District Court of the United States for the Southern District of the express agreement that the Sixpenny Savings Bank should be

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property passes under the bankruptcy act into the hands of the was a trespasser, not having the right to take possession assignee, subject to 'such interest. The twenty-eighth of the property. This question is one of more or less dif section of the present act provides that certain claims shall "be ficulty, as the authorities are contradictory on the subject. Asentitled to priority or preference and to be paid in full in the fol- suming that the owners were partners, it presents the question as lowing order." Then follow five clauses. The fifth is, "all to whether the sheriff can levy an attachment against one of the debts due to any persons who, by the laws of the United States, partners, on the property of the firm, and take possession by vir are or may be entitled to a priority or preference, in like manner tue of such levy. We think it settled in Tennessee, that he may as if this act had not been passed." This is limited to priorities do so in case of an execution, but he can only sell the interest of or preferences created by the laws of the United States. It does the partner against whom the process is issued. Haskins v. Ev not extend to priorities or preferences created by the laws of a erett, 4 Sneed, 531. The same doctrine was laid down in a case state. Under it the state could have no priority for debts due to of joint ownership in the case of Rains v. McNairy, 4 Hum. 356, it which were not liens or securities, and but for the provision, in Such seems to be the weight of authority in most of the other the third class of priorities, for such debts due to the state, there states of the Union, as well as in England. In fact, it would seem could be no priority for such debts. But such priorities to follow as a matter of necessity, from the principle of allowing or preferences created by state laws in the distribution of insol- the interest of the partner to be sold or taken at all under process vents' estates are not liens or securities, or rights or interests in against him. See 1st Amer. Lead. Cases, 382-3-4, Ed. 1871. We, property. If so, they are not saved by the general scope of the therefore, hold that the attachment might properly be levied on bankruptcy act, and they are not recognized by the twenty-eighth the interest of Rodney Joyner, Jr., whether he was partner or section. The claims to priority on the part of the savings banks joint owner, and the sheriff was properly in possession of the cotmust be disallowed. ton, and that plaintiff below did not have the right to possession as against said officer.

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1. Consignor and Consignee-Attachment.-Where a debtor ships goods to his creditor, agreeing with the latter that he shall receive and sell the goods and apply the proceeds to the payment of the debt, such goods may be attached by another creditor, although they have reached their place of destination, and although the bill of lading may have reached the first creditor, if he has not actually taken possession of the goods. Such a transaction is not a sale, and the title remains in the consignor until actual or constructive possession by the consignee; and the delivery of the bill of lad

ing is not such constructive possession.

Attachment of partnership goods for debt of partner or joint owner.-An attachment in a suit against a partner or joint owner may be levied upon goods belonging to the firm or joint proprietors, and the levying officer is entitled to the possession of the goods as against a third person who claims them.

FREEMAN, J.,-Joyner & Son were indebted to defendants, and agreed, or it was understood, that said Joyner & and Son should ship their bale of cotton in this case to defendants, and when sold, its proceeds should be appropriated by them to the payment of the debt. The cotton, says the bill of exceptions, was shipped to Bartlett, Gould & Heath, as cotton factors, for sale. When the boat on which it was shipped, arrived at the wharf at Memphis, the bill of lading was sent to Bartlett, Gould & Heath, but before anything was done by them to reduce the cotton to possession, it was attached by Saunders, or at his suit, when the factors replevied it in this suit. We take it to be clear, that the consignors were the owners of this property; it was not a sale; and that the factors had no lien, either general or special, on the cotton, without actual or constructive possession. The possession of the bill of lading was not such possession in this case, but only gave the authority to reduce the cotton to possession as consignee. See. 2d. Head, 94. The case of Kinloch v. Craig, 3d Term Rep. 119, cited and approved by Judge WRIGHT in 2d Head., was a much stronger case than the one now under consideration, yet it was held that the rights of consignee had not attached.

The next question presented by counsel is, that the attachment was against Rodney Joyner, Jr., the second member of the firm, and not against the firm, and that, therefore, the sheriff

Title to Grain in Public Elevators.

