the appeal may be dismissed, if such bond is not executed in accord-. ance with the rules or the order of the court. lb.
1. The defence of laches on the part of a plaintiff seeking relief in equity may be set up under a general demurrer. Bryan v. Kales, 126.
2. The granting or refusing relief in equity on the ground of laches in applying for it must depend upon the special circumstances of each case. Ib.
3. A bill in equity alleged that on the 24th of September, 1883, letters of administration upon the estate of a deceased person were granted to one of his creditors whose several debts were secured by mortgages upon the estate of which he died seized; that on the 28th day of the same month, the administrator, though having in his possession money sufficient to discharge those claims, proceeded to foreclose the mort- gages, and did on the 16th of the next October take judgment in his individual name against himself as administrator for the amount of the claims and for attorney's fees, and in the following December caused the various parcels to be sold; that the property brought much less than its real value, or than it would have brought at an open sale; that one of the tracts was bought by the administrator and assigned by him to the judge by whom the decree was rendered; that the wife of the deceased survived him; that all the property was acquired during marriage and was common property of the husband and wife, and, at the decease of the husband, descended to the wife; and that on the 20th of June, 1887, she conveyed her rights to the plaintiff. The bill which was filed July 18, 1887, made the several purchasers, the ad- ministrator, and the judge who rendered the decree, defendants, and asked to have the decree of sale and the sales thereunder set aside, and for further relief. To this complaint the defendants demurred, and the demurrer was sustained. Held, that the circumstances set forth in the complaint were of so peculiar a character, that a court of equity should be slow in denying relief upon the mere ground of laches in bringing the suit. Ib.
1. In section 90 of the New York Code of Civil Procedure it is provided that "where a cause of action accrues against a person who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative after the expiration of the time limited by the laws of his residence for bring- ing a like action, except by a resident of the State, and in one of the following cases: 2. Where before the expiration of the time so limited, the person, in whose favor it originally accrued, was, or became, a resident of the State, etc.;" Held, following the decisions of the courts of the State of New York in parallel cases, that this stat-
ute contemplates that the plaintiff shall be an actual resident in the State, and that he does not become such by sending his family to the State of New York from another State, in which he and they were residing, with the intent that they should reside there, but remain- ing himself in the other State. Penfield v. Chesapeake, Ohio &c. Rail- road, 351.
2. In determining the rules applicable to conveyances of real estate from a husband to his wife, reference should be had not only to the decisions of this court, but also to those of the State where the parties lived, and where the transactions took place. Schreyer v. Scott, 405.
1. A recorded mortgage, given by a railroad company on its roadbed and other property, creates a lien whose priority cannot be displaced there- after either directly by a mortgage given by the company, or indi-
rectly by a contract between the company and a third party for the erection of buildings or other works of original construction. Toledo, Delphos and Burlington Railroad v. Hamilton, 296.
2. Whether a mechanic's lien could, under the statutes of Ohio in force at the time of the attempted filing of a lien in this case, be placed upon a railroad, quære. Ib.
3. The priority of a mortgage debt upon a railroad has been sometimes dis- placed in favor of unsecured creditors, when those debts were con- tracted for keeping up a railroad, already built, as a going concern; but those cases have no application to a debt contracted for original construction. lb.
4. A mortgage with words general description conveys land held by a full equitable title as well as that held by a legal title. Ib.
5. In foreclosing a mortgage in Louisiana, the mortgagor is entitled in making up the amount of the judgment, to be credited with judgments against the mortgagee in another State which have been acquired by the mortgagor. Mendenhall v. Hall, 559.
See APPEAL, 4;
RAILROAD, 1, 6.
MOTION TO DISMISS OR AFFIRM.
See TAX AND Taxation, 1, (2).
1. A power conferred by statute on a municipal corporation to subscribe for stock in a railway corporation does not include the power to create a debt, and to issue negotiable bonds representing it, in order to pay for that subscription: and this doctrine prevails in Missouri. Hill v. Memphis, 198.
2. All grants of power to a municipal corporation to subscribe for stock in railways are to be construed strictly and not to be extended beyond the term of the statute.
3. The provisions in the general railroad law of Missouri, which went into effect June 1, 1866, respecting the loan of municipal credit to a rail- road company, and of the act of the State of March 24, 1868, respect- ing the funding of the debts of municipalities, are to be construed in subordination to the provision of the constitution of the State then in force, prohibiting the legislature from authorizing any town to loan its credit to any corporation, except with the assent of two-thirds of the qualified voters, at a regular or special election. Ib.
