an act of bankruptcy: but we are not here dealing with anything of that kind. What is this basis for conveying in trust for creditors to which allusion is made? It is the right which every man, having the general capacity to contract, has to make honest and unforbidden contracts and the right of disposition which is incident to ownership. "The right to make a general assignment of all a man's property results from that absolute ownership which every man claims over that which is his own:" MARSHALL, C. J., in Brashear v. West, 7 Pet. 608, 614. "Every debtor has a legal right to assign property for the security of debts due by him, and so far from such an act being reprehended by the law it is justified and approved:" STORY, J., in Brown v. Minturn, 2 Gall. 557. See also United States v. Bank of United States, 8 Rob. 262, 404; Nichols v. Mumford, 4 T. Ch. 522, 529; Robbins v. Embry, 1 Sm. & Marsh. 207, 258; Pichstock v. Lyster, 3 Mau. & Sel. 371; Giddings v. Sears, 115 Mass. 505.

It is to be steadily borne in mind that we are not inquiring and are not called upon to inquire how a Federal court would or might regard this assignment if it were regularly brought into question under bankruptcy proceedings against the assignor, and where its force would be directly examinable on an issue distinctly raised on the Bankrupt Law.

That is a question, as before stated, with which we have no concern. It is one which might regularly arise under the Bankrupt Act, and in a proceeding calling its energies into play.

The true question here is not whether the assignment was an Act of Bankruptcy, but whether the bare circumstance that the act was standing on the statute book of the Union, deprived the owner of all power to convey his property to one in trust for the equal benefit of all his creditors in perfect honesty and good faith, so that independently of any attempt by any one in any place to put the Bankrupt Law in motion, his conveyance must be deemed absolutely void, and not even sufficient to give the holding by the assignee any coloring of right in contemplation of law.

The grounds of the argument to uphold the affirmative have been examined and they are not satisfactory.

No adjudged case sustaining any such view has fallen under observation, whilst on the contrary a good many have been noticed which more or less strongly imply the opposite. Three or four may be particularly referred to.

In James v. Whitboard, 11 C. B. 406, property conveyed by one subject to the Bankrupt Law in trust for creditors, was taken on execution against the assignor, and it came up on interpleader whether the assignment was valid so as to defeat the levy. No point was made upon the necessary invalidity of the assignment as a consequence of the existence of the Bankrupt Law. The court sustained the validity of the assignment.

Coale and another v. Williams, 7 Exch. 205, was a similar case, and the ruling was the same. The principle contended for in the case at bar, if sound, was applicable to these English cases.

In Buchanan v. Smith, 16 Wall. 277, a paper manufacturing company in New York made a general assignment for the benefit of creditors, and Buchanan & Co. in the face of the assignment proceeded in the state courts to get judgments against the assignors, and levied execution and secured the appointment of a receiver. Bankruptcy proceedings were instituted against the company, an assignee was appointed, and he filed a bill in the Federal court to subject the estate and remove the obstacles raised by the assignment and the proceedings on the part of Buchanan & Co. in the state courts. No one pretended that the assignment was void as a consequence merely of the existence of the Bankrupt Law. The court disposed of it by saying that both sides had conceded that was repugnant to a certain local law of the state.

In McLean v. Melvin et al., 3 McLean 199, a bill was filed by an assignee in bankruptcy to set aside an assignment claimed to have been made by the bankrupt in contemplation of bankruptcy. The theory of the proceeding was the direct enforcement of the Bankrupt Act against the assignors and his estate, and it was based on the act itself. It was a specific assertion of the powers of the act in the appointed jurisdiction against an object of those powers, and not an attempt through a special proceeding under state law to set up the existence of the Bankrupt Law as enough to defeat the assignment. And I understand the court thought the assignment invalid when thus directly and distinctly assailed in bankruptcy, but at the same time conceded it would be valid on the basis of the state laws and when not tried in bankruptcy. There are many cases having the same bearing.

Now if the position taken by the plaintiffs in the case at bar is valid it is remarkable that in the case cited and many similar ones, neither court nor counsel should have had any suspicion of it. So

plain and ready a ground of decision could not have been overlooked. It must have been taken for granted that the simple existence of a bankrupt law could not render a common-law assignment ipso facto void.

I think the point raised is untenable and that the judgment. below should be affirmed with costs.

ABSTRACTS OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF ALABAMA.1

SUPREME JUDICIAL COURT OF NEW HAMPSHIRE.'

SUPREME COURT OF OHIO.3

SUPREME COURT OF WISCONSIN.

ADMINISTRATOR.

Commissions-Confederate Money.-Where the intestate's lands are sold under written agreement of the heirs, part of the price being paid cash and the remainder in notes severally made payable to and accepted by the heirs in payment of their respective shares, the proceeds of such sale or notes are not proper matters of his account and he is not entitled to commissions thereon: Key v. Jones, S. C. Ala.

The administrator is entitled to interest on a balance in his favor originating from over-payments to distributees, but not as a credit in his general accounts. Each distributee should be charged with so much of the balance as was an over-payment to him, with interest thereon: Id.

An administrator's compensation is governed by the law in force at the time the services were rendered and not by the law as it stood at the time of his appointment or settlement: Id.

When an administrator, exercising diligence, prudence and good faith, accepts payment of a debt due his intestate in Confederate currency, he should be allowed a credit, although the currency depreciates or perishes in his hands, if he has not commingled it with his own funds, or been guilty of negligence or bad faith in not paying it out:

Id.

AMENDMENT.

