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gregate did not equal one-third of the en- case that there are five creditors whose tire amount of debts which exceeded the debts exceed two hundred and fifty dolsum of two hundred and fifty dollars. lars, two of whom have joined in this peThey further allege that they have ac- tition. So far as the number is conquired rights, by virtue of their attach-cerned, then, there is no doubt of their ment in the State Court, which will be sufficiency. destroyed by the bankruptcy proceedings, and pray that the order of adjudication may be set aside, for the reason that a sufficiency of creditors did not join in the petition.

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The aggregate of the bankrupt's debt, as disclosed by the petition of Doggett, Bassett & Hills, is four thousand eight hundred and ten dollars and twenty-six

cents.

Held, Brown, J.: 1. Although the proThe aggregate of the debts of the peceedings between the petitioning credit- titioning creditors is sixteen hundred ors and the bankrupt, until the adjudica and seventy-one dollars and ninety-seven tion, are in a measure inter partes, still, cents, three times which would be five as such adjudication operates ipso facto thousand and fifteen dollars and ninetyto dissolve all attachments issued within one cents. More than one-third of the four months before the commencement of aggregate of the bankrupt's debts are the proceedings, I think that an attach- therefore represented in the creditors' ing creditor is entitled to interpose and petition, although the debts of three protect his interest. It would be a singu- petitioning creditors are each less than lar anomaly if a lien, obtained by his two hundred and fifty dollars in amount. diligence, could be set aside by proceed. ings to which he could not make himself a party. Although the finding of the Court as to the sufficiency of creditors in number and amount would be binding in any collateral proceeding, still it is a Partners in two firms. Distribution of

quasi jurisdictional allegation, and if the attention of the Court is called to the want of a proper number of petitioners, I think the adjudication should be opened.

In re John B. Bergeron.

U. S. Dist. Ct., E. D. of Michigan. 12 N. Bk. Rep., pp. 385-389.

assets.

The Register's certificate states: "This question arises upon the distribution of the assets in said matter, and embraces 2. But the adjudication should not be two classes of liabilities. One class embe set aside. The Act requires that pro- braces paper upon which the firm of R. ceedings shall be instituted by creditors K. Dunkerson & Co. is liable, and the who shall constitute one-fourth in num- othe embraces paper upon which R. K. ber, and the aggregate of whose debts, Dunkerson is liable, not individually, but provable under the Act, amounts to at as a member of the firm of Brown & least one-third of the debts so provable. Dunkerson, which last mentioned firm The same section further provides that was dissolved some years before the in computing the number of creditors as bankruptcy. aforesaid, who shall join in such petition, "The Evansville National Bank has creditors whose respective debts do not proved in this case the following described exceed two hundred and fifty dollars notes, to wit: One promissory note drawn shall not be reckoned. In computing by Thomas E. Johns, Archie Baugh and the amount of creditors who should join, Joe C. Jones, and indorsed by Given, as contradistinguished from the number, Watts & Co. and Brown & Dunkersoncreditors whose claims are less than two amount five thousand and six dollars and

hundred and fifty dollars should be reck- thirty cents. Also three other notes, oned. It appears by the petition in this each for the sum of five thousand dollars,

drawn respectively by E. Warfield, Watt individual debts of Dunkerson must be F. Johnson, and J. D. Vance, and each fully paid out of his individual property, indorsed by Given, Watts & Co. and by and that all the partnership assets of Brown & Dunkerson said last-mentioned Dunkerson & Co. must be applied, so far firm being composed, at the time of said as they will go, to pay the partnership indorsements, of William Brown and debts. Robert K. Dunkerson, one of the petitioners in this matter. Upon these notes, R. K. Dunkerson is the only member of the firm of R. K. Dunkerson & Co. who is liable-his liability arising out of his connection with the firm of Brown & Dunkerson.

2. So far as the firm of Dunkerson & Co. is concerned, the claim of the bank, beyond all doubt, is not a partnership debt, and is not entitled to any dividend out of the assets of that firm.

"The individual debts of R. K. Dunkerson must first be paid in full out of his "In the distribution of the assets be- individual assets; that the assets of the longing to the firm of R. K. Dunkerson bankrupts, Dunkerson & Co., shall be & Co., and the assets belonging to the distributed, pro rata, among all their individual members of said firm, the as- creditors who have proved their debts; signee insists that the dividend shall be and that the individual assets of R. K. made in the following manner, to wit: Dunkerson, after first satisfying in full 1. The individual debts of R. K. Dun- his individual debts, shall be distributed, kerson shall be paid in full out of his in- pro rata, among all the creditors who dividual assets. 2. The assets belonging have proved their claims in this case, and to the firm of R. K. Dunkerson & Co. to whom R. K. Dunkerson was, at the shall be distributed, pro rata, among all time of the filing of the petition in this the creditors of R. K. Dunkerson & Co. case, liable either as a member of the who have proved their debts. 3. The firm of Dunkerson & Co., or of any other individual assets of R. K. Dunkerson, re- firm. And I direct that the Register maining after paying his individual debts make the distribution accordingly. And in full, shall be distributed, pro rata, I further order and adjudge that the among all the creditors proving their Evansville National Bank pay the costs claims, to whom R. K. Dunkerson was of this proceeding." liable at the time of filing his petition in bankruptcy, either as a member of the firm R. K. Dunkerson & Co. or of the firm of Brown & Dunkerson.

