[No. 5193.]

[Filed October 29, 1877.]

WHITE vs. ADAMS.

COVERTURE. -A default will be opened, and the plea of coverture allowed when it is made to appear.

DAMAGES.-When a default has been entered and execution issued, and a seizure is made under it, the defendant, notwithstanding she can have the default opened to admit a plea of coverture, she can claim no damage from the seizure under the execution.

By the Court.

In the year 1871 Daniel White and Eliza Jane White, the plaintiff here, delivered to Robert White, one of the defendants in this action, their joint note and mortgage to secure the payment to him, twelve months after date, of the sum of two thousand dollars, with interest at the rate of one per cent. per month. In 1873 the defendant, Robert White, commenced an action to foreclose the mortgage, alleging in the complaint that some two thousand dollars was due to him thereon, by the defendants. To this complaint the defendants, having been duly summoned, appeared and filed a demurrer and a motion to strike out a portion of the complaint. These were subsequently withdrawn by stipulation, and afterward the defendants in that action submitted to a default, and judgment was thereupon regularly entered, directing a sale of the mortgaged premises, with the usual clause adjudging the defendants in that action personally liable to pay any deficiency remaining after the application of the proceeds arising from the sale of the mortgaged premises. Upon the sale of the mortgaged premises a deficiency of some seven hundred and forty-two dollars resulted, and an execution in due form was thereupon issued against the property of the judgment debtors, to enforce the collection of that sum. This execution was subsequently levied upon the schooner Anas tasia, which was the property of the plaintiff here. In the meantime, the plaintiff here applied to the court in which the proceedings in foreclosure had been instituted, to set aside the default which had been entered against her in the foreclosure suit, and in that application it was for the first time made to appear in that case that the plaintiff here was, and had been for many years, the wife of Daniel White, her co-defendant in that action. The court set aside the default, and thereupon the plaintiff here commenced the action in the court below for the recovery of damages sustained by her by reason of the seizure and detention of the schooner, and upon the trial had judgment against the defendant Robert White.

It is to be observed that there is nothing in the record showing any fraud or bad faith upon the part of defendant White, who was the plaintiff in the proceedings to foreclose the mortgage. He had proceeded regularly, and upon proper summons issued and appearance upon the part of the defendants in that suit regularly entered, a decree had been, in due time and form, entered in his favor upon the failure of the defendants to make a proper defense.

If the plaintiff here intended to rely upon her coverture as a defense, she should have interposed the defense then. It was doubtless competent for the

court in which the proceedings in foreclosure had been instituted to open the default, upon the fact of coverture being made to appear, as was done. But the plaintiff here can not, under such circumstances, recover damages for the mere seizure of her property, upon execution duly issued and its detention by the sheriff, intermediate to the sheriff's return of deficiency, and the setting aside of the judgment in the foreclosure suit. The proceedings had upon the execution were correct in all respects when they were taken, and the subsequent opening of the default and setting aside the judgment upon which the execution was founded did not operate to make the plaintiff in the execution a trespasser, or render him liable in damages for the seizure and detention of the plaintiff's property.

Judgment and order denying a new trial reversed and cause remanded for a new trial.

The property in controversy was the separate estate of Sydney S. Lake. Judgment and order denying a new trial reversed and cause remanded, with directions to render judgment in accordance with this opinion.

[No. 4998.]

[Filed Oct. 26, 1877.]

THE PEOPLE, ETC., VS. REAY.

REVENUE-ACT OF APRIL 4, 1876.--Tax-collectors must give 30 days' notice before suit can be brought under the statute.

By the Court.

The Assistant City and County Attorney had no authority to bring this action until after the Tax-Collector had given the thirty days' notice required by section 10 of the Act of April 4, 1876. The failure to give this notice is a matter which goes to the power of the Assistant City and County Attorney, not to the sufficiency of the complaint or proof, or to the questions as to whether any other defenses can be made to the merits than those mentioned in section 11 of the same Act.

An action commenced before such publication by the Tax-Collector was prematurely brought.

Judgment and order reversed and cause remanded.

[No. 5400.]

[Filed Oct. 20, 1877.]

MEAGHER vs. THOMPSON.

SEPARATE ESTATE-MARRIED WOMEN-LIEN.-A Court of Equity has no power to enforce any claim arising prior to the adoption of the Codes as an incumbrance on the separate real estate of a married woman, unless such claim was a lien by virtue of a written contract.

By the Court.

The payment of a sum of money to plaintiff by defendant (without consideration therefor) did not create a lien on her separate real estate. A Court of Equity has no power to enforce any claim or demand arising prior to the adoption of the Codes, as a charge of incumbrance on the separate real estate of a married woman, unless such claim or demand became a charge, lien, or incumbrance thereon by virtue of a contract evidenced by an instrument in writing, signed and acknowledged by the wife in the mode required by the statute. (McClay vs. Love, 25 Cal. 367.) The other questions presented were determined in Meagher vs. Thompson, 49 Cal. 189.

Judgment reversed and cause remanded with direction to the court below to render judgment in favor of plaintiff for the recovery of the premises described in the complaint.

By the Court.

[No. 5375.]

[Filed November 7, 1877.]

HIMMELMANN vs. BOOTH.

