LUNATIC. See Divorce.

MALICIOUS PROSECUTION.

Corporation-Attachment-Damages.-An action may be maintained against a corporation to recover damages for wrongfully, maliciously and without just or probable cause, obtaining and levying an order of attachment upon personal property: Western News Co. v. Wilmarth, 33 Kans. Where it is alleged in a petition brought to recover damages therefor, that an order of attachment was wrongfully, maliciously, and without just or probable cause sued out; that a stock of goods was levied thereon and withheld from the owner for about two months, and thereby his business completely broken up, it is not error on the part of the court, trying the case without a jury, to receive evidence showing the value of the stock on hand at the time of the attachment; that the owner was doing a business from $6000 to $7000 per annum, with a net profit of $1500 to $1600 per year, and that on account of the attachment proceedings his business was broken up, as in such a case vindictive or exemplary damages are allowable: Id.

Master and Servant.

Common Carrier-Assistance rendered by Passenger at request of Driver-Injury through Fault of Driver.—The plaintiff was a passenger on defendant's street railroad, on a car northward bound. The railway was a single track, with occasional side-tracks for the passage of cars moving in opposite directions. The northbound car, having been drawn beyond the side-track, where it was to have met the southbound car, it became necessary to push it back to the side-track, so that the cars could pass and each proceed to its destination. At the request of the driver of the northbound car, the plaintiff assisted him in pushing the car back to the side-track. While so engaged, without fault on his part, he was injured by the carelessness of defendant's driver on the southbound car: Held, 1. The plaintiff did not engage in the service of defendant as a mere volunteer. 2. Under the circumstances the plaintiff cannot be considered as a fellow-servant with the driver of the southbound car. 3. In the case stated, the doctrine of respondeat superior applies: McIntire Street Rd. v. Bolton, 41 or 42 Ohio St.

MORTGAGE.

Assumption of Mortgage Debt-Liability of Purchaser.-A purchaser of mortgaged premises from the mortgagor, who assumes payment of the mortgage debt, or who accepts a conveyance reciting his assumption of the same with a knowledge of such recital, will at once become personally liable to the mortgagee for the mortgage indebtedness, and he cannot defeat the mortgagee's right to hold him responsible, by procuring a release from the mortgagor: Bay v. Williams, 112 Ill.

The acceptance by the purchaser, of a conveyance by a mortgagor of his equity of redemption in mortgaged premises, is a sufficient consideration for a promise by the grantee to assume aud pay the mortgage debt: Id.

A promise by one, upon a valuable consideration moving from another, to pay the debt of that other to a third person, inures to the benefit of such third person; and his right to maintain an action upon it is vested

in him by force of the agreement itself. The express assent of the beneficiary is not essential to his right to avail of its benefits: Id.

Subrogation-Money obtained on Forged Mortgage to pay off Valid Mortgage Rights of Mortgagee.-Where money is loaned upon the security of what is supposed to be a valid mortgage, but which in fact is a forged and void mortgage, and the money is so loaned for the purpose that a prior valid mortgage may be discharged, which is done, the mortgagee of the void mortgage may be subrogated to the rights of the prior mortgagee, there being intervening liens or incumbrances, Everston v. Central Bank, 33 Kans.

And in such a case, where the mortgagee of the void mortgage assigns the same in the regular course of business to an innocent purchaser, such innocent purchaser takes the place of the mortgagee of the void mortgage with all his rights of subrogation: Id.

MUNICIPAL CORPORATION. See Highway.

NEGLIGENCE. See Common Carrier; Highway; Master and Servant.

Crossing Railroad-Duty to Look or Listen.-It is the duty of a person about to cross a railway track to make a vigilant use of his senses, as far as there is an opportunity, in order to ascertain if there is a present danger in crossing. A failure to listen or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company in failing to give siguals contributed to the injury: Union Pacific Railroad v. Adams, 33 Kans.

NEGOTIABLE INSTRUMENT.

Fraud in obtaining-Bona fide Holder-United States.-Where, by the connivance of a clerk in the office of an assistant treasurer of the United States, a person unlawfully obtains from that office money belonging to the United States, and, to replace it, pays to the clerk money which he obtains by fraud from a bank, the clerk having no knowledge of the means by which the latter money was obtained, the United States are not liable to refund the money to the bank. The case distinguished from United States v. State Bank, 96 U. S. 30: State Bank v. United States, S. C. U. S., Oct. Term 1884.

NOTICE. See Fixture.

Posssession under Contract of Sale-Payment to Vendor in ignorance of subsequent Mortgage.-A. loaned to B. a sum of money, receiving B.'t promissory note and a mortgage on real estate to secure the same; bus when A. accepted the note and mortgage, C. was in actual possession of the premises, and resided thereon with his family: Held, that A. was chargeable with notice of C.'s rights and interest in the premises; and A. having assigned the note and mortgage his assignee occupied the same situation; nor will the fact that A. and his assignee did not know that C. was in possession, make any difference: Ranney v. Hardy, 41 or 42 Ohio St.

B. sold to C. real estate, placed him in possession, and agreed in writing to execute to him a deed on payment of the purchase-money in

monthly instalments. Subsequently B. executed to A. a mortgage on the premises, which was recorded: Held, that such mortgage was valid, but subordinate to the rights of C.; that C. may validly make payments of purchase-money to B. until A. or his assignee, by suit, or in some other unequivocal form, asserts the right to receive from C. the unpaid instalments of purchase-money; and that the assignee of C. has the same right: Id.

NUISANCE. See Limitations, Statute of

PARTNERSHIP.