"To this the Evansville National Bank objects, and insists that, after paying Dunkerson's individual debts, the surplus of his individual assets shall be merged

in the assets of the firm of R. K. Dunkerson and Co. and that said bank shall be allowed a dividend upon the amount of the notes above described out of the assets of the firm of R. K. Dunkerson & Co., after the individual assets of Dunkerson, left after paying his individual debt, shall have merged as aforesaid, the same as upon the amount due said bank from the firm of R. K. Dunkerson & Co.

In re Robert K. Dunkerson & Co.
U. S. Dist. Court, Indiana.
12 N. B. R. Rep., pp. 391-394.

CERTIORARI.

Proceedings to remove policemen not reviewable by certiorari when there is no excess of jurisdiction by Commission ers of Police.

Certiorari to review the action of the, Board of Police Commissioners of New York City in removing relator.

The relator was duly served with a citation containing the charge against him of " conduct unbecoming an officer.' He did not appear at the trial, which was duly conducted. The evidence was that

Held, McDonald, J.: 1. That all the he was acting as, and wearing the uniform

of a patrolman not having been legally rators, but he was not put in the manappointed. This the Commissioners ad- agement of the road. The road was not judged to be sufficient cause of removal. built on the line surveyed by plaintiff's Held, 1. That the proceedings of the surveying party, and there was no eviBoard shows no excess of jurisdiction, dence that plaintiff's services was availed and we cannot review them by certiorari. of by the Company. The People, etc., ex rel. Clapp v. The

Commissioners of Police.
N. Y. Supreme Ct., Gen'l T., 1st

Dept., October 6, 1875.
Opinion by Davis, J.; Daniels and
Brady, JJ., concurring.

CONTEMPT.

A discharge under the insolvency laws does not relieve party held in attachment as for a contempt.

A party had been attached for contempt. He afterwards was discharged under the insolvent law.

On an application to recommit him, Held, Hanna, J.: The discharge did not relieve the prisoner from the effect of the attachment.

Spear's Estate.

Orphan's Ct., Philadelphia, Aug. 14, 1875.

CONTRACT.

Services rendered for an enterprise cannot be recovered against a company taking the place thereof unless properly bound. Action of assumpsit for services. Plea, non-assumpsit.

It was alleged that some of the promoters, but not a majority, promised to see that plaintiff was paid, but there was no ratification by the Company.

Held, 1. That there was no contract, express or implied, between the parties to this suit.

2. A minority of the projectors of an enterprise can no more bind the inchoate organization, than a minority in the board of directors can bind the company. Bell's Gap R. R. Co. v. Christy. Supreme Ct. of Penn., May 24, 1875. Opinion by Paxson, J.

CRIMINAL LAW.

FORGERY.

Motions granting or refusing new trials at the Court of Sessions not appealable. Correcting errors in a deed not forgery.

Writ of error to General Sessions on conviction of forgery, and writ of certio-rari to the same Court on the denial of a new trial.

The defendant had altered the description in a deed to him for property, which he honestly thought he had bought. And the Court refused to charge the jury especially that correcting errors in a deed was not forgery.

By Sec. 4, Chap. 339, Laws of 1859, the power was given to Courts of Sessions to grant new trials upon the merits, for irregularity, or on the ground of newly discovered evidence. And no authority was given to review such decisions.

Plaintiff planned a broad gauge railroad from Bell's Mills, on the Pensylvania R. R., to Erie. He communicated his plans to other persons; a meeting was held, and the route surveyed, the expenses of which were partly borne by plaintiff. He also went to Harrisburg to secure a charter. But the majority of those moving in the matter preferred a narrow gauge road, but part of the way; their views were adopted, and the charter was got. 2. That the Court erred in refusing to Plaintiff was named as one of the corpo-charge the jury that the correction of

Held, 1. That the refusal to grant a new trial is not reviewable.

errors in a deed was not forgery, and fendants, and not to persons only who this error is material.

Bough, plff. in error, v. The People of

the State of New York. N. Y. Supreme Ct., Genl. Term, 1st Dept., October 6, 1875. Opinion by Daniels, J.; Davis, F. J., and Brady, J., concurring.

actually emptied the casks or packages.

2. The defendants, in the course of their business as rectifiers, caused the casks and packages to be emptied, and they are amenable to the law.

United States v. Adler et al.
U. S. Dist. Ct., W. D. Missouri, 1875.

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OR BRANDS ON CASKS OR PACKAGES OF Divorce will not be granted for adultery

DISTILLED SPIRITS.

Rectifiers of liquors are liable for failing to efface, etc., the marks, stamps or brands on casks or packages of distilled spirits emptied by their employees in the course of the business.

