Page:Harvard Law Review Volume 9.djvu/461

RECENT CASES. 433 these views, but give priority to the judgment creditor, who first proceeds to enforce his judgment. In one case this is explicitly based on the ground that the " writ and noi the judgment created the lien." Bliss v. Clark, 39 111. 590; McDonald v. Crandall, 43 III. 231 ; Freeman on Judgments, § 355. Municipal Corporations — Counties — Failure to Repair Bridge. — Held, in the absence of a statute imposing such liability, a county is not liable for injuries resulting from defects in a bridge, though the county is under a duty to keep it in repair, a;id the non-repair is due to the negligence of the county officers. Board 0} Comrs of Jasper Co. v. Alhian, 42 N. E. Rep. 206 (Ind.). This decision overrules a long line of Indiana cases, beginning with House v. Mont- poin.ry Co., 60 Ind. 5S0 (1878), and extending to Parke Co. v. Wagner, 13S Ind. 609 (1891). The rule that a county is a subdivision of the State for governmental purposes, and is not liable for the negligence of its officers, unless expressly made so by statute, is recognized by an overwhelming majority of the decisions, both English and American. The rule seems to have originated in the case of Russell v. The County of Devon, 2 T. R. 667. The only jurisdictions now holding contra to the general rule are Iowa and Maryland. See Yordy v. Marshall Co., 80 Iowa, 405 ; Calvert Co. v. Gibson, 36 Md. 229. The opinion in the principal case contains a complete citation of the modern authorities. Partnership — Transfer of ParTxNEr's Interest after Insolvency — Rights of Firm Creditors. — A. of the firm of A. & B. transferred his interest in the firm assets to B. after the firm was known to be insolvent. B., according to the view of the majority of the court, agreed to hold the assets in trust for the firm credi- tors. B. conveyed to C, who took with full notice of all the facts. C. used the con- veyed property in his business under the name of C. & Co., holding B. out as his partner. In fact there was no partnership. Held, with a minority dissenting on both points, (i) that creditors of the ostensible firm of C. & Co., upon C.'s assignment in insolvency, were entitled to have the property used in C. & Co.'s business applied as firm assets to the payment of their claims; (2) that creditors of the original firm of A. & B. should come in against this property pari passu with the creditors of C. & Co. Thayer v. Humphrey, 64 N. W. Rep. 1007 (Wis.). Ordinarily, creditors of an ostensible partnership are entitled to priority of payment out of the property used in the business, upon the insolvency of the true owner. In re Roivland and Crankshaw, L. R. 6 Ch. Ap. 421 ; Ex pa?-te Hayman, 8 Ch. Div. 11. In the present case, however, the creditors of C. & Co. should be postponed to the credi- tors of A. & B. to the extent that the assets of A. & B. can be found in specie, or dis- tinctly traced. If B. agreed to hold in trust, of course C. took as trustee for the firm creditors of A. & B. If there was no agreement to hold in trust still, as the con- veyances of A. & B. were both made after the firm was known to be insolvent, both were void for fraud as against the firm creditors, who therefore have a prior lien on the original firm assets in the hands of C.'s assignees. Ex parte Mayon, 4 Ue G., J. & S. 664; In re Keviptner, L. R. 8 Eq. 286; Peyser . Myers, 135, N. Y. 599 {semble) ; Lind. on Part. (6th ed.), 347, 716. It is not suggested in the case that the firm creditors of A. & B. were guilty of laches. Persons — Wife's Separate Estate in Equity — When Created. — Money which a husband allows his wife to acquire by the sale of poultry, etc., to use as she pleases, and of which he loses sight till it has been invested in real estate by her for eighteen months, forms her separate estate. If she refuses to complete the purchase of the land, and pleads coverture, the vendor can sell the land to reimburse himself for the amount unpaid by her. Snodgrass v. Hyder, 32 S. W. Rep. 764 (Tenn.). At common law a wife had no separate estate. All her chattels and earnings vested in her husband outright. Equity gradually modified this harsh doctrine, and allowed a wife an estate in property acquired by her, treating the husband as a constructive trustee. 2 Kent, 134, 143. Under this rule she could recover property promised her by her husband from his heirs, provided the rights of creditors did not intervene. This was held in spite of the rule that husband and wife could not contract. Slansing v. Style, 3 P. Williams, 337. As there was no statute in Tennessee enlarging the power of a married woman to bind herself by contract except in regard to conveyance of her estate, the court was bound by the common law rule. But it thought there was suffi- cient evidence from which to imply a gift to the wife, and that consequently the money formed her separate estate in equity. The second point, viz., that the vendor could sell the estate to recoup himself for the unpaid purchase money, seems equally clear. The court's ruling that the vendor had no right to a personal judgment against her is without exception in view of the weakness of the Tennessee statute in regard to mar- ried women. And though there is a division of opinion on the question whether a wife's separate estate can be bound by implication on her contract, Murray v. Barlccy