Insolvency-Liability of a Retiring Member-Where a member of a partnership retires from it, and his copartners, who continue the business, thereupon agree, in good faith, to pay him a sum certain as his share of the capital, and the firm afterwards unexpectedly turns out to have been insolvent at the time of the said withdrawal: Held, that a bank from which the new firm had borrowed money which they had partly used in making payments to the said retiring member, could not in equity charge the old firm with the money loaned to the new, nor the retiring partner with the moneys obtained from it and used to pay him, the retiring partner having paid in discharge of the debts of the old firm, more than the amount received by him as his share of the capital thereof: Penn Bank v. Furness, S. C. U. S., Oct. Term 1884.

RAILROAD. See Common Carrier.

SALE.

Ambiguous Terms—Liability of Vendee.-Where a proposition to sell goods is sent by a writing, that, by mistake, is ambiguous; and, knowing of such ambiguity, the receiver of the writing claiming an improbable meaning, unreasonably favorable to himself, and not intended or thought of by the sender, and without notice to the sender or inquiry of him as to his intended meaning, orders the goods, obtains, and uses them, such receiver of the goods is liable to the seller of the same for the value of the goods used, as if no proposition had been sent: Butler v. Moses, 41 or 42 Ohio St.

USURY.

Separate Loans-Deduction of whole Usury from last Loan.—In 1869, 1870 and 1872, A. loaned money to B., taking at each loan a promissory note therefor, the note for the loan of 1870 embracing also the amount of the loan of 1869, and the note for the loan of 1872, embrac ing also the amount of the two preceding loans. In each of the notes asurious interest was incorporated. Held, that in an action to foreclose a mortgage given to secure the payment of the note of 1872, and obtain a sale of the mortgaged premises, all the illegal interest should be deducted: Beals v. Lewis, Ohio St.

THE

AMERICAN LAW REGISTER.

AUGUST 1885.

VALIDITY OF BONA FIDE VOLUNTARY CONVEYANCES BY SOLVENT DEBTORS, AS AGAINST PRIOR CREDITORS.

THE question of whether or not gifts and voluntary conveyances, made without any dishonest intent, by solvent debtors, can be upheld against the claims of pre-existing creditors, is a vexed one. Its answer depends upon what interpretation should be given to the statute of 13 Eliz. c. 5, and the various state statutes, which have been modelled upon it, and which are for the most part, simply re-enactments of it. The text of the English act will be found in a note below.1

1 “ 13 Eliz. C. 5. For the avoiding and abolishing of feigned, covinous and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judg ments and executions, as well of lands and in tenements, as of goods and chattels, more commonly used and practised in these days than hath been seen or heard of heretofore; which feoffments, gifts, grants, &c., *** have been and are devised and contrived of malice, fraud, covin, collusion or guile, to the end, purpose and intent to delay, hinder or defraud creditors and others of their just and lawful actions, suits, debts, &c., ***not only to the let or hindrance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing, bargaining and chevisance between man and man, without the which no commonwealth or civil society can be maintained or continued:

"Be it therefore declared, ordained and enacted, that all and every feoffment, gift, grant, alienation, bargain and conveyance of lands, tenements, hereditaments, goods and chattels, or any of them, by writing or otherwise, and all and every bond, suit, judgment and execution at any time had or made to or for any intent or purpose VOL. XXXIII.-62 (489)

It is said to have been declaratory of the common law (Twyne's Case, 1 Smith's L. C. 1; Hamilton v. Russell, 1 Cr. 309; Cadogan v. Kennett, 2 Cowp. 432; Fonblanque's Eq. *278), which upon the subject under discussion, seems to have resembled the civil law. Under that law all dispositions of property, on the score of liberality by debtors, were invalid as against pre-existing creditors, in case the latter were thereby prejudiced: 1 Domat's Civ. Law, SS 1634, 1639.

ENGLISH DOCTRINE.-The English authorities upon this subject are not harmonious. Twyne's Case, 1 Smith's L. Cas. 1, is the leading one upon the statute. In that case the conveyance was by an insolvent debtor, who retained possession, to a creditor who was not related to him, and hence it does not bear directly upon the subject of this article; but it contains an expression of opinion by Lord COKE, the reporter, which should carry weight because uttered so soon after the passage of the 13th Eliz. by a judge of such great learning. It is as follows: "And when a man being greatly indebted to sundry persons, makes a gift to his son, or any of his blood, without consideration, but only of nature, the law intends a trust betwixt them, scil., that the donee would, in consideration of such gift being voluntarily and freely made to him, and also in consideration of nature, relieve his father, or cousin, and not see him want, who had made such gift to him, vide 33 H. 6, 33, by Prisot, if the father enfeoffs his son and heir apparent within age, bona fide, yet the lord shall have the wardship of him: so note, valuable cansideration is a good consideration within this proviso; and a gift made bona fide is a gift made without any trust, either expressed or implied: by which it appears that, as a gift made on a

before declared and expressed, shall be from henceforth deemed and taken, only as against that person or persons, his or their heirs, successors, executors, administrators and assigns and every of them, whose actions, suits, debts, &c., *** by such guileful, covinous or fraudulent devices and practices, as is aforesaid, are, shall or might be in anywise disturbed, hindered, delayed or defrauded, to be clearly and utterly void, frustrate, and of none effect, any pretence, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding.

"Provided, that this act or anything therein contained shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, commons, profits, goods or chattels, had, made, conveyed or assured, or hereafter to be had, made, conveyed or assured, which estate or interest is or shall be, upon good consideration and bona fide, lawfully conveyed or assured to any person or persons, or bodies politic or corporate, not having at the time of such conveyance or assurance to them made any manner of notice or knowledge of such covin, fraud or collusion as is aforesaid."