laterals be subsequently replaced by others, the debtor's estate being
left unimpaired, and the transaction be conducted without any pur-
pose to delay or defraud the pledgor's creditors, or to give a prefer-
ence to any one, the fact that proceedings in bankruptcy were insti-
tuted in a month afterwards and the pledgor was declared a bank-
rupt, will not avoid the transaction. Clark, Assignee, v. Iselin, 860;
Watson v. Taylor, 878.
5. The giving, by a debtor, for a consideration of equal value passing at
the time, of a warrant of attorney to confess judgment, is not an act
of bankruptcy, though judgment be not entered, but on the contrary
such warrant be kept in the creditor's own custody, and with its ex-
istence unknown to others. The creditor may enter judgment of
record when he pleases (even upon insolvency apparent), and issue
execution and sell. Ib.
6. However, the fact that a debtor signed and delivered to his creditor, a
judgment note payable one day after date, giving to him a right to
enter the same of record and to issue execution thereon without delay
for a debt not then due, affords a strong ground to presume that the
debtor intended to give the creditor a preference, and that the creditor
intended to obtain it; and it is unimportant whether the preference
was voluntary or given at the urgent solicitation of the creditor.
Clarion Bank v. Jones, Assignee, 325.
7. The giving of a warrant to confess a judgment may be a preference for-
bidden by the thirty-fifth section of the Bankrupt Act, though not
mentioned in that section in the specific way in which it is in the
thirty-ninth section. Ib.
8. A creditor having by execution obtained a valid lien on his debtor's
stock of goods, of an amount in value greater than the amount of the
execution, may, up to the proceedings in bankruptcy, without vio-
lating any provision of the Bankrupt Act, receive from the debtor
bills receivable and accounts due him, and a small sum of cash, to the
amount of the execution; the execution being thereupon released, and
the judgment declared satisfied. Clark, Assignee, v. Iselin, 360.
9. Where, in the case of a person decreed a bankrupt, a question of insol-
vency at the particular date (when the debtor gave a security alleged
to be a preference) is raised, the court may properly charge (much
other evidence having been given on the issue), "that if the jury find
that the quantity and value of the assets of the debtor had not mate
rially diminished from the day when the security was given till the
day when he filed his petition in bankruptcy, and the day when he
BANKRUPT ACT (continued).
was adjudged a bankrupt on bis own petition, they may find that he
was insolvent on the said first-mentioned day, when he gave the
security." Clarion Bank v. Jones, 325.
10. When the issue to be decided is whether a judgment against an insol-
vent was obtained with a view to give a preference, the intention of
the bankrupt is the turning-point of the case, and all the circum-
stances which go to show such intent should be considered. Little,
Assignee, v. Alexander, 500.
11. In a suit by the assignee to recover the proceeds of the bankrupt's prop-
erty, sold under a judgment given in fraud of the Bankrupt Act, the
measure of damages is the actual value of the property seized and
sold; not necessarily the sum which it brought on the sale. The
sheriff may be asked his opinion as to such actual value. Clarion
Bank v. Jones, 825.
12. Where one creditor has been induced by fraudulent representations of
another creditor, who wishes to get into his own hands all the prop-
erty of their common debtor, to release his debt, and the second cred-
itor does so get the property, and thus obtains a preference, the cred-
itor who has been thus, as above said, induced to release his debt,
may disregard his own release, and petition that his debtor be decreed
a bankrupt. Michaels et al. v. Post, Assignee, 398.
18. If, on a petition and other proceedings regular in form, a decree in
bankruptcy is made in such a case, and an assignee in bankruptcy
is appointed in a way regular on its face, the decree in bankruptcy,
though it be a decree pro confesso, cannot, in a suit by the assignee
to recover from the preferred creditor the property transferred, be
attacked on the ground that the party petitioning had released his
debt, was no creditor, that his petition was accordingly fraudulent,
and that the decree based on it was void. Ib.
14. Under the eighth section of the Bankrupt Act, which enacts that "no
appeal shall be allowed in any case from the District to the Circuit
Court unless it is claimed and notice given thereof, . . . to the
assignee... or to the defeated [sic] party in equity, within ten days
after the entry of the decree or decision appealed from,” the omission to
give the notice within the ten days specified is fatal to the appeal.
Wood v. Bailey, Assignee, 640.
15. The word "defeated" in the above quotation, should be construed as
meaning the "opposite," "adverse," or "successful" party. Ib.
16. Under the fourteenth section of the Bankrupt Act, an attachment
which under State laws is a valid lien, laid more than four months
previously to the proceedings in bankruptcy begun, is not dissolved
by the transfer to the assignee in bankruptcy. And if such assignee
do not intervene, but allow the property to be sold under judgment
in the proceedings in attachment, the purchaser in a case free from
fraud will hold against him; that is to say, the assignee cannot attack
collaterally such purchaser's title. Doe v. Childress, 648.
BILL OF EXCEPTIONS. See Practice, 3, 4, 5, 6, 8.
Effect of signing a bond or other deed, with these left unfilled. Butler v. United States, 273.
BOND. See "Capacity Tax;" Internal Revenue, 3; Replevin Bond. A person who signs, as surety, a printed form of government bond, already signed by another as principal, but the spaces in which for names, dates, amounts, &c., remain blank, and who then gives it to the person who has signed as principal, in order that he may fill the blanks with a sun agreed on between the two parties as the sum to be put there, and with the names of two suretics who shall each be worth another sum agreed on, and then have those two persons sign it, makes such person signing as principal his agent to fill up the blanks and procure the sureties; and if such person fraudulently fill up the blanks with a larger sum than that agreed on and have the names of worthless sureties inserted, and such sureties to sign the bond, and the bond thus filled up and signed be delivered by the principal to the government, who accepts it in the belief that it has been properly executed, the party so wronged cannot, on suit on the bond, again set up the private understandings which he had with the principal. Butler v. United States, 273.
Distinguished from a tax. Railroad Company v. Maryland, 456. BREACH OF CONDITION. See Condition Subsequent.
1. No one can take advantage of the non-performance of a condition subsequent annexed to the grant of an estate in fee by the government, but the government itself; and if it do not see fit to assert its right to enforce a forfeiture on that ground, the title remains unimpaired in the grantee. Schulenberg v. Harriman, 45.
2. The manner in which the reserved right of the grantor for breach of the condition must be asserted so as to restore the estate depends upon the character of the grant. If it be a private grant, that right must be asserted by entry, or its equivalent. If the grant be a public one, the right must be asserted by judicial proceedings authorized by law, or there must be some legislative assertion of ownership of the property for breach of the condition, such as an act directing the possession and appropriation of the property, or that it be offered for sale or settlement. Ib.
CALIFORNIA. See Service of Writ.
A confirmation of a claim to land in California under a grant from the former Mexican government, obtained under the act of Congress of March 3d, 1851, is limited by the extent of the claim made; and the decree of confirmation cannot be used to maintain the title to other land embraced within the boundaries of the grant. Brown v. Brackett 387.
"CAPACITY TAX." See Internal Revenue, 1.
On debt upon a distiller's bond to charge him with non-payment of a capacity tax assessed for an entire month, the distiller may properly
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