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Bankruptcy. Fraudulent Conveyances. Insurance on Property Fraudulently Conveyed

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  • Bankruptcy. Fraudulent Conveyances. Insurance on Property Fraudulently ConveyedSource: Harvard Law Review, Vol. 28, No. 5 (Mar., 1915), p. 514Published by: The Harvard Law Review AssociationStable URL: .Accessed: 23/05/2014 17:20

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    Held, that the plaintiff cannot recover. Jones v. Zoological Society of Phila- delphia, 71 Leg. Intell. 757 (Com. Pleas, Phila. Co., Pa.).

    The court apparently considered the wild Asiatic ass not inherently danger- ous. It would probably be held otherwise in most jurisdictions, for the animal closely resembles the zebra, which is treated as dangerous. Marlor v. Ball, 16 T. L. R. 239. See 2 NEW INTERNAT. ENCYC. III. Scienter or negligence would then be unnecessary. Some of the authorities suggest, however, that in any case the defendant's only duty is to keep the animal "secure." See Marlor v. Ball, supra, 240. But the generally accepted view is that the owner is bound at peril to keep it from doing injury. See Vredenburg v. Behan, 33 La. Ann. 627; SALMOND, TORTS, 3 ed., ? 126. This agrees with the common expressions that the "gist of the action" or the "negligence" consists in keeping the animal with notice, actual or presumed, of his vice. See Lynch v. McNally, 73 N. Y. 347; Marble v. Ross, 124 Mass. 44; Smith v. Pelah, 2 Str. 1264; Hammond v. Melton, 42 11. App. i86. It is further illustrated by the rule that a good decla- ration need allege only keeping, vice, injury, and, in a proper case, scienter. May v. Burdett, 9 Q. B. IoI; Brooks v. Taylor, 65 Mich. 208, 31 N. W. 837. And the fact that recovery has been had repeatedly where the animal was chained or caged seems conclusive against the contention that the defendant in the principal case had performed its full duty. BesozJi v. Harris, I F. & F. 92; Laverone v. Mangianti, 41 Cal. 138; Wyatt v. Rosherville Gardens Co., 2 T. L. R. 282; Sarch v. Blackburn, 4 C. & P. 297. Very often, in such cases, the plaintiff will lose because of his own fault in causing the injury. Marlor v. Ball, supra. But the plaintiff here was too young to be responsible for bring- ing the injury on herself. Meibus v. Dodge, 38 Wis. 300; Plumley v. Birge, I24 Mass. 57; Linck v. Schefel, 32 Ill. App. 17. And the negligence of the grand- father should not prevent recovery by the child even on the theory of imputed negligence, unless the grandfather may be said to be the agent of the parent, the real beneficiary. See 23 HARV. L. REV. 299.

    BANKRUPTCY -FRAUDULENT CONVEYANCES -INSURANCE ON PROPERTY FRAUDULENTLY CONVEYED. - The bankrupt conveyed property without con- sideration to the defendant, for the purpose of defrauding creditors. The defendant effected insurance on the property, and on the destruction of the property after bankruptcy proceedings had begun, collected the proceeds, which the trustee now claims. Held, that the trustee cannot recover. Tren- holm v. Klinker, 66 So. 738 (Miss.).

    Insurance is not a substitute for the property insured, but the product of a contract of indemnity. Accordingly when property fraudulently conveyed is destroyed, the insurance cannot be recovered by the trustee in bankruptcy as an altered form of the property. Bernheim v. Beers, 56 Miss. I49. So if the grantee effects the insurance, the trustee is powerless. If, however, the bank- rupt has paid the premiums, the insurance may be a fraudulent conveyance in itself, and the proceeds will then be recoverable by the trustee. Lerow v. Wilmarth, 9 Allen (Mass.) 382. See 26 HARV. L. REV. 362. In the principal case there is a hint of a secret trust for the grantor. In such a case, if the grantee insured for his undisclosed cestui, or if he purported to, and the cestui ratified, the cestui, or his trustee in bankruptcy, should of course be able to recover on principles of agency. Lerow v. Wilmarth, supra.

    BANKRUPTCY - FRAUDULENT CONVEYANCES - VOLUNTARY SETTLEMENTS UNDER ENGLISH BANKRUPTCY STATUTE.- A bankrupt, within two years of bankruptcy, purchased a clock, and caused it to be affixed to a hotel of which his nephew was about to become lessee. In consideration of this being consid- ered part of the freehold, the landlord agreed to reduce the agreed yearly rental for the nephew. Held, that the trustee cannot recover from the nephew. In re Branson, [I9I4] 3 K. B. IO86 (C. A.).

