which the partnership was doing was a small and a safe business, and the shape in which this sum of $227,000 stood was such as made it unquestionable as representing so much money, while the withdrawal of $90,000, if otherwise fair, might be sustained, it would still be of doubtful validity as against creditors.

But there are other and controlling circumstances in this case which we will refer to:

1. The business of the partnership was not a small one. On the contrary, it was very large, and must have amounted to several millions per ȧnnum. The very balance-sheet on which the transaction is defended showed that the debts of the firm at that date were near $4,000,000, and the credit side consisted in goods on hand and in debts due the firm. Of course, the real value of this balance was conjectural and uncertain.

2. The proportion of this balance was not more than ten per cent of the debts of the firm, a very small capital for such a large business; and it was unfair to the creditors to withdraw one-third of that.

3. There is strong reason to believe that other liabilities of Mr. Place in other ventures, and in regard to his purchase of his brother's interest in the old firm, when fairly taken into the account and charged against this balance, would have reduced it very considerably. How much, cannot be precisely ascertained.

4. But, though Mr. Place had given his obligations to pay what. amounted to $90,000 on the house building, that was his personal obligation, and at its date was not a debt of the firm. If he afterwards took the money of the firm to pay those individual debts, at a time when the business of the firm could not stand it, the transaction must be treated as of the date when the money was so withdrawn, and its honesty tested by the condition of the business at that time. The books of the firm show that there was paid on this account up to Dec. 31, 1866, or within one year and one month after the new firm began, $82,000, including that paid before, and in the first three months of the next year, $13,000. These same books show that during this time the condition of the partnership had changed largely for the worse, independently of these outlays,

The losses on the rapid decline of gold, which affected the value of their goods, and the amounts lost on the gold which they' carried, was estimated at $150,000 for the first year. Losses in two collateral concerns, in which one or both of the partners were interested, also became apparent; so that before the end of the first year any prudent man must have seen that, in withdrawing so much cash from his business, he was choosing between the danger of the bankruptcy of his firm on one side, and a luxurious home for himself and wife on the other.

5. Mr. Place had agreed with his partner, Sparkman, to put into the business $600,000 of capital, to $200,000 by Sparkman. This was a moneyed obligation which he was bound to perform, but which he never did perform; and, instead of enlarging the nominal capital of $227,000, we have shown that he took over $100,000 from it for this house.

6. The books of the firm were kept in a manner which, on inspection, would show that the Fifth Avenue property was an investment which belonged to the firm, and should be counted as part of its assets; and this remained the condition of the books until after the assignment, when the book-keeper charged the whole up to Mr. Place, and thus by a stroke of the pen after insolvency, and after the assignment, $100,000, which had appeared as property of the firm, became nothing but the debt of an insolvent partner of that firm.

For these reasons, we think the decree of the Circuit Court, that the assignee was entitled to the proceeds of this property after paying a mortgage admitted to be a just claim, is right.

In reference to the decree for the payment of money against the executors of Mrs.. Place on account of the Forty-third Street lots, we are of a different opinion.

The lots in which the money of the firm was first invested, and which was the beginning of this separate real-estate transaction, are estimated by the master at the value of $4,000. By subsequent exchanges or sales, the fund is traced to another piece of real estate, which is supposed to be worth $16,000; for which sum with interest a judgment is rendered against Mrs. Place.

But we are of opinion that Mrs. Place, if living, could not

be subjected to such a decree, if all that is said be true; nor can her executors be now.

While the books of reports are full of cases in which real or personal property conveyed to the wife in fraud of the husband's creditors has been pursued and subjected to the payment of his debts after it had been identified in her hands, or in the hands of voluntary grantees or purchasers with notice, we are not aware of any well-considered case of high authority where the pursuit of the property has been abandoned, and a judgment in personam for its value taken against the wife.

Certainly no such doctrine is sanctioned by the common law; and, though the present suit is a bill in chancery, the decree in this case is nothing more than a judgment at law, and could as well have been maintained in a separate suit at law for the money as in this suit. .And the liability of the executors of the wife to this personal judgment must depend on the same principle as if, abandoning the pursuit of the res, the assignee had brought an action at law for the money.