At the instance of several bankers we publish elsewhere in this number the opinion of the United States circuit court for Minnesota, as to the nature of the relation which exists between the depositor of wheat in a public elevator and the proprietor of the building. Such elevators are very numerous, and a large portion of the grain business of the country is transacted in them. It is the practice to issue to the depositor a warehouse receipt, and these receipts are sold and extensively used as collateral security. The nature of warehouse receipts proper is well understood. In cases of bailment, they represent the property bailed, and their transfer passes the title to it. (Gibson v. Stevens, 8 How. 884; McNeil v. Hill, Woolw. C. C. R. 96; Harris v. Bradley, 2 Dillon C. C. R. 284.)

The case of Rahilly presents some different considerations; and is said to have occasioned some surprise to business men who have, perhaps not unnaturally, regarded all grain warehouse receipts as standing upon the same footing.

According to the views propounded in the opinion in Rahilly's case, whether the deposit of grain in a public elevator amounts to a bailment or a sale depends upon the nature of the transac tion, to be inferred, in the absence of express agreement, from the usual and known course of business. As business at these elevator warehouses is generally conducted, the transaction, in most instances, assuming the correctness of the decision in Rahilly's case, is a sale, and hence these receipts in such cases represent only the personal responsibility of the warehouseman. If this is so, it would seem that the subject is a fitting one for leg islative protection to the grain depositor, by requiring the elevator proprietor to give security to the public for the benefit of his receipt holders, or in some other manner to guard them against loss.

Similar principles would apply to cotton in store. If the specific cotton is to remain in store with no power of sale in the warehouseman, it would be a bailment; but otherwise, a sale. Whoever would have a full understanding of the objections which may be urged against the doctrine of Rahilly's case, should read Judge Nelson's opinion in the same case in the court below, published at the time in the Chicago Legal News, and particularly the article in the American Law Review on Grain Elevators. (Vol. 6, p. 450.),

Book Notices.

COMMENTARIES ON AMERICAN LAW. BY JAMES KENT. 4 vols. 12th Edition. Edited by O. W. Holmes, Jr., of Boston: Little, Brown & Co. 1873. Sold by Soule, Thomas & Wentworth, St. Louis.

We do not deem it necessary to go into much detail to verify the statements we make concerning the thoroughness with which the work has been brought down to date. The reader will find it illustrated, if he will open the first volume which treats of the Law of Nations and of War, and We have delayed to notice this edition of Kent until we could find time the Jurisprudence, Federal and State, of the United States. All the imcarefully to examine it. A comparison with preceding editions has satis-portant decisions which have grown out of the late rebellion are carefully fied us of its superior accuracy, fullness and value.

It is needless to enlarge upon the unequalled merits of this great and crowning work of the chancellor's life. It will perpetuate his fame to the latest times. In every respect it equals, and in some respects it surpasses,

the similar work of the great English commentator.

stated and properly arranged.

Two or three examples will suffice to show the manner in which Mr. Holmes has done his work. An important topic at the present time is the law concerning the removal of suits from the courts of a state to those of

the United States. When Chancellor Kent wrote, the 12th section of the

judiciary act was the only enactment of congress upon the subject, and he refers to but one decision. The present edition (vol. I, p. 303), in a condensed note cites the very numerous decisions since made, and gives the points they establish. Another example: Chancellor Kent states (vol. I, P. 410) that "if a marshal of the United States, under an execution in favor of the United States against A., should seize the property of B., the state courts have jurisdiction to protect the person and the property so illégally invaded." The editor is careful to note that the Supreme Court has twice denied this statement to be law, and refers to the many decisions touching the respective jurisdiction and powers of the federal and state tribunals. Another example: in the Lecture on Bailments (vol. 2, p. 590), the editor in a note that displays his industry and power of condensation, and which to a lawyer who should have occasion to investigate the subject, is alone worth the price of the work, discusses the question whether the deposits in grain elevators are bailments or sales, and the nature of purchases of grain therefrom. We had occasion recently to look for the cases upon this subject, and after several days' search, we discov