4. Where a majority of the taxpayers of a town are authorized by statute to encumber the property of all, in aid of a railroad or other corpora- tion, the record must show that the statutory authority has been pur- sued. Rich v. Mentz Township, 632.
5. The statute of New York of May 18, 169, 2 Sess. Laws of 1869, 2303,
authorized a county judge, on the petition of a "majority of the tax- payers of any municipal corporation," verified by the oath of one of the petitioners, for the issue of bonds of the corporation in aid of a railroad, to take jurisdiction and to proceed, as provided under the act, to determine whether the bonds should be issued. In 1871 this statute was amended, 2 Sess. Laws 1871, 2115, so as to confer that jurisdiction only when the application was made by "a majority of the taxpayers" of the municipal corporation, "not including those taxed for dogs or highway tax only." The town of Mentz issued its bonds for such a purpose on an application made after the act of 1871 took effect, but which in language complied with the act of 1869 only. The Court of Appeals of the State of New York held these bonds to be void for non-compliance with the provisions of the act of 1871; and following the decisions of that court it is now Held, that the bonds sued upon by the plaintiff in error are void. Ib.
6. Upon questions similar to the issues in this suit the decisions of the highest judicial tribunal of a State are entitled to great, and ordinarily decisive weight. Ib.
7. There being on the face of the bonds sued upon an entire want of power to issue them, no reference need be made to the doctrine of estoppel. 16.
NATIONAL BANK.
See JURISDICTION, B, 2.
NON-RESIDENT.
See QUIET TITLE.
1. The third section of the act of the legislature of Texas entitled "An act in relation to assignments for the benefit of creditors, and to regu- late the same and the proceedings thereunder," passed March 25, 1879, provides that "any debtor, desiring so to do, may make an assignment for the benefit of such of his creditors only as will consent to accept their proportional share of his estate, and discharge him from their respective claims, and in such case the benefits of the assignment shall be limited and restricted to the creditors consenting thereto; the debtor shall thereupon be and stand discharged from all further lia- bility to such consenting creditors on account of their respective claims, and when paid they shall execute and deliver to the assignee for the debtor a release therefrom." That section was amended by an act passed April 7, 1883, so as to provide that "such debtor shall not be discharged from liabilities to a creditor who does not receive as much as one-third of the amount due, and allowed in his favor as a
valid claim against the estate of such debtor;" Held, that this legisla tion applied to limited partnerships formed under chapter 68 of the Revised Civil Statutes of Texas, adopted by an act passed March 17, 1879. Tracy v. Tuffly, 206.
2. An assignment by a limited partnership consisting of one general part- ner and one special partner, for the benefit of its creditors, may be executed by the general partner; and such assignment need not em- brace the individual property of the special partner. Ib.
3. An assignment by a limited partnership for the benefit of its creditors is not void because the verified schedule attached to the assignment embraces a debt of the special partner, which cannot, under the stat- ute, be paid ratably with the claims of other creditors. Ib.
4. The only effect of the failure of a limited partnership to state fully in the published notice the terms of the partnership is that the partner- ship shall be deemed general. Ib.
5. Circumstances stated under which creditors may be estopped to deny the existence of a partnership as a limited partnership. Ib.
1. Under § 4887 of the Revised Statutes, which provides that "every patent granted for an invention which has been previously patented in a for- eign country shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it be in force more than seventeen years," a United States patent runs for the term for which the prior foreign patent was granted, without reference to whether the latter patent became lapsed or forfeited in consequence of the failure of the patentee to comply with the requirements of the foreign patent law. Pohl v. Anchor Brewing Co., 381.
2. There was no novelty or invention in "the combination of a griping chuck, by which an article can be so held by one end as to present the other free to be operated upon, with a rest preceding the cutting tool, when it is combined with a guide cam, or its equivalent, which modifles the movement of the cutting tool, all operating together for the purpose set forth," which was patented to Charles Spring and Andrew Spring by letters patent, dated May 10, 1859, and extended for seven years from May 10, 1873; and the letters patent therefor are therefore in- valid. Howe Machine Co. v. National Needle Co., 388.
PENAL STATUTES.
See STATUTE, A, 4.
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