IN BE- DIXON.
109
of the first act." This language not' only does not authorize, but it forbids the inference that as against I'm intervening grantee of some of the lands included within the limits of the larger grant, the title would pass under the two grants as of the date of the former. It is only as against the United States that this construction pre· vails. As against other grantees claiming adversely to the ,United States as well as to complainant, the later act must be considered as a subsequent grant and as taking effect only from its date. Decree for respondent.
In re
DIXQN,
Bankrupt.
(Circuit Court, W. D.'MiSsouri, E. D. January,
NovATION-SUFFlCIENT. CONSIDERATiO:li. An agreement on the part of a debtor ,to plake five new notes, in accordance with the request of the creditor, for. tlie purpose of enabling the creditor to bring suits on the new notes in the justice's court, which he CQuld· not do on the original claim, is an agreement upon sufficillnt consideration. Such an for it five new'conagreement cancels the' original cOntract, and. tracts.
Petition for Review in Bankruptcy. Belch IX Silver, for " J. R. Edwards, for bankrUpt.. .' . . MCCRARY, C. J. Uponpetitiofr of the. bankrupt the district.apurt ordered that certain land be set apart to him as a. home,stead, and such, exempt. This order was made against the objection of the. First National Bank of Jefferson City, one of the credito.rs of the bankrupt estate. The bank files.its· petition. under. seotion 4986, Rev. St., praying a review and reversal of said order. of the district court. The groundfipon the decision Of the court below is attacked is that the'debt held by the bankagaiust the bankrupt was contracted prior the acquisition by the bankrupt of the premises now claimed py him as "exempt under the ,homestead law of Missouri. 1 Mo. p. 4'52, § 2695. " . . The proof shows that at the original indebtedness was COD,traeted land in question was held in common by the, bankrupt and his father, Levi Dixon. The originatdeb.t ·wascontrMted January 23,'1874. It does not appear frOm the evidence whether the ariginaldebt was evidenced by more than one note or not; buk it
110 does appear that in January, 187.8, by agreement of .parties, the said indebtedness was divided into fiye parts, and five new notes were given b;{the bankrupt for sums rangingfrom $100 to $150. This was done, as the record shows, for the purpose of bringing the notes within the jurisdiction of a justice of the peace, prior to the tirp.e of the filing .of Dixon's petition in bankruptcy. Suit was brought on them and judgments Qbtained before a justice of the peace,but no part of the judgments .has been paid. The new notes were given long after the acquisition by the bankrupt of. the full title to his homestead. Was the taking of the new notes for different amounts, for the purpose of enabling the bank to sue upon them before a justice of the' peace, an accord and satisfa,ction of the original debt and the making of a new contract withlti the meaning of the homestead act? If the giving of the new Xlotes was another agreement between the parties, differing in any material respect from the original, then the old contract was extinguished and merged in the new. Whether the new agreement shall have the effect of satisfying the original claim depends upon the terms, and especially upon the question whether the new promise is founded upon any new consideration. The question is whether there was an agreement, upon sufficient consideration, to cancel the old and enter into a new contract. It is not necessary that there' should .be an express agreement on the part of the creditor to proceed in case of default upon the new and not upon the old indebtedness. It is suffl.cient if such appears from the facts' and circumstances to bs.ve' been the intent of the parties. In the present ease such intent is sufficiently shown by the cancellation of the original note; by the execution of. new notes in small amounts; by the agreement to make new and different notes for different sums so as to enable the bank to,suein a justice's court, which it could not do on the original claim ;by the bringing of suits on the new notes and by proving them, and failing to make any proof of the original debt against the bankrupt's estate. Babcock v. Hawkins, 23 Vt. 561. Was there a sufficient consideration for the new agreement? It is not claimed that any part the original debt was actually paid, but it appears that the bank desired to divide the debt into a number of parts, and to tab· new notes for each part, so as to bring the claim within the jurisdiction of a justice of the peace. The agreement on the part of Dixon to .make five new notes in accordance with the request of the bank, a.nd for the purpose
all
· 'COi'V.t>E;RKINS.<
111
was an agreement upon sufficient consideration, :ahd it/ must be held tO'have been an agreement to cancel the original contract and substitute for it the five new conftracts, for otherwise the purpose of the contracting parties to bring the claims within the jurisdiction ofa justice of the peace would have been defeated. Upon this ground district court, must be atlirmedwithout considering the decree of the other questil>ns argued by counsel. So ordered.
Coy Wiroult CoSTB-SoLIClTOR'S FEES.
t1.
(Jourt, D. MfU8achuaett8. August 3, 1882.)
Where in an equity case, before any decree is relldered, an o.-der dismlBSing the bill with costs is obtained, without notice to the defendant or hearing or consideration of the case by the court, the solicitor's fee of $20 will not be allowed. ' .
Appeal from the clerk's taxation of ,costs in a suit inequity allowing a docket fee of $20 to the eJefendant's. solicitor under these cir· cumstances: At the term at which the case was entered, the:parties by their solicitors, .and. thedef!3ndant filed a demurrer to the bill. After the case had been continued for several terms, the plaintiff caused this entry to 'be made upon the docket: "Bill dismissed by direction of complaina:t}t." The clerk stated his reasons for, the allowance, as follows: If I based my decision upon the practice of the, olerk's office, under which an attorney fee of $20 is taxed forthe prevailing party in every equity case disposed of by order of court, otherwIse thljoll upon agreement of parties. Previously to a decision by Justice Clifford, that wlJ,en an equity case is disposed of by agreement of patties' the prevailing party is' not entitled to an attorney fee, such fee was taxed in every equity case disposed of ; but sinoe that decision an attorney fee has.not been taxed in Bucb· oases as come s'trictly within Judge Clifford's decision, but has been tmced in every other equity case disposed of."
The matter was l'Iubmittea to the oourt upon ,the report of the clerk, and the written objections'filed by the pla.intiff tothe allowance (It this fee, without further argument. Oau8ten Browne, for plaintiff. R. M. Morse, Jr., and R. Stone; Jr., for defendant.