Indictment for violating Revenue Laws. The defendants, who were rectifiers of liquors, received distilled spirits in casks and packages on which the requisite Revenue stamps had been placed, and the spirits were emptied out by their employees.

Sec. 3,334 of the R. S. of the United States declares that "every person who empties or draws off, or who causes to be emptied or drawn off, any distilled spirits from a cask or package bearing any marks, brand or stamp required by law, shall at the time of emptying such cask or package, efface or obliterate said mark, stamp or brand. * Every person who fails to efface or obliterate said mark, stamp or brand at the time of emptying such cask or package, shall be deemed guilty of felony, and shall be fined, etc."

*

The questions raised were these:

to party who has committed adultery, unless there are special circumstances to move the Court to do so.

Petition for a divorce for adultery, Answer, adultery on the part of the pctitioner. Reply, of condonation.

The petitioner married the respondent in February, 1870. In June, 1871. he committed adultery with a former mistress, which his wife forgave, saying that she believed the woman to blame more than her husband, and on his promise that he would never see the woman again. He kept his promise. She cohabited with him on affectionate terms, until in November, 1872, when she left him and became an actress, saying that she had committed herself, but made no complaint of her husband's conduct.

Her adultery was alleged to have taken place in October, 1870, and in February, *1873.

1. Did the law impose on the defendants the duty of canceling and effacing? 2. If so, were they responsible for the acts of their employees?

Held, Krekel, J.: 1. The two parts of the law must be taken together. For the term said mark, stamp or brand, refers to the mark, stamp or brand, and the duty in respect to them, in the first part; so that the penalty attaches to the de

Held, Judge Ordinary: 1. That the petition must be dismissed, for the condonation will not justify the Court, in the absence of special circumstances, in exercising its discretion in favor of the petitioner.

2. There are no special circumstances in this case to move the Court. It appears in the highest degree possible that the petitioner's conduct tended to weaken his wife's sense of the obligation of the marriage contract, and so conduced to her guilt.

Mc Cord v. Mc Cord.

L. R., 3 Probate and Divorce, pp. 237-244. May 25, 1875.

EJECTMENT.

Will lie to recover the possession of real property sold by the administrator more than three years after letters were issued, and the limitation begins to run on the first letters. Subsequent adminis trator merely acts in continuance.

A railroad company cannot occupy private property for its road unless that power is granted by the legislative authority.

Action of ejectment.

In 1832 a turnpike road was laid in front of the farm of plaintiff, and in 1841 the occupation of the Turnpike Company ending, the road was adopted by the public, and kept up by the township. In 1871 defendant took this road, and occupied it with its tracks and sidings, and constructed another road instead thereof, in accordance with Sec. 13, Act of February 19, 1849.

It did not appear that the defendant had any more than the general powers to construct a railroad "as it may deem

This action was brought to recover possession of certain real estate which plaintiff claimed as heir-at-law of G. Upon the trial it appeared that G. died intestate, in August, 1846, possessed of the real estate in question. In September, 1846, letters of administration on the estate of the said intestate were issued, and in July, 1850, J. G. and D. were appointed administrators de bonis non of the goods, &c., of said intestate. In April, 1852, a creditor of the intestate insti- necessary and useful." The defendant tuted proceedings for a sale of the real had not paid any compensation before real estate by the administrators de bonis taking possession of the road. non, but which were abandoned. Subsequently, in March, 1853, D., who was the sole administrator de bonis non, the let ters to J. G. having been revoked, instituted proceedings to mortgage, lease or sell the intestate's real estate to pay debts, and in November, 1853, the premises in suit were, according to an order made in such proceedings, sold and conveyed to defendants' grantor.

Held, that the sale was void, because the proceedings were not instituted within three years after the granting of letters of administration; that the limitation commenced to run upon the original granting of letters; that the previous proceeding instituted by a creditor could

not aid that under which the sale was
made, as it was abandoned, and that in-
stituted by the administrator was an inde-
pendent proceeding. An administrator
de bonis non takes the estate where his
predecessor left it, and his administration
is a mere continuance of that commenced
by the former.

Slocum, respt., v. English et al.
N. Y. Court of Appeals, Sept. 21, 1875.
Opinion by Church, C. J,

Held, 1. On the abandonment of the road the right to the occupancy vested in the owner of the fee, whose right to the soil had never been divested.

2. The defendant had no more right than a private person to occupy the land in the absence of special powers granted.

3. The Act of 1849 does not give any right to defendant to occupy this land. Phillips v. The Dunkirk, Warren and

Pittsburg R. R. Co.

Supreme C't of Penn., May 10, 1875.
Opinion by Gordon, J.

ESTOPPEL.

A creditor who leads the trustees of a deed of trust, made for benefit of creditors, to believe that he acquiesced in the assignment, is estopped from sueing the debtor.

Feigned issue to try the right to certain property of one Middleton, levied upon. Defendants pleaded property in themselves, as trustees of Middleton, for the benefit of creditors.

Middleton owned a furnace, became embarrassed, and in October, 1871, his personal property was levied upon, ex

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