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    Article Contentsp. 514

    Issue Table of ContentsHarvard Law Review, Vol. 28, No. 5 (Mar., 1915), pp. 445-538Interests of Personality. [Concluded] [pp. 445-456]"Ex Parte" Divorce [pp. 457-472]The Constitutional Right to Keep and Bear Arms [pp. 473-477]Ways and Waters in Massachusetts [pp. 478-495]NotesFreedom of Contract under the Constitution [pp. 496-499]The Right of Publicity [pp. 499-501]Valuation of Public Service Franchises [pp. 501-505]Unregistered Automobiles and Tort Liability [pp. 505-507]Is Cestui que Trust's Right in Rem or in Personam? [pp. 507-511]Recovery for Indirect Injury Caused by Action on a Third Person [pp. 511-513]

    Recent CasesAnimals. Damage to Persons by Animals. Injury to Young Child in Consequence of Negligence of Custodian [pp. 513-514]Bankruptcy. Fraudulent Conveyances. Insurance on Property Fraudulently Conveyed [p. 514]Bankruptcy. Fraudulent Conveyances. Voluntary Settlements under English Bankruptcy Statute [pp. 514-515]Bankruptcy. Partnership Cases. Effect of Discharge of Firm on Liability of Non-Bankrupt Partners [pp. 515-516]Bankruptcy. State Bankruptcy and Insolvency Laws. Effect of General Assignment under State Laws [p. 516]Carriers. Discrimination and Overcharge. Mistake: Liability for Quoting Published Rate No Longer Applicable Because of Change in Name of Station [pp. 516-517]Carriers. Duty to Transport and Deliver. Right of Consignor to Sue [p. 517]Carriers. Limitation of Liability. Effect of Notice Filed with Public Service Commission [pp. 517-518]Conflict of Laws. Obligations Ex Delicto: Creation and Enforcement. Action by Personal Representative for Tort Committed under Foreign Statute Which Vested the Right in Beneficiaries [pp. 518-519]Constitutional Law. Personal Rights. Liberty to Contract: Statutes Restricting Employment of Aliens [p. 519]Corporations. Charters. Reformation of Charter for Mistake of Incorporators [pp. 519-520]Criminal Law. Defenses. Participation to Detect Crime [p. 520]Easements. Nature and Classes of Easements. Right to an Unobstructed View of the Premises from the Highway [p. 520]Evidence. Documents. Authentication of Letters Not in Sender's Handwriting [pp. 520-521]Infants. Torts. Liability for Tort Arising in Connection with Contract [p. 521]Insurance. Re-Insurance. Liability of Re-Insurer to Insured Who Accepts Assignment of Re-Insurance Contract in Satisfaction of His Claim [pp. 521-522]Insurance. Re-Insurance. Measure of Liability of Re-Insurer When Insurer Insolvent [p. 522]Landlord and Tenant. Rent. Liability for Rent after Breach of Covenant by the Landlord [pp. 522-523]Mandamus. Acts Subject to Mandamus. Compelling City Officials to Submit Alleged Unconstitutional Ordinance to Popular Vote [p. 523]Master and Servant. Workman's Compensation Acts. Effect of Illegality of Contract of Employment [pp. 523-524]Master and Servant. Workmen's Compensation Acts. Recovery under Statute of Place of Injury While Employed under Contract Made Elsewhere [p. 524]Mortgages. Foreclosure. Defect of Title as Defense to Purchase-Money Mortgage [pp. 524-525]Negligent Misrepresentation. Particular Cases. Attorney and Client: Negligent Statement as to Security [pp. 525-526]New Trial. Grounds for Granting New Trial. Limitation to Issue of Plaintiff's Capacity [p. 526]Public Service Companies. Regulation of Public Service Companies. Valuation for Rate Purposes [p. 526]Railroads. Regulation of Rates. Statutory Penalty for Violation of State Commission's Order [p. 527]Self-Defense. Duty to Retreat. Attack by Another Inhabitant in One's Own Home [pp. 527-528]Suretyship. Surety's Defenses: Miscellaneous. Effect of Assignment of Building Contract by Contractor on Rights of Materialmen [p. 528]Taxation. General Limitations on the Taxing Power. Federal Agency: State Taxation of Indian Coal Mines [pp. 528-529]Taxation. Where Property May Be Taxed. Succession Tax on Securities Temporarily Removed from the State [p. 529]Torts. Interference with Business or Occupation. Justification: Strike to Compel Discharge of Non-Union Men [pp. 529-530]Trusts. Cestui's Interest in the Res. Nature of Cestui's Interest [p. 530]Trusts. Creation and Validity. Direction to Trustee to Employ a Particular Person as Attorney in Administering the Trust [pp. 530-531]Witnesses. Impeachment. Party's Own Witness: By Prior Contradictory Statement