« 이전계속 »
See ConstitUTIONAL LAW, A, 9.
See APPEAL, 1.
1. Where the certificate of authentication of a record transmitted to this
court on appeal begins by setting out the name and office of the clerk
of the court below as the maker of the certificate, and has appended
to it the seal of the court, but lacks the signature of the clerk, this
court has jurisdiction of the appeal; and, if no motion to dismiss is
made until it is too late to take a new appeal, will permit the certifi-
cate to be amended by adding the clerk's signature. Idaho and Oregon
Land Improvement Co. v. Bradbury, 509.
2. Under the act of April 7, 1874, c. 80, $ 2, an appeal, and not a writ of
error, lies to this court from the decree of a territorial court in a pro-
ceeding in the nature of a suit in equity, although issues of fact have
been submitted to a jury. Ib.
See EVIDENCE, 2 ; JURISDICTION, A, 2;
INJUNCTION, 1, 3; PRACTICE, 5.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
1. In the absence of a statute forbidding it, an assignment for the benefit
of creditors may be made to an assignee who is not a citizen or resi-
dent of the State where the assignment is made or the debtor resides.
Bachrack v. Norton, 337.
2. It having been held in Cunningham v. Norton, 125 U. S. 77, that the act
of Texas of March 24, 1879, was intended to favor general assignments
by insolvents for the benefit of their creditors, and to sustain them
notwithstanding technical defects; it is now held, that there is noth-
ing in the sixth section of the act, directing the assignee's bond to
be filed with the county clerk of “his” county, to indicate a legislative
intent that an assignee under such an assignment must necessarily be
a citizen or resident of the State. lb.
3. Cunningham v. Norton, 125 U. S. 77, affirmed to the point that the act
of the legislature of Texz. of March 21, 1879, in regard to assignments
by insolvent debtors for the benefit of their creditors was intended to
favor such assignments; and that a provision in such an assignment,
void in itself, did not necessarily vitiate the assignment, or prevent its
execution for the benefit of creditors. Muller v. Norton, 501.
4. A provision in an assignment for the benefit of creditors that the
assignee shall at once take possession of all the assigned property
“and convert the same into cash " as soon as and upon the best terms
possible, can hardly be construed into a discretionary authority to sell
on credit. 16.
5. In Texas an assignment for the benefit of creditors, under the statute,
may be made to more than one assignee. Ib.
An action by a municipal corporation to recover from a street railroad
company the cost of maintaining pavements in the street which the
company was, by its charter, bound to maintain, is not an action upon
the statute, but one in assumpsit. Metropolitan Railroad Co. v.
District of Columbia, 1.
See INTERNAL REVENUE.
1. The right of action of a plaintiff under a title derived from an assignee
in bankruptcy, to redeem from a sale under a deed of trust, was held
in this case to be barred by the two years' limitation contained in
$ 5057 of the Revised Statutes. Greene v. Taylor, 415.
2. That section does not apply only to a suit to which the assignee in
bankruptcy is a party; but it applies to a case where nearly a year
of the two years had run against the right while the assignee owned
it, after his appointment, and the rest of the two years ran against it
in the hands of the plaintiff, his transferee, so that more than two
years elapsed between such appointment and the bringing of the suit
to redeem, and the property covered by the trust deed was held
adversely by the defendant, under a sale under the trust deed, for
more than two years before the bringing of that suit. Ib.
3. On the facts of this case there was no fraudulent concealment by the
defendants from the assignee in bankruptcy or the plaintiff. Ib.
4. Sufficient information as to the trust deed, and its contents, was given
in the bankruptcy schedule, filed more than eleven months before the
assignee was appointed, and more than one month before the sale
under the trust deed, to put the assignee in bankruptcy and the
plaintiff on inquiry. 16.
5. Moreover it appeared that, two days before the sale under the deed of
trust, the plaintiff knew of the contents of the schedule in bankruptcy
and who held the debt secured by the deed of trust. 1b.
6. The plaintiff having, by a petition to the bankruptcy court, procured
the sale of the property by the assignee in bankruptcy, and the appli-
cation of its proceeds on the debt on which his suit to redeem was
founded, waived any right to redeem arising under a judgment before
recovered by him for his debt. Ib.
7. On the facts as stated in the opinion of the court it is held, that this
suit is one between an assignee in bankruptcy and one claiming an
adverse interest touching the property which is the subject of contro-
versy, within the meaning of Rev. Stat. & 5057, prescribing a limita-
tion for the commencement of such an action. Avery v. Cleary, 604.
8. The omission by a bankrupt to put upon his schedules, or the omission
by him or by his administrator to disclose to his assignee in bank-
ruptcy the existence of policies of insurance on his life which had
been taken out by him, and had, before the bankruptcy, been assigned
to a trustee for the benefit of his daughters, does not amount to a
fraudulent concealment of the existence of the policies, so as to take
an action against the administrator (who was also such trustee and
guardian of the daughters) to recover from him the amount of insur-
ance paid to him as trustee, out of the operation of the limitation
prescribed in Rev. Stat. & 5057. Ib.
9. Mere ignorance of the existence of a cause of action by an assignee in
bankruptcy does not remove the bar against such action prescribed
by a statute of limitation; but, in order to set aside such bar, within
the rule as announced in Bailey v. Glover, 21 Wall. 342, there must
be no laches on the part of the assignee in coming to the knowledge
of the fraud which is the foundation of the suit. 16.
