is not of such a nature that it can be imparted, to a Massachusetts executor or administrator officii, so as to give him the right to sue in, O,ur courts, and to transmit the right of action from one person to another in connection with the representative of the deceased. The only construction which the statute can receive is that it confers certain new and peculiar powers upon the personal representative in New York. A succession in the right of action, not existing by the com· man law, cannot be prescribed by the laws of one state to the tribunals of another." To the same effect is the decision in Woodlcard v. Michigan Southern, etc., R. Co. 10 Ohio St. 121Ths'lomplaint is dismissed.
TIERNAN fl. BOOTH.
(Oircuit Oourt, N. D. Illinoit.
,1. WRIT:oll"ERROR-SUFERBEDEAB.-Thefact that a citation was' not
JA> and signed by a .jndge within 60 day!!: after the entry of not necessarily prevent a writ of error from operating as a 8Upe1·sedeas.
Motion for Writ of Possession. George rt William Burry, for motion, cited Sage v. R. Co. 93 U. S. 417; Kitchen v.Randolph, ld. 86 ; City oj Wash. ington v. Denison, 6 Wall. 496; Stockton v. Bishop, 2 How. 74; Rubber Co. v. Goodyear) 6'Wall. 156; Silver v. Ladd, 6 Wall. 440; Palmer v. Donner, 7 Wall. 541; U. S. v. Hodge, 3 How. 534; Bacon v. Hart, '1 Black, 38; U. S. v. Curry, 6 How. 113; Hogan v. Ross, 11 How. 297; Feret v. Hill, 15 Common Bench, 207; Conkling's Treatise, 671. Needham rt Miller, for defendant, cited Sage v. R. Co. 96 U. S. 712; Carroll v. Dorsey, 20 How. 207; U. S. v. Yates, 6 How. 605; Alviso v. U. S. 5 Wall. 824; U. S. v. Gomez, 1 Wall. 701; Bangs v. R. Co. 23 How, 1; Davison v. Lttnier, 4 Wall. 447; Ba1'ton v. Forsyth, 5 Wall. 190; Villabocs v. U. S. 6 How. 89, 91.
· DRUMMOND, O.:T. In this case a. judgment was rendered by this court in favor of the plaintiff. in an .action bf ejectment, on the thirteenth day of December, 1879, and within the proper time a bond was filed by the defendant, with security approved by the court, in an amount sufficient to make it a supersedeas. A writ of error was seasonably sued out, and :I' copy was also left in the clerk's office for the opposite party, in conformity with the statute. In all respects, therefore, the necessary steps were taken by the defendant to make the writ of error a 8upel'sedeas, unless one is lacking, viz.: because the citation was not signed by the judge until the fourth day of September, A. D. 1880. The practice does not seem to be uniform in the various circuits courts of the United States as to the manner of making a writ of error a 8upersedeas by the action of the court. It seems to be conceded thl;1t it is not· necessary, provided everything has been done required by statute, for a court or the· judge to an order that the writ of error is a 8upersedeas. It becomes so per tie upon compliance with the statute. The practice in this circuit has \lsua,llybeen to treat a writ of error, upon the execution and approval of a sufficient bond and. of the citation, as &8upersedea8 without. any express order of the court or judge. It is generally understood, between parties by the court, whether the bond that is 05ere(1,) (being sufficient in amount and the security adequate,) ii( intended and does operate as a supersedeas. If t4at is .so understood by the counsel and the court, no application is made for an execution or a writ of possession, as the case may be; and therefore no order is generally in such cases. At the same time, the practice has been occasionally for counsel to ask that a special order shall be entered by the court or judge declaring the writ of error a supersedeas, and when so desired order has been made. The language of the statute (section 1000:) "Every justice or judge signing a citation on anywrit of -error shall · · · take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect." Undoubtedly the general rule is that the signing the citation and taking the security are simultaneous
acts. The statute seems to imply that they are, ana to impose aSa duty on the judge, when he signs the citation, that he shall then take good and sufficient security. In practice the citation is usually prepared by the counsel and presented to the judge for his signature. In fact, it may be stated, I think, that this is the universal practice. In consequence of this, and hecause no citation was presented to the judge for signature, none was signed in this case, and it was not until the fourth day of September, 1880, when it was ascer· tained that no citation had ever been actually signed or served, that the citation was presented to the judge for his signature, which was then affixed. The writ of error was returnable to the first day of the preRent October term, and the citation was issued and served on the plaintiff to appear on the first day of the October term of the supreme court this year, to answer the writ of error. It will be seen from this statement that if the plaintiff is entitled to a writ of possession in this case, it will be in consequence of the technicality of a citation not having been prepared and presented to the judge and signed within 60 days after the judgment was entered. I do not feel inclined to sustain a technicality of this kind under the facts of this case. Undoubtedly it is competent for the supreme court to grant a 8uper8edeas, even where none has been allowed by the circuit court. But here all that was necessary to make the 8urpersedeas effectual was the citation and signature of the judge within 60 days after the judgment was rendered. It seems to me, for all practical purposes, the plaintiff having been served with a citation before the October term of the supreme court, and notice thus being brought .home to him of the writ of error and of the term to which it was returnable, and a bond having been executed, which was treated by the court as a 8upersedeas bond, it is sufficient to entitle the defendant to take the judgment of the supreme court upon the merits of the case itself, before the plaintiff can call on this court for a writ of possession. At any rate, if it be a matter of doubt, I prefer to take this view of the case in order that the plaintiff may avail himself of any error, if
NORTON V. BILLINGS.
any has been committed by this court, and the opinion of the supreme court upon the question. If that court,upon proper application, shall be of opinion that under the facts in this case the plaintiff is entitled to a writ of possession, this court will follow that ruling without any order being made, and upon being informed that the supreme court has made such ruling.
(OWouit C(f/J/ft, No D. Illinoi,.
November 27, 1880.)
overthrown by proof that the full value of the property was paid in ignorance of the insolvency of the vendor. Walbrun v. Babbitt, 16 Wall. 677. 8. presumption can only be over· come by proof un the part of the vendee that he took the proper steps to find out the pecuniary condition of the vendor. Walbrun v. Babbitt, supra. 4.. 8AME--EvIDENCE.-lt is competent for the. vendee to show, however, that the insolvent vendor intended in good faith to USE! the means acquii:ed from the sale in the payment of his debts, pro rata, among his creditors.
J. W. Ela, for plaintiff.
Sidney Smith, for defendants. C. J. Nowlin & McElwain had been for several years engaged in business as jewelers in the city of Ohicago. prior to the spring of 1870, when they became embarrassed, and found it necessary. to demand an extension from their creditors. McElwain accordingly went toNewYork in M.a.,. of that year, where the firm was indebted to different mer· chants, to the amount of more than $20,000. While there he made a statement of the condition of the affairs of firm'