It is a noble monuument to the ripe learning, the cultivated literary taste, and the wisdom that came from the long and varied judicial experience, of its illustrious author. Unless Mr. Justice Story forms an exception, Chancellor Kent has done more than any American lawyer to make the jurisprudence of our country known and respected throughout the civilized world. In natural endowments, Marshall was the equal of either of them, and perhaps their superior, and in his long career on the Supreme Bench of the United States, he rendered services in the settlement of constitutional questions, whose value to the country are incalculable; but his name, unlike that of Story and Kent, while it is a household word in America, is not familiarly known to the lawyers of Great Britain or of Europe. The highest title of Chancellor Kent to lasting veneration, is not in his Commentaries, but in his long and arduous life upon the bench, where, almost unseen by the public eye, he gave to private suitors the benefit of his learning, wisdom, and disciplined judgment. The popular fame of the great chancellor rests however, rather upon these Commentaries than upon his Judgments contained in thirty volumes of Law and Chancery reports. These Commentaries, it is well known, were written after the chancel-ered only a portion of those here cited, and none which are here omitted. lor's retirement from the bench by reason of his having reached the constitutional limit then in force as to age. The first volume appeared in 1826. The author lived to correct the sixth edition. Previous to the present, five editions have, from time to time, appeared since the author's death. The present is the twelfth; and it sums up the result of a critical examination of it, to add that it is, in our judgment, the best. Since the author's death, the work has had several editors, and the notes had become cumbrous and frequently confused, and inserted without method.

We approve the plan of the present editor, which adopts the text and notes as Chancellor Kent left the work in the sixth edition, and keeps these strictly and visibly separate from the editorial additions. The great and almost authoritative weight which belongs to the opinions of the author, makes it very desirable that there should be no confusion as to what is his and what is not.

We think, also, the editor did wisely to reject, with but two exceptions, the mass of notes, which accompanied the former editions since the sixth, and to edit the work de novo, as this has enabled him to systematize and harmonize the editorial additions.

It is an arduous and difficult task to perform thoroughly and well the work of editing the four volumes of Kent, covering, as they do, almost the entire field of jurisprudence except criminal law. Since the author's death, a quarter of a century has elapsed, and it is quite needless to remind the reader how great, in the meantime, have been the changes, and how great have been the additions, both by enactment and adjudication, to the body of the law as it then existed. Obviously, the cardinal duty of the editor is to note these changes and additions, so as to make the work exhibit the law as it exists to-day. To do this thoroughly, methodically, without diffuseness, and yet with sufficient fullness, keeping faithfully within the scope of the original work, and not smothering it with the weight of the additions, requires patience, industry, skill, and good judgment. We find evidence of the presence and careful touch of the present editor in almost every page. After an attentive examination of his labors, we readily credit his statement that they have taken more than three years of his time. His edito. rial management of one of the leading law journals of the country had well prepared him for work of this character. Bearing the weight of an illustrious name, and animated, doubtless, by a noble ambition to justify the expectations it excites, he has given the profession an amount of faithful, carefully considered work that would not be likely to originate in motives any less cogent; which, we trust, will be appreciated, and which, at all events, demonstrates his various learning, capacity and unflagging industry.

Among other improvements, we are indebted to the present editor for subdivisions of the chapters, indicated by full-faced type; for an improved index, and for presenting all the cases cited in one table. No previous edition equals this in the style in which it is published.

Notes and Queries.

MORGANTOWN, KY., January 28th, 1874. EDITORS CENTRAL LAW JOURNAL: My object in writing this, is to ask you a question, viz: C. held a policy of insurance, by assignment from H.; but before the assignment was ratified by the company, the house insured was destroyed by fire. C. then placed his policy in the hands of F. as special bailee. F. was sub-agent of the insurance company, and without authority, and against the order of C., surrendered the policy to the company. C. brought an action of replevin against F. to recover the policy. Can F., as a matter of defence to C.'s action, prove that the policy was worth to C. less than the amount of insurance? or, in other words, can he prove that C. could recover nothing on the policy from the company, and that it was consequently worthless. L. J. S.

ANSWER. The right to maintain replevin in such cases and what defences may be made to the action, may depend so much upon the local legislation and practice, that we feel scarcely warranted in making a specific answer to our correspondent's inquiry. See in Iowa, Savery v. Hays, 20 Iowa, 25, and cases there cited. As to replevin for public records and papers, see Parish &c. v. Stearns, 21 Pick. 148; School District v. Lord, 44 Maine, 374. Contra, LaGrange v. State Treasurer, 24 Mich. 466. Compare Desmond v. McCarty, 17 Iowa, 525.

