Gambar halaman


- TO


dially agree that “any other matter" does not mear under the circumstances the plaintiff is to carry the the connection formed in the business. The custom of agreement into execution if the assignees have taken the business is a matter connected with the carrying from him actively the benefit of that contract is very of it on. It is the formation of that connection which different, but whatever opinion may be held on this has made the value of the thing which they sold, and transaction in that view of it, I do not see the fraud they really had nothing else to sell in the shape of upon which, as a judge in equity, I can lay my hand, goodwill. Then the other case cited was the case of and I dare not from this place so deal with it.” So Cruttuell v. Lye, which was a very peculiar case; it that he came to the conclusion that what the bankrupt was not like the sale by a man himself, because it was was doing was not to interfere with that which was the sale of a thing by the assignee of a bankrupt. I sold, and which was simply the chance of customers agree that for some purposes there is no distinction, resorting to the old place, and that he had not combut for other purposes there is a distinction. The mitted a fraud on any contract entered into by him or assignees can only sell property, but a man can sell not the assignees, and therefore he decided that he could only the property, but if I may so express myself, a not interfere. How that case bears out the proposinegative right as against himself. He can stipulate tion that a man may the next day set up in the same that he will not carry on the business, but the assignee business, that is, he may solicit the same customers of a bankrupt cannot do that. They were called and do the same trade, buy at the same place and sell assignees then; they are now called trustees. They at the same place, and in all respects carry on the idencan only sell the property. The selling a trade or busi- tical business which he had sold, I myself do not ness by the assignees and the selling of a trade or busi- understand. It is only one illustration of many which ness by the man himself are not quite the same things. have come before me, of what was said by an eminent This distinction does not apply, however, to the pres- lord chancellor, that counsel sometimes have sought ent case, because the decision in the present case will for an authority for lack of argument. Indeed, if be independent of the peculiarities existing in Crutt- Cruttwell v. Lye is to be rightly considered, it appears well v. Lye. Lord Eldon says (17 Ves. 341a): “The to me to show that if Lord Eldon had thought that question is whether upon a fair understanding or rep- what the bankrupt was doing was a fraud on the conresentation agreeable to the fact this person is carrying tract, he certainly would have granted the injunction. on the plaintiff's trade;" that is the substance. Is he That, as I have said, is my opinion here, and I have no carrying on the business which he has sold? Now hesitation in granting the injunction asked for. there were some curious points raised in that case. The bankrupt did not carry on the carrying trade

NEW YORK COURT OF APPEALS ABSTRACT. (being the trade in that case) by the same road. He used the same termini, but he went by a different road. It was the case of a waggon carrier, and the question


OF CLAIM AGAINST ESTATE - SPECIAL PROCEEDING. was about the goodwill which had been sold with the trade by auction in lots, the bankrupt having carried

A claim against the estate of a deceased person was on the trade in two different places; and the point was

referred under the statute. 2 R. S. 89, 90. The referee whether it meant the trade itself or only the goodwill reported in favor of the plaintiff and judgment was attached to the property sold. Now, as I have often

entered upon his report. The General Term, upon said, I have nothing to do with facts in considering the appeal, reversed this judgment and ordered a new value of an authority. I have only to deal with the

trial, which was had before another referee, appointed facts as decided by the court to be the facts on which

at Special Term. This referee reported in favor of the judgment was founded. Whatever view may be

plaintiff, and upon appeal from the judgment on his taken of the wording of those particulars which are to

report, the General Term reversed the judgment and be found in the case of Cruttwell v. Lye, Lord Eldon

ordered a new trial. From this decision plaintiff aphas told us, at page 346, what he considered they pealed to the Court of Appeals, giving the usual stipumeant; “The goodwill which has been the subject of

lation. Held, that the appeal could not be allowed. sale is nothing more than the probability that the old

