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in real estate in Michigan, and as bills in equity in aid of executions at law against such interests are there well recognized equitable remedies, the Federal courts of equity sitting in that State will entertain such bills. Lant v. Morgan's Administrator, 623.

2. While it is the imperative duty of a judgment creditor to use reasonable despatch in levying execution upon personal property attached before judgment, a less strict rule of diligence applies where the attachment has been levied on real estate.

Ib.

3. A creditor who has attached personal property before judgment should after judgment speedily satisfy his judgment out of the attached property. If, instead of doing so, the issue of execution is followed by a return nulla bona, it is inferred against the judgment creditor that he proposes to rely on other property of his debtor and that he has abandoned his lien; or, if no execution is issued upon a judgment within a reasonable time, the lien is to be regarded as abandoned because the defendant owner of the attached personalty may justly complain that, if he is not to have the use of it, he ought at least to have it promptly sold and the proceeds of it applied to the payment of his debts. A return of nulla bona on a first execution after judgment on real estate which has been attached is not, however, a surrender of the lien on the real estate, and an attachment on real estate is not discharged by delay in the levy of an execution on the land attached after judgment unless a statute expressly limits the time within which execution and sale after judgment must take place to preserve the lien, or unless the facts show an actual intention by the judgment creditor to abandon the attachment. Ib.

4. Under sections 7993, 7995, 7996, and 8017 of Howell's Annotated Statutes of the State of Michigan of 1882 an attachment upon real estate is nothing more than a statutory mode of recording a lien on real estate in anticipation of a judgment and sale of the same to pay the debt. It does not interfere with the use and enjoyment of the land by the owner, and the exigency of despatch in levying execution, as in the case of personalty, has no existence where real estate is the subject of the process. Ib.

5. In a case where the rights of third parties do not intervene no delay in the issuance of an execution against real estate after judgment ought to destroy the lien of an attachment if it falls short of clearly indicating an intention to abandon the same. Ib.

6. In a suit begun in 1891 in the Circuit Court of the United States for the Eastern District of Michigan upon a judgment which had been obtained in 1881 in a state court of Michigan the complainant procured the levy of a writ of attachment upon certain real estate. Thereafter and in June, 1893, judgment was obtained in the suit in the Circuit Court of the United States in favor of the complainant, and an execution was issued in the same month. The execution was returned nulla bona in September, 1893, and an alias writ was issued in February, 1894, and was levied in April, 1894, upon the real estate which had been attached. It having been claimed that the complainant had lost his lien by attachment because of the nulla bona

return on his first execution, and because of his alleged unreasonable delay in suing out the alias writ, it was held (1) that the failure to levy on the attached lands until more than eight months after the judgment was not an unreasonable delay; (2) that the nulla bona return of the first execution was not an abandonment of the attachment; and (3) that, as there was nothing in the record to show, and as the court could not presume, that the return of nulla bona upon the original execution was by direction of counsel for the judgment creditor, the marshal could not by his negligence in failing to observe the existence of the attachment upon the land, and to levy thereon, deprive the complainant of his record lien. Ib.

7. By section 5946 of Howell's Annotated Statutes of the State of Michigan of 1882, which provides that "a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his death, may, on obtaining judgment, have execution against such real or personal estate," it was intended that the lien secured by attachment upon real estate of a deceased debtor before his death should be enforced as if he were alive, and that proceedings in execution and sale should take place without regard to the settlement of his estate in a probate court; and this statutory exception to the rule of comity which might require that no execution should be enforced against land of a deceased debtor whose estate was settled by a probate court is sufficient to justify a court of equity in aiding an execution which is expressly permitted by the statute law of Michigan. Ib. 8. The object of section 5902 of Howell's Annotated Statutes of Michigan of 1882, which provides that "no action shall be commenced against the executor or administrator, except actions of ejectment, or other actions to recover the seizin or possession of real estate, and actions of replevin," was to permit suits to be brought against executors and administrators to try the title or right to possession of both real and personal property during the progress of the settlement of an estate, and this construction of said section is applied in this case, where a judgment creditor asserted his right, by virtue of an attachment and execution upon certain lands of the judgment debtor, to such lands in the hands of the executors of the wife of the judgment debtor, to whom it was claimed the lands had been fraudulently conveyed, for the purpose of subjecting them to the payment of his debt.

Ib.

9. In this case this court, following its decision in Lant v. Morgan's Administrator, 43 U. S. App. 623, holds that as, under section 5902 of Howell's Annotated Statutes of Michigan of 1882, suits may be brought against executors and administrators to try the title or right to possession of both real and personal property during the progress of the settlement of an estate in a probate court, an attachment and execution could be issued out of the Federal court respecting real estate during the progress of the settlement in a probate court of the estate of which the real estate was a part. Lant v. Morgan's Executors, 640.