GRANT CITY, Mo., January 10, 1874. EDITORS CENTRAL LAW JOURNAL: If you will, you may explain how homesteads of widows and children become a vested fee in the widow when the children attain their majority, subject to be disposed of by her in such a way as to defeat their reversionary interest. I am placed in this dilemma by Kelly in his Chapter on Homesteads, Probate Guide, pages 361 and 362, while section 1 and 2, chap. 130, G. S., seem to me to conflict with his opinion. W. J. G.

ANSWER.-There appear to be no decisions in this state illustrating the question; and professional opinion here (at Saint Louis) is somewhat divided as to the construction of the 5th section of our homestead law. By some, it is regarded substantially as a statute of descents, vesting in the widow the fee or whatever estate the husband had, subject to an incumbrance, namely, the right of the children so long as they re

main in their minority, to an occupancy in common with the widow. Ac cording to this theory, upon the youngest child becoming of age, the fee (or whatever estate the husband possessed) becomes an absolute estate in the widow, which she may alienate at pleasure, and which, upon her death, descends to her heirs and not to the heirs of the husband. Upon the happening of this event, if this view be the correct one, the estate becomes by operation of the statute, a vested fee in the widow, subject to be disposed of by her so as to defeat the reversionary interest of the children, in precisely the same way as any other heir takes the estate of his or her ancestor by virtue of the statute of descents. In other words, in this view of the statute, the wife is simply the heir of the husband in respect of the homestead property, subject to the incumbrance before mentioned.

But is this the correct view? Other members of our bar (and some of our judges) are of opinion that the statute is not a statute of descents, but a statute of exemptions merely; that its object and policy are simply to prevent creditors from sweeping away the homestead and pauperizing the family, and that when this object is attained, the whole force of the statute is discharged. According to this view, the wife, upon the death of the husband, takes a possessory interest merely in the homestead property, which she holds during her life, subject to the right of common user of the children during their minority; she may not alienate it during the minority of the children, so as to deprive them of this right of common user, nor after their majority, so as to defeat their reversionary interest; and upon her death, it passes under the general statute of descents, to the heirs of the husband. In opposition to the view that the widow takes the fee, it is urged that upon the death of the widow without issue, the estate would pass to her collateral relativesan injustice to children which the husband may have had by a former marriage, which the legislature never could have intended. And it is hence urged, that when the law has succeeded in securing a homestead to the widow and minor children, not subject to be taken for the debts of the husband, the boundaries of the legislative intent are reached; and that it is a perversion of the statute to go beyond those boundaries and interpret it as changing the general statute of descents, altering the rights of widow and children inter se thereunder, and perhaps disinheriting the children

of the husband in favor of distant relatives of the wife.

Without expressing any definite views of our own upon the question, we would say that our homestead law, G. S. ch. III.; I W. S., ch. 68, is copied from the Vermont, act, of 1855, (Gen. Statutes Vt. ed. of 1863, p. 456). It would follow that, until it is expounded by our own supreme court, we should naturally look to the decisions of that state for its exposition. The 5th section of the Vermont statute is the same as our 5th section, with one or two slight verbal alterations which do not change the meaning; and the understanding of the supreme court of that state appears to be that it passes the fee, (or the full estate which the husband had,) to the widow, subject to the right of user in common with her, by the children during their minority. See Doane v. Heirs of Doane, 33 Vt. 649, 652; Day v. Adams, 42 Vt. 510, 516. See also I Washburn on Real Property, 352, where Prof. Washburn describes the interest of the wife, under the Vermont statute as follows: "The homestead belongs to her in fee, vesting upon the death of the husband, and on her death descends to her heirs." The late case of Day v. Adams, 42 Vt. 510, is, however, thought by some to support a different view.

Notes of Recent Tennessee Decisions.

IN THE SUPREME COURT AT JACKSON.

[Courtesy of Hon. J. O. Pierce of Memphis.]

Where an agency was revoked by the breaking out of the war, but the acts of the agent were subsequently ratified, the principal must account for the value, as scaled, of Confederate money received by the agent. Bruce v. Houghton, October Term, 1873.

Execution.-Property levied on by, and for which a delivery bond is taken, is in custodia legis until the forfeiture of the bond. James v. Kennedy, April Term, 1872; James v. Kennedy, April Term, 1873. Fraud.-Gross inadequacy of price in a sale, is evidence of fraud, as affecting rights of creditors. Hartsfield v. Simmons, April Term, 1873.