The proceeding in respect to claims against deceased customers will resort to the old place.” He did not

persons, under the statute, is not an action but a cousider that there was any conneetion except the special proceeding. An action is commenced by the chance of customers who wanted to go by wagon going service of a summons in some one of the modes preto the old wagon yard. That was the sort of business

scribed by law, and it is plain that no proceeding can there. He said that that was all that was to be con

be an action, unless it be such that it can be comsidered as being sold or understood to be sold or in

menced by the service of summons on the opposite tended to be sold. Of course in such a business as that

party and pleadings. The proceeding named cannot there was really nothing more. Lord Eldon continues:

be commenced by summons, but only by the consent "Fraud would form a different consideration, but if

of parties and approval of the surrogate, and can be that effect is prevented by no other means than those

tried in no other way than before a referee; there are which belong to the fair course of improving a trade in

no pleadings and the representatives of the estate can which it was lawful to engage, I should by interposing prove any defense they have without pleading it in carry the effect of injunction to a much greater length any form. It is not made an action because it results than any decision has authorized or imagination ever

in a judgment. See Robert v. Ditmas, 7 Wend. 522; suggested.” Then he says: “What further was done?

Boyd v. Bigelow, 14 How. Pr. 511; Godding v. Porter, The bankrupt advertises that he is reinstated in the

17 Abb. Pr. 374; Coe v. Coe, 37 Barb. 232; Somerville carrying business, and though that expression may

v. Crook, 9 Hun, 664. Under sections 190, 191 of the have a tendency to misconception, yet he is in a fair Code, where authority must be found for appeals to sense reinstated, if being at liberty, he has availed

the Court of Appeals, no appeal to this court in special himself of that situation to set up again that carrying proceedings is authorized, except from final orders in business. It amounts to no more than that he asserts

such proceedings. An order granting a new trial is a right to set up this trade, and has set it up as the like,

not a final order, and if made in a special proceeding it but not the same trade with that sold, taking only

is not appealable. Appeal dismissed. Roe, appellant, those means which he had a right to take to improve

v. Boyle et al. Opinion by Earl, J. All concur; Miller, it , and there is no fact amounting to fraud upon the J., in result. Contract made with the plaintiff.” That is the dis- [Decided June 1, 1880.] tinction. This, in my opinion, is a fraud on the con- INSURANCE

· CONDITIONS IN tract. He goes on to say: "The question whether WAIVER. — (1) In the application for a fire policy



wherein it was provided that the representations made should be considered warranties avoiding the policy if untrue, in answer to a question as to the amount of incumbrances upon the property to be iusured, applicant stated that there was a mortgage for $2,500. There was, in addition to said sum, accrued interest for a short period, not yet due. Held, not a misrepresentation. (2) At the time of the making of tho policy there was a small judgment, which was a lien on the property insured. This was not mentioned in the application. It was paid shortly after the policy was issued. Thereafter the policy was renewed upon the payment of a further premium. The certificate of renewal contained this condition: “Provided, always, that the original policy is in full force." Held, that even if the existence of the judgment would have invalidated the policy, the insurance effected by the renewal was not invalidated. (3) The policy was issued to M., loss payable to plaintiff as mortgagee. It contained a condition avoiding it “if the assured now has or shall hereafter make any other insurance upon the property hereby insured "without consent, etc. Plaintiff, without the knowledge of M., procured other insurance. Held, that the policy was not avoided thereby. Plaintiff, even though there was a clause in the mortgage from M. to him authorizing him to procure insurance in case of the default of M. in doing so, would not, in procuring insurance, act as the agent of M. (1) The policy provided that the insured should, "if required, submit to an examination and crossexamination under oath, by any person appointed by the company.” Held, that the insured was bound to answer only such questions as had a material bearing upon the insurance and the loss. (5) Where proofs of loss are received by the company insuring without objection, they cannot afterward object that they are defective. (6) The policy contained a provision rendering it void in case foreclosure proceedings should be commenced against the insured property. Held, that foreclosure proceedings by plaintiff would avoid the policy and the fact that by the policy the loss was made payable to plaintiff as mortgagee did not constitute a consent by the insurance company, that he might enforco payment of his mortgage by foreclosure without invalidating the policy. Pratt v. N. Y. Cent. Ins. Co., 55 N. Y. 505. Plaintiff commenced proceedings of foreclosure during the pendency of which the insured property was destroyed by fire. Thereafter, the company, knowing of the foreclosure, under a provision in the policy allowing them to do so, subjected the insured to a very rigorous examination. Held, that by this action the company recognized the continuing validity of the policy and could not thereafter assert its invalidity by reason of the foreclosure proceedings. If an insurance company, in any negotiations or transactions with the insured, after knowledge of the forfeiture of his policy, recognize the continued validity of the policy, or do acts based thereon, or require the insured, by virtue thereof, to do some act or incur some trouble or expense, the forfeiture is, as matter of law, waived, and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or on an estoppel. Allen v. Vermont Fire Ins. Co., 12 Vt. 366; Webster v. Phænix Ins. Co., 36 Wis. 67 ; Gans v. St. Paul Ins. Co., 43 id. 109; Insurance Co. v. Norton, 96 U. S. 234; Goodwin v. Mass. Mut. Life Ins. Co., 73 N. Y. 480, 493; Prentice v. Knickerbocker Life Ins, Co., 7 id. 483. Forfeitures are not favored in law and the doctrine of waiver is not peculiar to insurance policies. Taylor on Land. and Ten., $s 287, 497 ; 1 Smith's Lead. Cas. 20a; Lloyd v. Crispe, 5 Taunt. 249; Doe v. Miller, 2 C. & P. 348. Judgment affirmed. Titus v. Glen's Falls Ins. Co., appellant. Opinion by Earl, J. [Decided June 15, 1880.]

