any ill treatment by the hirer, become lame, the hirer is not I. CH. 18. answerable for the damage. This is a loss that falls on property, of course on the owner of it. Art. 19. Jones, Am. Ed. 1828. pp. § 8. Though bailment is, generally, confined to moveable things, yet in some cases, it is extended to things immoveable; as when A owns a farm, and leases it to B by parol, for years; B, of course, takes possession of the farm; now on the principles of the common law, B is bound to use the farm in a husbandman like manner, though he pays an agreed rent, and to preserve the buildings, fences, gardens, plants, trees, &c., &c., in the same manner that every prudent person preserves and uses them when his own property, and the relation of landlord and tenant is a sufficient consideration for the tenant's implied promise so to use, manage, and preserve all, thus put into his possession. See Harris v. Nantle, ch. 78, a. 10, s. 4; Powley v. Walker, ch. 1. a. 34, s. 1; Legh v. Hewett id.; and 4 East. 154-162, ch. 66, a. 1, s. 4; ch. 74, a. 6, s. 4; 1 Bos. and P., N. R. 290; 1 Marsh. 567: where a chattel is let for hire, the bailee must keep it in repair; Doug. 748.-1 Saund. 321. 9. Generally when, for a reward agreed or given by law, A receives my goods to keep, to operate upon, or to carry, as a 91, 91 a. &c. private carrier, he is bound to take ordinary care of them. $10. The new code of France on this subject is less complex. ART. 1. 2 Barn. & CHAPTER XVIII. ACTION OF ASSUMPSIT. BANKRUPTCY. 6. Held, the property assigned by a bankrupt, subsequently to his bankruptcy, does not absolutely vest in the assignees, though they have a right to claim it; but if they do not make any claim, he has a right to it, against all other persons. The same principle may exist in many cases of insolvency. § 7. The bankrupt in France, does not appear to have such a right. The new bankrupt law, there, is more careful to secure his property to his creditors. There, the moment he fails, his person and estate are secured; his person, to answer for misdemeanors, and his estate, to be divided among his creditors; and the law does not appear to allow him any property of much value, while his creditors are not paid. It, too, appears to be a primary object of the French insolvent and bankrupt laws, to prevent dissipation, and to teach Frenchmen that the prosperity of trade depends not only on good faith, but also, on order and economy, intelligence and good conduct; and to prevent secret frauds in trade, it appears to be another essential object to bring the dealings of merchants, traders, and others, the subject of those laws, as much as possible under the inspection of public I. CH. 9. authority. Art. 2. § 16. A bankruptcy in England includes not the bankrupt's property in the United States. An important case. A, B, and C, residing in England, became bankrupts, and had a debt due to them from D, E, and F, of Maryland. A owed a debt to the plts., Wallace & al. Held, in the general court and in the court of appeals, on general principles, the plts. might well attach and hold in the hands of D, E, and F, garnishees or trustees, A's third of the debt they owed A, B, and C, and though the debt due to the plts. was contracted in England. The plts. first got a judgment against A in the general court for £1544. 28. 7d. current money, then got a judgment for an attachment against A for said sum and costs, sued it out, and laid it in the hands of the defts. garnishees, who then, &c. owed A, B, and 2 Har. & Mc C £839. 14s. 8d. sterling, a third of which was A's part, as one of the partners of A, B, and C, and the defts. owed A only as such partner; and said A, B, and C were not indebted to any 4 Har. & citizen of Maryland. One of the plts. was in England when Mc H. 330 to A's debt was contracted, and there remained, acted for the plts. Morris, &c. in contracting A's debt; nor was it known A, B, and C had 406.-4 Rand. property to pay their partnership debts. Judgment as above. 282. H. 463-469, 351, Ward v. 37. Con. It has been observed the new commercial code ARt. 3. of France is severe as to bankrupts and insolvents, as it ex- Con. cludes the insolvent from the exchange, made by law a place of business, subjects even the simple bankrupt to be prosecuted in the tribunals of correctional police and to imprisonment not exceeding two years, and the fraudulent bankrupt to be prosecuted as a criminal, ex officio, in the courts of criminal jurisdiction, and to the punishment of hard labour for a limited time, and accomplices the same, including the wife. Penal Code, art. 402; and art. 403. Exchange agents and brokers failing in business are punished in the same manner. But if convicted of fraudulent bankruptcy their punishment is hard labour for life. Art. 404. Penal Code. Arts. 586, &c. Commercial Code, it is declared what acts, &c. constitute a simple bankrupt: 1. If the expenses of his household he is required to enter monthly on his journal are adjudged to be excessive: 2. If it be proved he has wasted large sums in gaming, or in operations of mere hazard: 3. and 4. Other ways. What acts constitute a fraudulent bankrupt, as 1. If one insolvent has stated fictitious expenses and losses, and does not account for the employment of all received by him. 2. If he has eloigned any sum of money, any credit, any goods, produce, or moveable effects: 3. If he has made fictitious sales, negotiations, or donations: I. CH. 18. 4. If he has fraudulently acknowledged debts to fictitious creditors, either by false writings, or making himself debtor, without consideration, by public acts or by engagements under private signature : 5. If having been charged with a special commission to receive money, commercial securities, produce, or merchandize, for another person, or constituted depositary for any of those things, he shall have violated the trust, and applied to his own use the funds or the proceeds of the property confided to him: 6. If he has purchased real estate, or personal, by using an assumed name: 7. If he has concealed his books; if he has kept no books, or if his books do not show the true state of his debts and credits. Com. Code, arts. 593, &c. Art. 598. Accomplices may be further punished by being adjudged, 1. To restore to the creditors' general fund, the property, rights, claims, fraudulently acquired by him : 2. To pay into the said fund a sum in damages equal to the amount whereof he attempted to defraud it. To evince the propriety of the said laws, the orators, who helped form them, in their expositions of the motives, said they were to remedy the disorders, which, for some years past, had so scandalously tarnished the commercial honor of France. They alleged two principal causes had been discovered to exist one, the