The statutes of the different States have gone very far in this country to modify the peculiar relations of husband and wife, as they existed at common law, in reference to their property. But they have not, except perhaps in Louisiana, gone so far as to recognize the civil-law rule of perfect independence in dealing with each other. While the statutes of New York have recognized certain rights of the wife to deal with and contract in reference to her separate property, they fall far short of establishing the principle that out of that separate property she can be made liable for money or property received at her husband's hands, which in equity ought to have gone to pay his debts. Equity has been ready, where such property remains in her hands, to restore it to its proper use; but not to hold her separate estate liable for what she has received, and probably spent at his dictation. Such a proposition would be a very unjust one to the wife still under the dominion, control, and personal influence of the husband. In receiving favors at his hands, which she supposed to be the offerings of affection, or a proper provision for her comfort, she would be subjecting that which was her own, or which might afterwards come to her from other sources, to unknown and unsuspected charges,

of the amount and nature of which she would be wholly ignorant. It answers the demands of justice in such cases if the creditor, finding the property itself in her hands or in the hands of one holding it with notice, appropriates it to pay his debt. But, if it is beyond his reach, the wife should no more be made liable for it than if the husband himself had spent it in support of his family, or even of his own extravagance.

For these reasons, we are of opinion that so much of the decree of the Circuit Court as directs the payment of the proceeds of the Fifth Avenue property to Sedgwick, the assignee, must be affirmed, but without prejudice to the right of the holder of Phipps & Co.'s debt to present it for allowance as a claim against the bankrupts' assets, in regard to which we decide nothing. The decree against the executors of Mrs. Place will be reversed. In all other respects, the decree of the Circuit Court will be affirmed, and the cause remanded for further proceedings in conformity to this opinion; and it is

So ordered.

SHAW v. BILL.

1. The appearance of counsel specially for a corporation, and his moving to dismiss the petition of an individual creditor for the appointment of a receiver of its property, do not preclude him from subsequently appearing for the trustee of the bondholders in proceedings to foreclose mortgages given by the corporation.

2 Upon a supplemental bill in chancery, a subpoena is not required unless new parties are made. A rule upon parties already served to answer the supplemental bill is sufficient.

3. Where a corporation is insolvent, and has no funds at the place where its bonds are payable, demand of payment at such place need not be made before suit brought to foreclose its mortgages executed to secure the bonds.

4. A mortgage by a railroad corporation which in terms covers "all the following, present, and in future to be acquired property" of the corporation, naming in the description of such property its engines, cars, and machinery, carries not only the cars, engines, and machinery in existence at the date of the mortgage, but such as take their place or are subsequently added to them by the company and are in existence at the time of the foreclosure.

APPEAL from the Circuit Court of the United States for the District of Indiana.

In 1849, the New Albany and Salem Railroad Company was

incorporated under the laws of Indiana, with power to construct a railroad from New Albany, on the Ohio River, to Michigan City, on Lake Michigan. To enable the company to raise the necessary means to complete and equip the road, it issued at different times a large amount of bonds, secured by mortgages upon its property. There were five issues of bonds, varying in amount from $500,000 to over $2,000,000, and carrying interest from seven to ten per cent per annum, payable semiannually. Each issue was secured by a separate mortgage. The first mortgage was executed in February; 1851; the second, in February, 1852; the third, in November, 1853; the fourth, in February, 1855; and the fifth, in December, 1856. They were all made to Douw Williamson, as trustee for the bondholders, the complainant, Charles E. Bill, being named as substitute or successor, in whom the estate and the powers of the trustee were to vest in case of the death, incapacity, or resignation of Williamson.

one not

The several bonds as they matured, and the interest stipulated, not being paid, the trustee, in August, 1857, filed a bill in the Circuit Court of the United States for the District of Indiana, for the foreclosure of the several mortgages. The corporation was served with process of subpoena, appeared to the suit and demurred to the bill. It does not appear from the record what disposition was made of the demurrer, but it is to be inferred from the subsequent proceedings that it was abandoned. At any rate, in December of the following year (1858), a decree was entered in the case by consent of parties, foreclosing the mortgages as prayed in the bill, but declaring the rights and interests of the bondholders and stockholders under the several mortgages, in accordance with what was termed a basis of adjustment and settlement, proposed to them by the president and directors of the company. The practical effect of the decree was to extinguish all the liens upon the property of the company, except such as were created by the first and second mortgages; to provide for a reorganization of the company, and to convert the subsequent bonds into common stock of the reorganized company.

Before this decree was rendered, the bondholders, waiving their priority, had consented to an interlocutory decree, entered