NEGOTIABLE INSTRUMENT — HOLDER FOR VALUE – CREDITOR SURRENDERING NOTE OF DEBTOR IS - BUT NOT IF SURRENDERING DISHONORED CHECK-CONFLICT OF LAW.- (1) The firm of B., P. & Co. gave to F., in settlement of an account, a check upon a bank where such firm had no funds. The check was presented and payment refused. The firm never had funds at tho bank to pay the check. Subsequently the firm, in settlement of the claim against them, gave F. a noto which had been wrongfully diverted from the purpose for which it was put in the hands of the payee, and F., upon receiving it, surrendered the check. Held, that F. was not a holder for value so as to deprive the maker of the note from setting up against him the equities in respect to the wrongful diversion of such note. It is the settled law of this State that prior equities of antecedent parties to negotiable paper transferred in fraud of their rights will prevail against an indorsee who received it merely in nominal pay. ment of a precedent debt, there being no evidence of an intention to receive the paper in absolute discharge and satisfaction beyond what may be inferred from the ordinary transaction of accepting or receipting it on account. The law regards the payment under such circumstances as conditional only, and the right of the creditor to proceed upon the original indebtedness after the maturity of the paper is unimpaired. Rosa v. Brotherson, 10 Wend. 85; Payne v. Cutler, 13 id. 605; Stalker v. McDonald, 6 Hill, 93; Lawrence v. Clark, 36 N. Y. 128; Weaver v. Barden, 49 id. 286; Moore v. Ryder, 65 id. 438; Potts v. Maer, 74 id. 594. Since the case of Coddington v. Bay, 20 Johns. 637, it has been the established rule of law in this State that to constitute an indorsee of negotiable paper a holder for value, so as to exclude the equities of antecedent parties, it is not sufficient that the transfer should be valid as between the indorser and indorsee; but in addition the latter must have relinquished some right, incurred some responsibility, or parted with value upon the credit of the paper at the time of the trans