If the bill alleges facts which constitute fraud, it is not neces sary that they be so characterized. Moore v. Shepherd, October Term, 1873.

If one seeks to rescind a contract for fraud, he must give notice in a reasonable time after discovering the fraud, and if after knowledge he by act or by silence indicate an acquiescence, he cannot ask rescission. Gilbert v. Hunnewell, October Term, 1873.

Judgment.-see Nul tiel record.

Fury.-Want of instructions to, which are not demanded, is not error, if the charge as given reflects carefully and without obscurity the principles applicable to the case. Plunkett v. Robbins, October Term, 1873. See Verdict.

steamboat under the lien law. Goodloe v. Str. Lloyd, October Term, 1873. Justice of Peace-has no jurisdiction over $50-in a suit against a

Is not punishable for profanity by dismissal from office unless especially indicted therefor as a J. P. Carpenter v. State, Oct. Term, 1873. Municipal Corporation.-A return of nulla bona on an execution against, is not alone sufficient cause for a mandamus to levy a tax. Kimbro v. Memphis, October Term, 1873.

Nul tiel record.-On plea of, in a suit on a foreign judgment, the court may try the question, whether the foreign court had jurisdiction of defendant's person. Barrett v. Oppenheimer, October Term, 1873.

Parties, in chancery.-A purchaser pendente lite being in any event bound by the result of the suit, he is not a necessary party, and the court is not bound to admit him as a party. Amer. Exch. Bank v. Andrews, October Term, 1873.

Partnership.-On an issue between the firm and third persons, as to the existence of the firm, while the articles alone are not evidence in its favor, (see 14 Wall. 570), they are still competent, when extrinsic evidence shows they were made on the day they bear date. Plunkett v. Robbins, Oct. Term, 1873.

.

In a suit against, on notes given by one partner in firm name, after dissolution, (plaintiffs having knowledge of the dissolution), in renewal of notes accrued before dissolution, the other parteners pleading non est factum, he is held discharged from the original consideration by the accep tance of the new notes, and discharged on the first notes because they were not sued. Farnsworth v. Wade, Oct. Term, 1873.

Relief. Under a prayer for general, relief may be granted different from that specifically prayed for, if not inconsistent with case made by the bill.

Bonds of State and County Tax Collector.-The bonds were taken by the county commissioners, who have been since held to be usurpers of James v. Kennedy, April Term, 1873.

office. Though all the acts of the county commissioners were nullities, if

it appear that the bonds were given for purposes which make it the interest of the state to accept them, acceptance will be presumed. State v. McLean, October Term, 1873.

Chancery Practice.-It is not the effect of consolidating causes, without more, to make the testimony taken in one cause apply as well to the other, Lofland v. Coward, October Term, 1873. See Parties-Relief. Confederate Money.-Under pleas of nil debet and payment, the plaintiff need not account for the value of Confederate money received by him un

Rescission.-See Fraud.

Return.-Of Sheriff, upon an execution, may be attacked in chancery, for fraud or mistake. (Acc. 11 Hum. 526.) James v. Kennedy, April Term, 1872.

Taxes.-Though the assessment of, was unconstitutional, yet, as they were paid by the tax payers without protest, and are now in the hands of the tax-collector, he must refund to the state and county, and the remedy by motion exists. State v. McLean, October Term, 1873.

[CONTINUED IN OUR NEXT.]

SUBSCRIPTION:

ST. LOUIS, THURSDAY, FEBRUARY 19, 1874. {$8 PER ANNUM, in Advance.

It will be recollected that the 23d section of the judiciary

Bankrupt Act-Corporation-Deed of Trust Executed by Officers Without Authority-Ratifica- act of 1789 declares "that a writ of error as aforesaid shall tion, Effect of.

The last number of the National Bankruptcy Register (vol. 9, p. 76) contains an interesting opinion from J. K. CRAVENS, Esq., register in bankruptcy for the western district of Missouri, in which he rules the following propositions:

1. Where an officer of a corporation, without authority, executed a deed of trust upon its property, as security for the payment of a negotiable instrument, more than four months prior to the commencement of proceedings in bankruptcy, and no ratification takes place until within four months of the commencement of proceedings, the deed will be held to have

been executed at date of ratification.

