« EelmineJätka »
Deacon v. Oliver et al
Oliver, of false and fraudulent concealment, have not been sus. tained, it is due to the memory of one who always sustained a high reputation as a merchant and man of honor, to notice this point.
It must be remembered that the purpose of the interrogatories was to ascertain whether Oliver had in his hands any credits or effects of Lyde Goodwin, subject to attachment; and also that Brown, the insolvent assignee of Goodwin, was supposed to have had the title to Goodwin's interest vested in him. The legitimate inquiry was, therefore, not whether Brown had abused his trust, by selling or mortgaging the trust property for the benefit of Goodwin; or whether Oliver's claim under the assignee was valid or not. This inquiry was wholly irrelevant in the investigation, under the attachment proceeding. Nor was Oliver bound, in that investigation, to make any disclosure of the strength or weakness of his own title, which was hostile to that of the plaintiff. The discovery sought, was not of Oliver's equities, but of Goodwin's assets. Oliver's answers to the in. terrogatories were drawn, no doubt, by learned counsel, fully aware of the nature of the proceedings, and the rights of the parties under-them.
The answers were strictly true to the letter. The garnishee had not in his hands, “any funds, evidences of debt, stocks, certificates of stock, belonging to Lyde Goodwin, nor any acknowledgment by the Mexican government to said Lyde Goodwin,” on which the attachment could be laid. What claims or securities he himself had as a creditor of Goodwin, the plaintiff in that proceeding had no right to inquire, nor was Oliver bound to answer. If he had nothing which the plaintiff could attach, it was no fraud on plaintiff to keep his own counsel, and make no disclosure as to the nature of his own securities.
The decree of the Circuit Court is therefore affirmed.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.
And if after pleas in abatement, a defence be interposed, going to the merits
terial and are waived. Sheppard v. Graves, 505.
enough to show the jurisdiction of the court, and the defendant pleaded in
proof. Sume v. Same, 512.
upon the subject. Ibid.
inevitable accident, without the negligence or fault of either party, each vessel
must bcar its own loss. Steinbach v. Rae, 532.
pany, which had fitted out an expedition under General Mina, was not, in
der an equitable assignment to secure a debt. Deacon v. Oliver, 610.
had not in his hands any “funds, evidences of debt, stocks, certificates of
government, on which an attachment could be laid. lbid.
prior decree, and grant a rehearing. The decision of this point rests entirely
in the sound discretion of the court below. Wylie v. Core, 1.
the refusal to open it, the latter must be dismissed, and the case stand for hear-
ing upon the first appeal. Ibid.
tion, overruled. Ibid.
ber of the court, who concurred in the judgment, desires it; and when that is
Brown v. Aspden, 25.
divided court or a majority; or whether the case is one at cominon law or
court. Those whicl. ire applicable to a court of original jurisdiction, are not
appropriate to an appellate court. Ibid.
ceased debtor, and a person to whom real and personal property was conveyed
process, and consequently it is not necessary that the creditor should be in a
condition to levy an execution, if the fraudulent obstacle should be femoved.
the bill, in order that the whole title may be sold under the dccrce; for the pur-
encumbrancer before it, and in fit cases it will do so. lbid.
out defeating it, it is a fit cause to dispense with his presence, anů order a sale
subject to his encumbrance, which will not be affected by the decree. Ibid.
cery, a sale of the property under an execution issued by virtue of a judgment
at law. is illegal and void. Wiswall v. Sampson, 52.
claims title to the property, either by mortgage, or judgment, or otherwise.
sought relief in equity, upon the ground that the consideration of the contract
the other party. Sample v. Barnes, 70.
deception was practised to prevent the complainant from making the defence,
of the judgment. lbid.
of the partics claiming under it alleged that they never possessed or saw it;
its contents ought to have been admitted. De Lane v. Moore, 253.
the time prescribed by statute, or if reacknowledged and recorded afterwards,
notice would thereby have been given to all persons of its effect. Ibid.
was removed to another State, the protection of the contract would follow the
property into the State into which it was removed. Ibid.
husband, and then the one which was brought was dismissed for want of pro-
comes too late. Ibid.
chancery, at the same term in which the judgment or decree was rendered, on
to such dismissal was obtained by fraud. Doss v. Tyack, 298.
be fraudulent, will not be set aside on a certificate or affidavit of some of the
jurors, afterwards made, as to what they meant. Ibid.
denies fraud in the abstract, whilst it admits all the facts and circumstances
necessary to constitute it, in the concrete. Ibid.
matters in controversy, and, therefore, to put an end to all claim by them; in-
tion. Perkins v. Fourniquet, 313.
by a mother for, and in the name of her daughter, and, in 1836, the father of
properly set aside by the District Court of Texas. Hoyt v. Hammekin, 346.
huila and Texas. Ibid.
that where the charter of a bank shall be declared forfeited, a trustee shall be
audit accounts against it. Peale v. Phipps, 368.
certain account, the Circuit Court of the United States had no right to enter.
count. There was a want of jurisdiction. Ibid.
the jurisdiction. Ibid.
their heirs to the use of Richard (the son of the testator) for life, remainder,
ders limited thereon, were legal estates. Webster v. Cooper, 489.
these lands from vesting in the cestuis que use ; and although such duties might
share and share alike, and to the heirs of their bodies, did not give an estate
land, as a tenant in common with his brother. Ibid.
come into possession of the lands, should take the name of the testator. But
possession of the land. Ibid.
& writ of entry, and until that time had no right of possession. Consequently,
.the adverse possession of the occupant only began then. Ibid.
ment, upon the ground that there was a false return in serving process upon
judgment, or in an action against the marshal. Walker v. Robbins, 584.
might have derived from the false return; and no defence was made on the
such a case, resort cannot be had to equity to supply the omission. lbid.
They were very poor, and one of them, in 1817, purchased land in Ohio, for
Goesele v. Bimeler, 590.
cannot maintain a bill of partition. Ibid.
chased the property, vested in parol, and was destitute of a consideration. No
legal rights were vested in the members. Ibid.
signed the articles, and did so upon the consideration that the society would
acquired by the members, bu' they were not to be vested with the fee of the
his heirs. Ibid.
feiture of individual rights for the community to succeed to his share, because
it was a matter of voluntary contract. llid.
the will of its members, a majority of whom may at any time order a sale of
the property, ang break up the association. lbid.
Company, which had fitted out an expedition under General Mina, was not,
or under an equitable assignment to secure a debt. Deacon v. Oliver, 610.
had not in his hands any "funds, evidences of debt, stocks, certificates of
government,” on which an attachment could be laid. lbid.
jured by a collision, it was correct in the court to instruct the jury, that if the
fare, and not in the usual passenger cars. P. f R. R. R. Co. v. Derby, 468.
locomotive, was forbidden to run on that track at the time, and had acted in
disobedience of such orders, was no defence to the action. Ibid.
inevitable accident, without the negligence or fault of either party, each vessel
must bear its own loss. Steinback v. Rae, 532.
the underwriters are not liable to repay to the insured, damages paid by him
Ins. v. Sherwood, 352.
to the negligence of the master and mariners. But if the loss is caused by &
use due care to avoid the perii. Ibid.
ning or end of it. Sheppard v. Graves, 505.
afterwards the quantity which he actually had was divided amongst the respect-
seized. Jackson v. Hale, 525.
ant, was objected to by the plaintiff in the replevin ; but such objection was
properly overruled. The plaintiff had shown no title in himself. Ibid.
tificate had never deposited any wheat in the warehouse. Ibid.
and were not responsible, unless it could be shown that wheat was deposited,