In accordance with this principle, and upon grounds which are obvious and satisfactory, it has been frequently held that when a creditor takes from his debtor the note of a third person before maturity in good faith in payment of or as collateral security for the debt, and in consideration thereof gives up collateral securities held therefor, he thereby to the extent of the collaterals surrendered becomes a holder for value of the paper and takes free from the defenses of antecedent parties. Bank of Salina v. Babcock, 21 Wend. 499; Essex County Bank v. Russell, 29 N. Y. 673; Park Bank v. Watson, 42 id. 490; Chrysler v. Renois, 43 id. 209. And it must be regarded as the settled doctrine in this State that the surrender by a creditor of the past due note of a debtor upon receiving from him in good faith before maturity the note of a third person in place of the note surrendered, constitutes the creditor a holder for value of the note thus taken, and protects him against the defenses and equities of the antecedent parties, and that it is immaterial whether the note surrendered was given to the creditor for goods sold or money loaned, or under any circumstances which would leave the original debt represented by the note in existence enforceable against the creditor, or whether, by surrendering the note, the creditor parted with his entire right of action. Youngs v. Lee, 12 N. Y. 551; Day v. Saunders, 1 Abb. Ct. Ap. Dec. 495; Brown v. Leavitt, 31 N. Y. 113; Pratt v. Coman, 37 id. 440; Paddon v. Taylor, 44 id. 371; Clothier v. Adriance, 51 id. 322; Mech. & Trad. Bank v. Crow, 60 id. 85. See, also, Bank of St. Albans v. Gilliland, 23 Wend. 311; Bank of Sandusky v. Scoville, 24 id. 115. The rule established in these cases rests upon reasons rather technical than substantial, so that while the court will not disturb, they will not


extend it so as to include a check of the debtor which land originating in permission will not prevent it beis not intended to represent the debt or taken as secur- coming a right by prescription, if continued long ity for the debt, but was merely in this case a false enough, if the permission was of a “perpetual or untoken taken in place of money. (2) The fact that the

limited character." See, also, Ashley v. Ashley, 4 note was transferred in Massachusetts would not alter Gray, 197; Ripley v. Bates, 110 Mass. 161; Washb. on the rule though the law may be different there, it not Eas., $ 4. Jewett v. Hussey. Opinion by Peters, J. being show at trial that it is different. The court FIXTURES ERECTED BY ONE IN POSSESSION UNDER cannot take judicial notice that the law of another

CONTRACT OF PURCHASE-REAL ESTATE.-Where a perState differs from our own. McBride v. Farmers'

son entered into possession of a tract of land without Bank, 26 N. Y. 450; Leavenworth v. Brockway, 2 Hill, 201. Order reversed. Phoenix Insurance Co. v. Church,

the payment of rent therefor, and to use and occupy it

as his own in accordance with the terms of a contract appellant. Opinion by Andrews, J.

for its purchase, and erected large and substantial [Decided June 1, 1880.]

buildings thereon with engines and machinery for the USURY - MUST BE PROVED.-- B. and 0, were law- manufacture of an extract of bark for tanning puryers occupying the same office. Defendant negotiated poses, and then failed to perform the conditions of the a loan on mortgage to him from B., O. acting in the contract on his part and thereby acquire the title, transaction as the attorney for B. Defendant paid (. the erections, engines and machinery are a part of the a bonus for the loan, no part of which was shown to realty and cannot be sold as personal property as have gone to B., and B. denied that he received any against the owner of the land. Fixtures attached to part, and O. and another witness testified that B. knew premises by one in possession under a contract of purnothing of the payment of the bonus which 0. stated chase, where he fails to perform on his part and thereby that he retained it entirely for his own benefit. Held, to acquire a title, become a part of the realty, like fixnot to establish the taking of usury on the part of B. tures annexed by a vendor or mortgagor, and may not Usury must be established like any other defense by be removed. by him. See McRea v. Bank, 66 N. Y. proof of a satisfactory character, and a party cannot 490; Symonds v. Harris, 51 Me. 20; Strickland v. be made liable for the act of an agent intrusted with Parker, 54 id. 266; Elwell on Fixt. 22, 273; Cooley on money to invest, who exacted a bonus for himself as a Torts, 429; 1 Washb. on Real Prop. 6. The rule holds condition of making the loan, without the knowledge in Massachusetts. Eastman v. Foster, 8 Metc. 19, 26; or assent of his principal. Guardian Mut. Ins. Co. v. McLaughlin v. Nash, 14 Allen, 138; Oakman v. Ins. Co., Kashaw, 66 N. Y. 514; Condit v. Baldwin, 21 id. 219. 98 Mass. 57; Poor v. Oakman, 104 id. 309, 318; Madigan Judgment affirmed. Van Wyck et al. v. Walters et v. McCarthy, 108 id. 376. In Richtmyer v. Morss, 3 al., appellants. Opinion by Miller, J.

