See CONSTITUTIONAL LAW, A, 9.
AMENDMENT.
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.
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. Ib.
3. Cunningham v. Norton, 125 U. S. 77, affirmed to the point that the act of the legislature of Texa of March 24, 879, 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.
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.
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. Ib.
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. Ib.
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. lb.
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. lb.
CALIFORNIA.
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 Yazoo & Mississippi Valley Railroad Co. v. Board of Levee Commissioners, 190.
Dahl v. Raunheim, 132 U. S. 260, affirmed and applied. Dahl v. Montana Copper Co., 264.
Feibelman v. Packard, 109 U. S. 421. Affirmed in Bachrack v. Norton,
Taylor v. Ypsilanti, 105 U. S. 60. ship, 340.
Affirmed in Young v. Clarendon Town-
Cunningham v. Norton, 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. 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.
COMMON CARRIER.
See RAILROAD.
CONFLICT OF LAW. See JURISDICTION, B, 2, 3, 4.
CONSTITUTIONAL LAW.
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. Miller, 75.
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 involved. Ib.
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. Cross v. 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
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