Equity Pleadings-Presumption.-Under the Alabama Statute of Amendments, the chancellor, on sustaining a demurrer, should not dismiss a bill without first allowing an opportunity to amend: Little v. Snedicor, S. C. Ala.

On appeal, where it does not appear that any effort was made, by an

1 From Hon. Thos. G. Jones, Reporter; cases decided at January Term 1875;

the volume in which they will be reported cannot yet be indicated.

2 From John M. Shirley, Esq., Reporter; to appear in 54 N. H. Reports.

3 From E. L. De Witt, Esq., Reporter; to appear in 25 Ohio State Reports. From Hon. O. M. Conover, Reporter; to appear in 36 Wisconsin Reports. VOL. XXIII.-81

offer to amend, to avoid dismissal, after sustaining a demurrer, it will be presumed that the complainant did not desire to amend: Id.

ATTORNEY. See Name.

Lien on Judgment recovered by-Conflict of Laws.-The lien of an attorney upon a judgment recovered by him will be enforced according to the law of the state where the lien attached, and not according to the law of the state where the judgment is sought to be collected: Citizens National Bank v. Culver and Trustees, 54 N. H.

By the law of Vermont, as established by their judicial decisions, an attorney has a lien upon a judgment recovered by him, not only for his term fees, attorney fees, and travelling fees, and for all money expended by him in prosecuting the suit, but also, it seems, for his reasonable charges for arguments, thus covering and securing to him to the full extent all just claims as attorney in the suit: Id.

And this lien is there protected so that it cannot be defeated by an attachment of the debt upon which the lien exists by trustee process, even though no notice of the lien had been given by the attorney to his debtor: Id.

BANKRUPTCY.

State Insolvent Laws.-Though the General Bankrupt Law of the United States may suspend all state insolvent laws, yet it does not affect the general law for the settlement of insolvent estates of persons deceased. Hawkins & Co. v. Learned, 54 N. H.

BILLS AND NOTES.

Stamp-Note payable" by "a certain Day.-The validity or a promissory note is not affected by the omission to stamp it, at the time of its execution or at all, unless it be shown that the omission was with a design to evade payment of revenue: Cole v. Cornelius, S. C. Ala.

A note dated February 2d 1869, payable by the 1st day of June," is properly declared on as payable on the 1st day of June 1869." Id.

66

BOUNDARY.

Adjustment by Parol Agreement-Limitation.-Where the boundary line of adjoining landowners, called for in their deeds, and ascertainable with certainty by survey, had been altered by agreement of the parties, and the occupancy by each up to the agreed line, by improvements and otherwise, had been acquiesced in and continued for a sufficient length of time to bar a right of entry, under the Statute of Limitations: Held, that an answer setting up these facts constitutes a good defence to an action by one of such owners, or his grantee with notice, for the recovery of the land lying between the two lines: Bobo v. Richmond, 25 Ohio.

The fixing of a boundary-line by parol is not within the operation of the Statute of Frauds-no estate is thereby created; but where the boundary-line is fixed by the parties, they hold up to it by virtue of their title-deeds, and not by virtue of the parol transfer: Id.

CONTEMPT.

Practice Defect of Jurisdiction- Waiver.-A proceeding to punish for contempt is a special proceeding, criminal in its character, in which the state is the real plaintiff or prosecutor; and where the proceeding is against one of the parties to a civil action, for some misconduct or disobedience therein, it should not be entitled as of such action: Haight v. Lucia and Another, 36 Wis.

Court commissioners have no power to issue attachments for contempt except in those cases (as in proceedings supplementary to execution) where the power is expressly conferred upon them by statute: Id.

A court commissioner, in a case where he had no statutory authority to do so, issued an attachment against the defendants as for a contempt, returnable to the Circuit Court; and defendants were arrested thereon, and gave bail for their appearance at the Circuit Court to answer for such alleged contempt. After a hearing, the court adjudged them in contempt, and imposed a fine. Held, that as the process by which defendants were brought into court was void, the proceedings there were coram non judice, and the order must be reversed: Id.

Defendants, by litigating the question of contempt in the Circuit Court, did not waive the objection to the jurisdiction of the commissioner. Want of jurisdiction of the subject-matter cannot be waived: Id.

The court cannot confer upon a commissioner powers not given by law; and the facts that the court, in this case, by the terms of a previous order, had authorized, and that it afterwards affirmed, the action of the commissioner, do not affect the question of his jurisdiction: Id.

CONTRACT.

Mutuality-Consideration.-If A., proposing to bid as a contractor for certain work to be let by a third party, promises B. to employ him at a certain price to do a part of said work in case A. shall obtain the contract, and B., in consideration of such promise, agrees to do the work at the price named, in the event of A. obtaining the contract—this is a valid agreement, binding on both parties: Grove and another v. Ganger, 36 Wis.

But a mere offer or promise of B., in such a case, to do the work at a specified price, in case A. shall obtain the contract, without any promise by A. to employ him at such price in the event named, is not a contract, but is void for want of mutuality: Id.

CORPORATION.

Estoppel to dispute Corporate Existence.-Where an association of persons, in good faith, attempted to organize as a corporation under the Act of February 11st 1867 (64 Ohio L. 18), and afterward commenced and carried on business as a building corporation, its members and others who have contracted with it as such corporation are estopped in a suit on such contract from setting up the defence of no corporation on account of a defect in its certificate of incorporation: Hagerman et al. v. Ohio Building & Saving Ass., 25 Ohio.

The fact that a member of such corporation holds a greater number of shares than is allowed by its by-laws, but not in excess of the number imited by the statute, is no defence against any claim which the corporation may have against him on account of such shares: Id.