Keyes, 350, it was held, that except in cases where the [Decided June 8, 1880.]

relation of landlord and tenant exists one claiming the

building as personal property must prove that it was MAINE SUPREME JUDICIAL COURT AB

erected upon an agreement between the builder and

the owner of the fee of the land that it was to be conSTRACT.*

sidered strictly a personal chattel; which is in effect JANUARY, 1880.

the Massachusetts rule. See, also, Smith v. Benson, 1

Hill, 176. The same point was expressly decided in EASEMENT - IIOW ACQUIRED - USE HAVING ORIGIN Ogden v. Stock, 34 III. 526, and the court says, “if the IN PAROL. — An easement may be acquired by a use of party making the improvement, as between himself land, the use being continued long enough, having its and the owner of the soil, has no right to erect the origin and continuance in a parol gift or grant. Any same as property separate and distinct from the freeoccupation or enjoyment of the land of another under hold, an intention so to do, no matter how clearly a claim of ownership is in a legal sense an usurpation manifested, is of no avail." Perkins v. Swank, 43 of the right of the true owner, constituting an adverse Miss. 319, and Leland v. Gassett, 17 Vt. 403, are to the possession. The principle is concisely and clearly same effect, and Christian v. Dripps, 28 Penn. St. 271, stated and illustrated in Sumner v. Stevens, 6 Metc. indicates that the same would be held in that State. 337, where it was held, that if a son enters upon land See, also, Yates v. Mullen, 24 Ind. 278; Rines v. Bachunder a parol gift thereof from his father, who owucd elder, 62 Me. 95; Osgood v. Howard, 6 id. 453; Fuller the land, and has the sole and exclusive possession for v. Faber, 39 id, 519; The cases Russell v. Richards, 10 twenty years, he acquires title thereby. Shaw, C. J., id. 4:29; S. C., 11 id. 371; Pullen v. Bell, 40 id. 314, dissays: “Had the tenaut simply shown an adverse and tinguished. Hinkley & Egery Iron Co. v. Black. Opinexclusive possession for twenty years, he would have ion by Symonds, J shown that the owner had no right of entry, and that would hare been a good defense to this action. Is it

VIRGINIA SUPREME COURT OF APPEALS less so that the tenant entered under color of title? A

ABSTRACT. grant, sale, or gift of land by parol is void by the statute. But when accompanied by an actual entry and

FEBRUARY, 1880.* possession, it manifests the intent of the donor to enter and take as owner, and not as tenant; and it equally FIXTURES WHEN MACHINERY IN FACTORY FIXproves an admission on the part of the donor, that the TURE AS BETWEEN VENDOR AND VENDEE. - Where the possession is so taken. Such a possession is adverse. machinery in a factory is permanent in its character, The doctrine that a parol demise and exclusive occu- and essential to the purposes for which the building is pation under it by the grantee may amount to an occupied, it must be regarded as realty, and passes with adverse possession that would transfer the title to land, the building; and whatever is essential to the purposes was approved and applied in the case of Webster v. for which the building is used will be considered as Holland, 58 Me. 168. So a person may, by gift or sale, a fixture, although the connection between them may dispose of an easement by parol, and the donee or be such that it may be severed without physical or vedee obtain a prescription thereby after the lapse of lasting injury to either. See Green v. Phillips, 6 Gratt. sufficient time. It must appear that the privilege was 752. B., to secure a debt of $3,000 for money lent to not used under a letting, or license, or in any way in him by S., conveyed to C., in trust, a lot of land in tbe subordination to the title of the legal owner. In Ar- town of F., described as containing one acre of land buckle v. Ward, 29 Vt. 43, it was held that the use of on which B. has erected a planing mill and spoke fac*To appear in 70 Maine Reports.