2. An act done in the name of another, but without previous authority, does not become his act until ratified, and then only by the fiction of relation; and the act of ratification, to relate, must take place at a time, and under circumstances, when the ratifier may himself lawfully do the act which he ratifies. He must be able at the time to make the contract to which by his ratification he gives validity. By ratification he cannot acquire nor confer rights resulting from a transaction, unless in a position to enter directly upon a similar trans

action.

be a supersedeas and stay of execution in cases only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk's office where the judgment remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of."

ment.

The position was taken that since the act of June 1, 1872, sec. II, supra, it was still necessary to serve a copy of the writ of error within ten days from the rendition of the judgBut after referring to the above enactments, to the ad section of the act of 1803, (placing appeals upon the footing of writs of error,) and to rule 29 of the Supreme Court, that court holds that the writ of error, under the act of June 1, 1872, sec. 11, which is remedial, and, therefore, to be liberally construed, may be “served at any time before or simultaneously with the filing of the bond." Discussing the point thus ruled, Mr. Justice SWAYNE says: "It is expressly declared that the supersedeas bond may be executed within sixty days after the rendition of the judgment, and later, with the permission of the designated judge. It is not said when the writ of error shall be served. Its issuance must, of course, precede the execution of the bond; and, as the judge who signs the citation is still required to take the bond, we think it is

3. Where security for the payment of negotiable paper is sufficiently implied that it may be served at any time before taken in violation of the bankrupt law, and the paper is transor simultaneously with the filing of the bond. Indeed, the ferred by endorsement before maturity, for value, to an inno-giving of the bond alone is made the condition of the stay. cent taker, the security may be defeated when asserted by the indorsee the same as if asserted by the original holder. But as the indorsee only takes the security as an incident to the debt, and does not exact it from the insolvent, he may prove his claim without prejudice, while the security will be rejected. [As to this last proposition see, however, Carpenter v. Longan, 16 Wall. 271; Kennicott v. Supervisors, Ib. 452, where the reverse is held.] We hope to find space hereafter for the full text of Mr. Register CRAVEN'S opinion, which was evidently. prepared with care.

A construction which The section is silent as to the writ. requires the service to be still within ten days from the rendering of the judgment is, we think, too narrow. It is sustained by no sufficient reason, and would largely defeat the salutary purposes of the statute. The execution, approval, and filing of the bond are substantial. The filing of the writ is matter

Writ of Error: When Served-Supersedeas Bond -Act of Congress of June 1, 1872, Section 11, Construed.

of form. Form, under the circumstances, must not be allowed to defeat substance, where the consequences would be of so

serious a character."

Bankrupt Proceedings against Corporations-Authority of Counsel.

In Leiter v. Payson, assignee of the Republic Fire Ins. Co. (6 Chicago Legal News, 157), DRUMMOND, circuit judge, decides, construing the bankrupt act, and particularly section 37, that when a petition in bankruptcy is filed against a cor

The Supreme Court of the United States, in the case of the Western Union Tel. Co. v. Eyser, recently decided, has con-poration, it is not necessary that the authority to employ strued the practice act of congress, of June 1, 1872, sec. 11, as to the time and manner of superseding judgments, pending proceedings on writ of error or appeal. That section is as follows:

counsel, and the authority of counsel to file an answer confessing the acts of bankruptcy, should be previously sanctioned by a vote of the stockholders; and an adjudication upon a confession in an answer filed by counsel, where there was no question as to their employment or as to their good faith, was sustained.

"That any party or person desiring to have any judgment, decree or order, of any district or circuit court, reviewed on writ of error or appeal, and to stay proceedings thereon dur- In the course of his opinion, Judge DRUMMOND observes: ing the pendency of such writ of error or appeal, may give "It might be said, with as much reason, that where a corthe security required by law therefor, within sixty days after poration is made an involuntary party, indirectly or collaterthe rendition of such judgment, decree or order, or after-ally, in a bankruptcy proceeding, counsel could not appear to ward, with the permission of a justice or judge of the said appellate court."

represent it, unless expressly authorized by a vote of the corporators or shareholders. And that would hardly be con