It was necessary in this case that the plaintiff or some person in his behalf should "publicly demand payment on the premises assessed." One of the grounds upon which the plaintiff was nonsuited was that the demand testified to by the witness Tobleman was insufficient, and upon looking into the record and considering the circumstances attending the supposed demand we are unable to say that the court below committed an error in holding the demand insufficient.

The findings in this case are to the effect: first, that the defendants were in possession; second, that they were not in possession of the premises sued for. No judgment could properly be entered upon such a contradiction in the findings.

Judgment and order denying a new trial reversed and cause remanded for a new trial. Remittitur forthwith.

[No. 5337.]

[Filed October 29, 1877.]

HAWKINS vs. MANSFIELD GOLD MINING COMPANY.

MINING SHARES.-Certificates of mining shares not binding upon the company when issued before the incorporation of the company.

By the Court.

The facts, as testified to by the plaintiff himself, did not make a case in his favor, and the defendant's motion for a non-suit should have been sustained. The certificate of Higgings, to the effect that the plaintiff is "entitled to one thousand shares in the Mansfield mine, to be issued as soon as practicable after the same is incorporated," was not the act of the corporation, nor binding upon it, for at that time the corporation was not in existence, and the subsequent refusal of the Secretary to issue stock thereon was not an act of conversion by the corporation.

The case is not distinguishable from that of Morrison vs. Gold Mountain Gold Mining Company, decided at the last term.

Judgment and order reversed and cause remanded.

There is no allegation found in the complaint to the effect that the judg ment mentioned in the undertaking sued on was set aside, or that the attachment therein named was released, and the demurrer should have been sustained for that reason. (Palmer vs. Melvin, 6 California, 652; County of Los Angeles vs. Babcock, 45 id. 252, and other cases cited in the appellant's points.)

Judgment as to defendant Paul Neumann reversed and cause remanded, with directions to sustain the demurrer to the complaint.

[No. 5208.]

[Filed October 30, 1877.]

CARDINELL vs. BENNETT ET AL.

CONVERSION.--An action can not be maintained by one for conversion of property to be acquired upon the performance of certain conditions -- promises by him to be p rformed; the title should be in the plaintiff, to entitle him to maintain an action for conversion.

By the Court.

Plaintiff had no complete property, either general or special, in the horse Chief Crowley, at the time of the alleged conversion, or when this action was commenced. It was not a sale on credit from Carpenter to Cardinell, but a contract whereby it was agreed that the latter should acquire the property on the performance of certain conditions promised by him to be performed. Judgment and order reversed and cause remanded.

Recent Decisions.

U. S. CIRCUIT COURT, EASTERN DISTRICT OF MISSOURI.

September Term, 1877.

Before Mr. Justice MILLER.

1. BANKING DEPOSITS For ClearinG-HOUSE PURPOSES NOT TRUST FUNDS.-Where a bank agreed to act as the agent of another bank for clearing house purposes, and, as such agent, agreed to pay all the checks of the latter which came through the clearinghouse, and received for that purpose, from time to time, the funds of the latter bank, which it passed to the credit of the latter bank, without keeping such funds separate from the owner: Held, that the relation of debtor and creditor -the ordinary one of the bank to its depositers-was created, and that the deposits could not be considered as trust funds, which, on failure of the former bank, would not pass to its assignee. 2. BANK DEPOSITS-BANKRUPTCY-PREFERENCES-Under such circumstances, the funds when deposited, became the property of the former bank, and, having paid, on the day of its failure, to the latter bank the deposits made to meet checks, such bank having knowledge of the insolvent condition of the former: Held, that such judgment was a preference, and could be recovered by the assignee.

Broadhead, with Donavan and Conroy for plaintiff, cited: Bank of Commerce vs. Russell, 2 Dillon, 216; In re Robert Hosie, 7 N. B. R. 601; In re January, 4 N. B. R. 100.

Wood & Whitney, with E. T. Farish for defendant, cited: Perry on Trusts, Par. 2, 18 to 24; Voight vs. Lewis, 14 N. B. R. 543; Ex parte Sayers, 5 Ves. Jr. 172: Grant on Banking, 4, 5; Morse on Banking, 26 Ch. 2. As to following trust funds into hands of an assignee: Cook vs. Tullis, 18 Wall. 342; Brochus vs. Morgan, 5 Cent. L. J. 54; Ex parte Hobbs, 14 N. B. R. 495; Hamilton, Assignee, vs. The National Loan Bank, 3 Dillon, 230.

Mr. Justice MILLER, orally :

This case was submitted upon an agreed statement of facts, from which it. appears that before the Central Savings Bank, of this city, went into bankruptcy, when Mr. Phelan became its assignee, there was an arrangement. between it and the Iron Mountain Bank by which the Central Savings acted as the agent of the Iron Mountain Bank for clearing-house purposes, the latter being incapable of entering that association for want of sufficient capital. By the agreed statement of facts made up between the parties and submitted to the court, it appeared that the Iron Mountain Bank undertook to keep on deposit with the Central Savings a sum sufficient to meet all its checks which that bank should be called upon to put through the clearing-house, and that in the main it did so. And it appears that the Central Savings came under an obligation to the Iron Mountain Bank by which it agreed to pay all the checks of the latter, whether it had money enough of the latter to meet the checks or not; it had to assume that obligation when it agreed to become the agent of the other bank for the discharge of the checks in that way. Through a considerable course of business, the Iron Mountain Bank had at times on