* To appear in 32 Grattan's Reports.

tory; and by the same deed he conveyed and assigned that he had purchased it as genuine, and had no knowl. to C. a policy of insurance he had taken out on the edge or cause to suspect that it was not so. In Comsaid planing mill, spoke factory and machinery, and monwealth v. Mash, 7 Metc. 472, wbich was the case of covenanted to keep the policy in full force until the a woman marrying after her husband had been absent debt was paid. The lot and building independent of for several years, in the honest belief that he was dead; the machinery was not worth more than $1,000. Held, such defense was disallowed. The question appertains that the machinery in the building passed under the to the department of statutory construction, and to deed. Shelton v. Ficklin. Opinion by Christian, J.; introduce into the act the requisite of a guilty mind, Burks and Staples, JJ., dissented.

it must appear that such was the intent of the law. LIMITATIONS - STATUTE OF -- ACKNOWLEDGMENT OF

maker. In this case the duty prescribed being a simple

one and easily performed, held, that there was no DEBT-TO PERSON OTHER THAN CREDITOR. - A depo

ground on which the court could import into the act a sition of the maker of a note given and signed by him,

requirement that to constitute guilt an intentional in a case in which the obligee was not a party, for the

violation of the law must be shown. New Jersey purpose of obtaining a credit for the note as to be paid

Court of Errors. Halsted v. State. Opinion by by him, and for which he was allowed such a credit in

Beasley, C. J. (Appearing in 12 Vroom's Reports.) that case, is such an acknowledgment of the debt by him as will defeat the plea of the statute of limitations

INTOXICATION -- MAY BE SHOWN IN ORDER TO DEin an action on the note by the obligee against him.

TERMINE DEGREE OF CRIME. - Whilst voluntary inThe creditor is bound to prove a promise, but he is not toxication is no defense to the fact of guilt, yet where required to prove an express promise. It is sufficient the question of intent or premeditation is involved, for him, under the statute, to establish an acknowl

evidence of it is admissible for the purpose of deteredgment in writing, from wbich a promise of payment mining the precise degree of the crime. And in all might be implied. Such acknowledgment, to be effect- cases where the question is between murder in the ual, must not consist of equivocal, vague and indeter- first and second degree, the fact of the prisoner's minate expressions; but ought to contain an unquali

drunkenness may be proved to shed light on mental fied and direct admission of a previous, subsisting status, and thereby enable the jury to determine debt, which the party is liable for and willing to pay. whether the killing was from a premeditated purpose, Bell v. Morrison, 1 Pet. 351, 362. The same rule is laid or from passion excited from inadequate {provocation. down, with some variety of expression, in other cases.

But caution is necessary in the application of the docA distinct and unqualified acknowledgment would trine, as there may be many cases of premeditated have the same effect as a promise, because from such murder, in which the prisoner previously nerves himan acknowledgment the law implies a promise to pay.

self for the deed by liquor. In such cases as these, Linsell v. Bonsor, 2 Bingh. N. Cas. 241 (29 Eng. C. L.

drunkenness is entitled to no consideration in favor of 319). If an acknowledgment is relied on it ought to be the prisoner in determining the degree of his crime, a direct and unqualified admission of a present sub

but on the coutrary, tends to elevate the offense to sisting debt, from which a promise to pay would

murder in the first degree. Commonwealth v. Jones, naturally and irresistibly be implied. Sutton v. Bur

1 Leigh, 598; Pirtle v. State, 9 Humph. 663; Swan v. russ, 9 Leigh, 381. If there be an unequivocal admis

State, 4 id. 136; Boswell v. Commonwealth, 20 Gratt. sion that the debt is still due and unpaid, unaccompa

860. Virginia Supreme Court of Appeals. Willis v. nied by an expression, declaration or qualification

Commonwealth. Opinion by Anderson, J. (To appear indicative of an intention not to pay, the state of facts

in 32 Grattan's Reports.) out of which the law implies a promise is then present, and the party is bound by it. Young v. Monpoey, 2 Bailey (S. C.), 278. See, also, Bangs v. Hall, 2 Pick.