See EVIDENCE, 1.
See ConstiTUTIONAL LAW, A, 7.
CASES AFFIRMED OR APPROVED.
Vicksburg, Shreveport & Pacific Railway Co. v. Dennis, 116 U. S. 665, ap-
proved and applied. Yazoo & Mississippi Valley Railroad v. Thomas,
Yazoo & Mississippi Valley Railroad Co. v. Thomas, 132 U. S. 174, affirmed
and applied. Yazoo & Mississippi Valley Railroad Co. v. Board of Levee
Dahl v. Raunheim, 132 U. S. 260, affirmed and applied. Dahl v. Montana
('opper Co., 264.
Feibelman v. Packard, 109 U. S. 421. Affirmed in Bachrack v. Norton,
T'aylor v. Ypsilanti, 105 U. S. 60. Affirmed in Young v. Clarendon Town-
Cunningham v. Norlon, 125 U. S. 77. Affirmed in Bachrack v. Norton, 337 ;
and in Muller v. Norton, 501.
Avery v. Cleary, 132 U. S. 604. Affirmed in Cleary v. Ellis Foundry Co.,
The present case is controlled by that of Hartranft v. Langfeld, 125 U. S.
128. Robertson v. Edelhoff, 614.
Clayton v. Utah, 132 U. S. 632, affirmed and applied to this case. Jack v.
Utah Territory, 643.
McArthur v. Scott, 113 U. S. 340, distinguished from this case.
Texas and Pacific Railway Co., 662.
CLAIMS AGAINST THE UNITED STATES.
See CONTRACT, 4, 5.
CONFLICT OF LAW.
See JURISDICTION, B, 2, 3, 4.
A. OF THE UNITED STATES.
1. The statutes of the State of Texas of July 14, 1879, and March 11,
1881, providing for the sale of a portion of the vacant and unappro-
priated public lands of the State, did not operate to confer upon a
person making application under them for a survey of part of said
lands and paying the fees for filing and recording the same, a vested
interest in such lands which could not be impaired by the subsequent
withdrawal of them from sale under the provisions of the statute of
January 22, 1883. Campbell v. Wade, 34.
2. Neither the charter of the Pennsylvania Railroad Company, contained
in an act of the legislature of Pennsylvania, passed April 13, 1846,
(Laws of 1846, No. 262, p. 312,) nor the acts supplementary thereto,
nor the act of that legislature, passed May 16, 1857, (Laws of 1857,
No. 579, p. 519,) constituted such a contract between the State and
the company as exempted the latter from the operation of $ 8 of Article
14 of the constitution of Pennsylvania of 1873, requiring that corpora-
tions invested with the privilege of taking private property for public
use should make compensation for property injured or destroyed by
the construction or enlargement of their works, highways or improve-
ments; nor did such constitutional provision, as applied to the com-
pany, in respect to cases afterwards arising, impair the obligation of
any contract between it and the State. Pennsylvania Railroad Co. v.
3. The company took its original charter subject to the general law of the
State, and to such changes as might be made in such general law, and
subject to future constitutional provisions and future general legisla-
tion, since there was no prior contract with it exempting it from liabil-
ity to such future general legislation, in respect of the subject matter
4. Exemption from future general legislation, either by a constitutional
provision or by an act of the legislature, cannot be admitted to exist,
unless it is expressly given, or unless it follows by an implication
equally clear with express words. Ib.
5. If, in a trial in a state court of a person accused of crime, the jury is
brought into court; and, on being polled it is disclosed that they were
agreed upon a verdict of guilty under two counts in the indictment,
but could not agree as to the other counts; and, in the presence of the
jury, the prosecuting attorney proposes to enter a nolle prosequi as to
those counts; and, the jury having retired, the court permits this to
be done; and the jury, being then instructed to pass only upon the
remaining counts, return a verdict of guilty as charged in the indict-
ment; all this, however irregular, does not amount to a deprivation of
the liberty of the defendant without due process of law.
North Carolina, 131.
6. The constitutionality of the act of the legislature of Michigan of March
22, 1869, which is considered in this case was fully settled in the case
of Taylor v. Ypsilanti, 105 U. S. 60, to which the court adheres.
Young v. Clarendon Township, 340.
7. The legislature of California, in 1878, enacted a statute which provided
for the payment of the police force of San Francisco at a rate “which
should not exceed $102 a month for each one,” subject to the condition
that the treasurer of the city and county “should retain from the pay
of each police officer the sum of two dollars per month to be paid into
a fund to be known as the police life and health insurance fund.”
The act further provided that upon the death of any member of the
police force after June 1, 1878, there should be paid by said treasurer
out of said life and health insurance fund to his legal representative
the sum of $1000. On the 4th of March, 1889, this act was repealed
and another statute enacted creating “a police relief and pension
fund,” and transferring to it the police life and health insurance fund,
which had been created under the other act, and making new and dif-
ferent provisions for the distribution of the new fund. W. was a
police officer of the city and county from 1869 until his death on
March 13, 1889, after the repealing act had gone into operation. His
administrator sued to recover $1000 from the police life and health