revolution, which, by its violent commotion, overthrew men, fortunes, and ranks, offered alike to hope and fear the most irregular and boundless chances of elevation and ruin, put in the place of money a paper currency of which the forced circulation and rapid fall left no fixed value to anything nor credit to any person, and which opened an extensive field to the calculations of avidity and the speculations of dishonesty. Failures, far from being a subject of shame, had become the means of fortune, the source of which scarcely any care was taken to disguise; and if those numerous bankruptcies were not always the work of fraud, they were at least the offspring of ignorance, because everybody was anxious to engage in commerce, without possessing any of the knowledge. which that profession requires.' Rodman's Translation, p. 52. A true picture of nearly every revolution, especially if tainted with a depreciating paper currency. Second cause, the defects in the laws, and the creditors not having a guide or system: assignees sometimes chosen by fictitious creditors, often by the friends or relations of the insolvent, almost always by a small number of creditors present, who were bought over at the expense of the absent, and who disguised the malversations of the insolvent, and the real situation of his affairs. They thus forced the hopeless Con. creditors to accept of a disadvantageous compromise, the ef- I. CH. 19. fect of which was to save the bankrupt from disgrace, deprive Art. 3. his victims of three fourths of their property, and to leave the debtor in possession of the means of displaying an insulting luxury.' If no compromise took place, an assignment was made, and the liquidations were entrusted to men interested in endless procrastination, till the creditors, weary of delays, renounced all hope. On the other hand the orators allowed there were some honest bankruptcies, which led them to report the middle course they took. This bad state of things is yet too applicable to several States in our union. CHAPTER XIX. ASSUMPSIT. BARON AND FEME. v. § 9. In court of errors, &c. in New York, in Jaques v. ART. 1. Methodist Episcopal Church, this court reversed this decision Con. of Chancellor Kent, and in conformity to the English authori- 17 Johns. R. ties, held a feme covert, with respect to her separate property, 548. is to be regarded as a feme sole, and may dispose of her pro- Ewing . perty without the consent or concurrence of her trustee, un- saus. Ch. R. less she is specially restrained by the instrument under which 417. she acquires the separate estate. In South Carolina a majori- Newlin, 1 ty of the court of appeals held with Chancellor Kent. In Serg. & Raw. Pennsylvania the English authorities are adhered to. Newlin v. 275. Case for 1 Greenl. 5-10, v. Perley.. 10. He has no right to commit waste, &c. cutting and selling forty cords of wood on her wild lot in fee, Babb and wife against a judgment creditor, who had levied on the husband's life estate, &c.: held, 1. The husband has no right to commit waste on his wife's inheritance, though not suable therefor at common law: 2. His judgment creditor, by his levy on his right, acquires that only, that is, his right to the rents and profits during the marriage; but is liable for waste in this action by baron and feme, and any injury to her inheritance is waste. Such a levy on wild lands is useless, as there are no rents and profits. See Barber v. Root, ch. 46. a. 9. s. 13; Conner v. Sheppard, ch. 130. a. 4. s. 40. Vol. 4. The following case shows many of the rights of the wife in a court of chancery in the United States. Richard Udall impleaded with Edward M. L. Kenney v. Eliza S. Kenney: appeal from the court of chancery to the court of errors. 3 Cowen, 590 The father, by deed, settled bank stock in trust in favor of his-611. infant daughter, and chancery placed it in the hands of its assistant register, as trustee to execute the trust in her favor. She married, and chancery ordered the dividends to be paid ART. 1. Con. I. CH. 19. to her husband. Within a year after the marriage, and while she was an infant, she and her husband transferred the stock for a valuable consideration, the assignee knowing at the same time of the deed of settlement, and the infancy of the wife whereon an order was made that the dividends thereafter should be paid to the assignee till the wife came of age, or the further order of the court. On a bill filed by her against her husband and assignee, the court of chancery declared the assignment null and void so far as it respected her equity; and decreed the assignee should account for the dividends received by him under the order; and the husband having misbehaved himself, the dividends were directed to be paid to the wife, until she came of age, with liberty for her then to apply for such suitable provision out of the property, as might be determined on the usual reference to a master. On appeal to the court of errors the decree was affirmed, except so much of it as directed the assignee to account for dividends received anterior to the decree; and the wife in the mean time having come of age, the record was remitted with directions to the court below to make the proper reference, and determine what would be a suitable provision, the overplus, if any, to be paid to the assignee. Intimated the $8,000 stock would be not more than a reasonable provision. See this cause at large, 5 Johns. Ch. R. 464. Material points further held in this case: 1. The husband cannot dispose of the wife's equity without making a suitable provision for her support: 2. She can dispose of it only by consent in court; or out of court, on such provision being made for her: 3. But her choses in possession, or in action, by the marriage, become his at his disposal: 4. The general rule is, that her interest or income in her equitable property may be received by him while he lives with, and maintains her: 5. He may sue to get possession of her property, at law, and equity will not interfere; but if he ask chancery to enable him to do it, it will see he first makes such provision: 6. So as to his general assignee by his own act, or by operation of law: 7. If the husband do not maintain her, or is not capable to manage his concerns, or is disposed to waste her property, the court will direct the interest to be paid to her or to a trustee for her benefit: 8. While he has a right to receive the interest or income of her property, he may legally transfer that right to another: 9. When he comes into equity to be aided in recovering his equity he must do equity. Scores of cases were cited, but almost entirely English cases. ART. 2. 19. Con. John Tobler died and left a widow and several children she took administration on his estate, and as adminis : . |