PROCEEDINGS OF THE AMERICAN BAR 368; Bailey v. Crane, 21 id. 3:23; Russell v. Copp, 5 N. H,

ASSOCIATION. 154; Head v. Manners, 5 J. J. Marshall, 255; Peebles y. Mason, 2 Dev. 367; Aylett v. Robinson, 9 Leigh, 45; THE principal proceedings of the American Bar Sutton v. Burruss, id. 381; Butcher v. Hixton, 4 id. 519; Bell v. Crawford, 8 Gratt. 110. Dinguid v. School

week were the following: President Bristow read his field. Opinion by Burks, J.

annual report, communicating the most noteworthy changes in statutory law on points of general interest

made in the several States and by Congress during the CRIMINAL LAW.

year. The fact that twenty-five States bave only bien

nial sessions, and the past year having been the off INTENT WIEN NOT NECESSARY TO PROVE IT. - year in twenty of these, has not left so much to report When an act, in general terms, is made indictable, a as last year. The Chinese have been attacked vigorcriminal intent need not be shown, unless, from the ously, but laws against them have been declared unlanguage or effects of the laws, a purpose to require constitutional in the United States courts, as fast as the existence of such intent can be discovered. It has taken there. Railroads have been attacked by laws in been many times decided, and indeed is the admitted California and Georgia. In Georgia a commission is general rule, that ignorance of the law is no defense named to fix rates. Maine has a law to prevent railagainst a criminal charge, Mr. Wharton, in 19 Alb. L. road employees from striking and stopping trains. J. 31, says "that ignorance of law is no defense is Connecticut has a law to examine men for color-blindgenerally admitted." In State v. Goodenow, 65 Me. 30, wess and prevent their employment on railroads. it was decided, on an indictment for adultery, that the Severe laws against robbing graves have been enacted defendant could not defend on the plea that she be- in Iowa, Ohio, and Maine. New York has a law lieved that she had been legally divorced. And in against sending annoying letters, predicated on those like manner, it is easy to cite cases establishing the sent to the Rev. Dr. Dix, which might be construed to doctrine beyond dispute or cavil, that in many cases reach many business letters. California and Georgia an honest mistake in regard to a state of facts will not have laws which provide for appointing judges pro exculpate when the prohibition of a statute has been tem., by consent of parties. California legalizes warviolated. In Reg. v. Woodrow, 15 M. & W. 401, which rants of arrest sent by telegraph. Connecticut exwas an information against a retailer of tobacco, for empts property to the value of $1,000, belonging to having in his possession adulterated tobacco, it was pensioners, from taxation. The laws of inheritance held that he was punishable, although it was shown have been changed in Massachusetts, giving husband

[ocr errors]

or wife a greater proportion of property than hereto- troubles were to arise under it. Patterson had a more fore, where the husband or wife dies intestate. Some essentially legal mind. In March, 1793, President States have attempted to rectify and improve their in- Washington appointed Patterson one of the justices solvent laws. It is to be hoped that out of the various of the Supreme Court, and he died in office in 1806, laws proposed in Congress some equitable National having refused to be appointed chief justice, thereby bankrupt law may be evolved. The New York Civil allowing John Marshall to be appointed. The speaker Code of Procedure, recently passed, made many radical closed with an eloquent tribute to Malesherbes, the changes, and was strenuously opposed by many, but is defender of Louis XVI. now generally conceded to be an improvement on the Henry E. Young, of Charleston, S. C., read a paper old Code. Regarding the attempts to regulate railroad on Sunday laws. He gave a historical review of these rates, the problem is one needing solution. He thought laws. The first of which we have record was in the that railroads, unhampered by competition, can do year 321, under Emperor Constantine. Among other much better for the country, if they choose, than things he forbade on that day was arbitration in suits, where there is a brisk competition, and he mentioned even by bishops. Theodosius, in 386, forbade shows the north-eastern part of England, where several un- and spectacles in circus and arena. From the Roman profitable roads had been united and become profitable Empire the reader came to England, where the King under one management, affording greatly reduced of the Saxons, in 692, ordered that slaves made to rates. The New York law to authorize States to take work on Sunday by their lord's command were set assigument of claims against other States is an im- free. Ethelstane, in 925, forbade to buy or sell on the portant one, and the constitutionality of it remains to Lord's Day. After the Conquest there was a tendency be tested. The Census Bureau says that $100,000,000 to strengthen the laws for the observance of Sunday; in State debts have been repudiated. Massachusetts yet in the time of Edward III., the courts sat on Sunhas made life insurance policies, on which two prem- day. In about 1561 the laws were made more striniums have been paid, non-forfeitable. South Carolina gent, and the word “Sabbath” began to be used. has enacted a law similar to that of New York, re- Under King James Puritanism was in the ascendant, moving liens on real estate after twenty years from and the lord mayor of London stopped the king's last payment. Anti-tramp laws have been passed in carriage in the streets of London on Sunday. Under several States, semingly much alike, except as to the Charles II and succeeding kings, the Sunday laws were length of time of imprisonment. New Jersey has constantly amended, but were not made stringent forbidden the payment of employees in store orders. enough to suit the Puritans. When Massachusetts Laws forbidding the intermarriage of blacks and was settled, among the first laws enacted were some whites have been passed in South Carolina and other for the observance of Sunday. Mr. Young proceeded States. The law heretofore passed to the same effect with a rapid review of the Sunday laws of many of the in Virginia has been declared constitutional by the States, and concluded with remarks on the same, sug. Uuited States court. Massachusetts has appointed a gesting their modification, particularly in reference to commission to examine persons arrested for the first allowing reasonable recreation, if not offensive. time, to see if they cannot be reformed without im- George Tucker Bispham, of Philadelphia, read a prisonment. Georgia and Iowa have appointed em- paper on the “Rights of Materialien, and Employees igrant comunissions to present facts to induce immigra- of Railroads as against Mortgages." When it was tion. Georgia has passed a stringent usury law. Only considered, he said, that over 10,000 miles of railroads twelve States and Territories have no laws against were now being operated under receivers appointed by usury. New Hampshire has offered a bounty for the courts, the magnitude of this subject could be estimanufacture of beet sugar. Louisiana requires every mated and the attention it had attracted in legal literperson carrying on a business or profession, except ature could be understood. Much discussion had agriculture and a few others, to pay special license taken place during the past fifteen years before and by fees.