10. The effect of a levy on land of an attachment from a state chancery

court and the return of the writ into court under the Tennessee statutes and decisions is to place the attached land within the control and possession of the state court. It is an actual seizure of the res, which thereby passes into the exclusive possession of the court as fully as if a receiver had been appointed. As long as the state court retains the possession of the land thus acquired the validity or regularity of its proceedings cannot be questioned by a Federal court in a proceeding whereby receivers of the land are subsequently appointed and directed to take possession of it. Southern Bank and Trust Company v. Folsom, 713.

See INJUNCTION, 4;

REPLEVIN BOND, 1, 2, 4.

AWARD.

See ARBITRATION.

BANKS AND BANKING.

In this case it was held that the question of the liability of a bank to collect certain drafts which had been deposited with it for collection, which drafts it had transmitted to another bank, which in turn had transmitted them to still another bank to present to the drawee for payment, and which latter bank had presented the drafts to the drawee shortly after it had failed, and had not collected the amount thereof, was properly submitted by the trial court to the jury, it being a question for the jury to decide on the facts whether the alleged negligence of the bank to which the drafts had been originally given to collect had been made out, and that the trial court properly refused to instruct the jury to find a verdict for the defendant. Farmers and Traders' National Bank of Covington, Kentucky, v. Greene, 446.

See PREFERENCE;
PROMISSORY NOTE, 1.

BILL IN EQUITY.

Objection to the jurisdiction of a Circuit Court of the United States over a bill in equity, on the ground of insufficient averments as to the citizenship of a party, cannot be sustained where the bill in equity on its face shows that it was filed in aid of a pending legal action in the same court, and by direction of that court. Lumley v. Wabash Railroad Company, 476.

See AMENDMENT, 2;

ATTACHMENT, 1;

CONSOLIDATION OF SUITS ;

JURISDICTION,
B, 6;
LACHES, 1, 2;

PLEADING, 3;

RELEASE, 3.

BILL OF EXCHANGE.

See JURISDICTION, B, 3.

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1. There is no necessity for recitals of due compliance with preliminary conditions on the face of bonds and other instruments issued by private corporations, the fact of issue in proper form being an implied representation of the fulfilment of preliminary conditions. Louisville Trust Company v. Louisville, New Albany and Chicago Railway Company, 550.

2. The distinction between the bonds of private corporations and municipal corporations in this respect and the results arising therefrom pointed out. Ib.

3. The guaranty placed by the Louisville, New Albany and Chicago Railway Company, the Kentucky corporation, upon the bonds of the Richmond, Nicholasville, Irvine and Beattyville Railway Company under authority of the provisions of the act of April 7, 1882, of the legislature of Kentucky, 2 Laws of 1881, 1882 (Private Acts), p. 251, c. 870, purported to bind not only the Kentucky corporation but also the constituent Indiana corporation of the same name and management. The two corporations were in effect general agents of each other. The guaranteed bonds were negotiable bonds, payable to bearer. The guaranty was indorsed thereon and executed by direction of the corporation's board of directors and bore the corporation's seal affixed by its secretary and the signature of the corporation by its president. Under the provisions of the act of March 8, 1883, of the legislature of Indiana, General Laws of 1883, p. 182, c. 127, the board of directors of the corporation had no authority to bind the corporation by such a guaranty unless a written petition for the same had been filed with the board of directors by a majority of the stockholders. No such petition was in point of fact filed. The Indiana corporation brought suit to obtain the cancellation of the guaranty and to enjoin suits thereon, averring that under the facts and circumstances of the case the guaranty was null and void. Held, (1) That bona fide purchasers of the guaranteed bonds without notice of the defects of the guaranty were entitled to presume from the face of the guaranty under the name and corporate seal of the corporation, and the signatures of the president and secretary, that it was executed by direction of the board of directors, as in fact it was, that they had acted with due authority received from the stockholders by petition as required by the Indiana act of 1883, and that the Indiana corporation could not show the fact to have been otherwise; and (2) that, therefore, as to such bona fide purchasers the Indiana corporation was not entitled to a decree canceling the guar

anty as against it and granting an injunction to prevent suits against

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The Royal British Bank v. Turquand, 6 El. & Bl. 327, and Monument National Bank v. Globe Works, 101 Mass. 57, approved. Louisville Trust Company v. Louisville, New Albany and Chicago Railway Company, 550.

CASES DISAPPROVED.

1. The Strobridge Lithographing Company v. Randall, 78 Michigan, 195, disapproved. Strobridge Lithographing Company v. Randall, 160. 2. Improved Fig Syrup Company v. California Fig Syrup Company, 7 U. S. App. 588, disapproved. California Fig Syrup Company v. Frederick Stearns & Company, 234.

3. Commonwealth v. Smith, 10 Allen (Mass.), 448, and The Commercial Bank of Canada v. The Great Western Railway Company of Canada, 3 Moore, P. C. N. S. 295, disapproved. Louisville Trust Company v. Louisville, New Albany and Chicago Railway Company, 550.

CASES DISTINGUISHED.

1. Columbus Watch Company v. Robbins, 6 U. S. App. 275, distinguished. Bissell Carpet Sweeper Company v. Goshen Sweeper Company of Grand Rapids, Michigan, 47.

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