courts. In some cases courts had gone very far in inThe annual address was delivered by Cortlandt terfering with rights of bondholders. Courts had put Parker, of New Jersey, on Alexander Ilamilton and the priority which had been allowed to wages and William Patterson, whom he pronounced the archi- supply claims on three grounds — public policy, which tects of the Federal Constitution. In recalling from required courts to protect the claims of those whose the past the great works of great lawyers, we uphold, labor or material went to maintain works of great he said, the reputation of our profession. These two public convenience, such as railroads are; the general were of different schools in politics, but they worked principle of equity that he who sought equity should together, each contending for his own ideas, and thus do equity; and because in some cases income which completed a structure which combined the best of would otherwise have been used to pay current exboth. The Constitution was more a growth from co- penses for supplies and labor had been used to furnish lonial times than an edifice built up. Necessity had permanent improvements to the road; and it was just, bound the colonies together during the war; but at the in such cases, that funds which had been diverted close of the Revolution jealousies arose, which com- from labor and supply claimants should be restored to pelled a new organization. Hamiltou, while in camp them out of the net income in the hands of the reduring the war, had foreseen and sketched in a letter ceiver. These grounds of the decision of the courts the failure of the confederation, and prepared a plan were examined, as they were applicable to three classes for a Federal goverument. The convention to form of property, viz. : The corps of mortgaged property, the Constitution was mainly called through the exer- the income, and the personalty acquired after the tions of Hamilton. After its organization he presented creation of the mortgage, but supposed to be embraced his plan of a Constitution for the country, embodying in its terms. As to all of these classes of property the what came to be known as the Federal one. After- conclusions reached were that neither on the ground ward Judge Patterson presented his plan, embodying of public policy nor of general equity were wages and prominently the ideas of State sovereignty. Mainly supply claimants entitled to priority, and that even the through his efforts the Senate was prevented from test of diversion and restoration, as laid down by the being organized on the basis of population. Hamil- Supreme Court of the United States in Fosdick against ton and Patterson were alike eminent as lawyers. Schell, reported 9 Otto, was to be very cautiously Hamilton was no theorist, but was eminently a prac- applied, and should not be extended. This case was tical statesman, standing at the head of the New York commented on, and reference was also particularly Bar. His specialty was constitutional law. IIe early made to the recent order of the Circuit Court of the foresaw, after the Constitution went into effect, what I United States in the Philadelphia & Reading Railroad


« SebelumnyaLanjutkan »