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NOTES OF RECENT DECISIONS.
nor unless suit is commenced against the company
within one year after the debt becomes due, and no PARTIES: IN ACTIONS RELATING TO CORPORATIONS:
suit shall be brought against any stockholder until an STOCKHOLDERS. - Where any fraud has been perpe
execution against the company is returned unsatisfied trated by the directors of a corporation, by which the
in whole or in part : Held, that the liability of the property or interest of the stockholders is affected, the
stockholder grows out of his contract in becoming a stockholders can come in as parties, and ask that their
stockholder, a liability in the first instance, and is property shall be relieved from the effeot of such fraud,
not a penalty or in the nature of a penalty or forbut the question is raised whether they can so come in
feiture for the non-performance of duties or acts of in a suit where there will be nothing left for the stock
the officers. The provisions of the statute referred holders. U.S. Cir. Ct.,Indiana, March 18, 1878. Bay
to are mere limitations of liability, and not condiliss v. Lafayette, Muncie, etc., R. R. Co. (Ch. Leg.
tions upon which liability is imposed. The courts News.)
of this State may enforce such contracts. Sup. Ct., BANKRUPTCY: OF CORPORATION: BANK: DUTIES OF
Florida, January term, 1878. Flash v. Conn. DIRECTORS. -1. The bankruptcy of a corporation HOMESTEAD: WHAT DOES NOT CONSTITUTE FAMILY does not put an end to the corporate existence, nor SO AS TO ENTITLE TO.-Where a single man, a cripple, vacate the office of its directors. 2. After a chartered lived on his plantation, having with him no relatives bank has been adjudicated a bankrupt, a member of or connections, with whom certain servants resided its last active board of directors (the board in exist- with their children and grandchildren in the same ence when the failure occurred and the act of bank- house, managed his domestic affairs and ministered to ruptcy was committed) cannot buy up claims against his infirmities, having his confidence and friendship as it at a discount, and entitle himself to credit therefor faithful servants, he had no such family as entitled at full face value in settlement with creditors, on his bim to a homestead. Sup. Ct., Texas, Jan. 15, 1878. personal liability as a stockholder. At least, this can- Howard v. Marshall (Texas L. J.) not be done so as to defeat the suit of a creditor who
NEGLIGENCE: PASSENGER LANDING FROM STEAMcommenced his action before the bought up claims were actually applied in extinguishment of the stock
BOAT.-Appellee was a passenger on one of the boats holder's personal liability, and whilst the stockholder
belonging to appellant, and was injured while on the held them, as transferee, open against the bank, he
staging, going ashore, being struck by the handles of a not having surrendered or canceled them until after
coal box in the hands of the workmen of the boat. the action was brought. Sup. Ct., Georgia, Feb. 19,
This was at Quincy, and it was maintained that ap1878. Holland v. Heyman.
pellee ought to have remained in the cabin for the two BOND: OF UNITED STATES REVENUE COLLECTOR:
hours the boat was to remain at the wharf. Beld,
that such an objection is untenable. That appellee, in SURETIES NOT LIABLE TO PRIVATE INDIVIDUALS FOR COLLECTOR:-A United States revenue col
thus landing, could not be held to extraordinary care lector and his securities are not liable in a suit upon
and prudence, as there was no appearance of danger. the bond of the collector for a tort or injury com
There was no similarity in this to the case of a passenmitted by one of the deputies of the collector upon
ger attempting to leave a train before reaching the the property of the plaintiff. Such bond is for the
platform. Carriers of passengers for hire are bound to indemnity of the United States alone, not for private
the utmost care and diligence in providing for their individuals injured by the wrongs and torts of the
safety, by the use of efficient and suitable modes of collector and deputies. The collector might be pro
carriage, and in managing, directing and using these ceeded against under section 3169 of the Revised
meaus thus provided. The decrees of care, vigilance, Statutes (U. S.) Sup. Ct., Georgia, Feb. 19, 1878.
and skill, are the highest; and the responsibility is for Clarke v. United States.
the least neglect known to the law short of insurance.
Sup. Ct., Illinois, Feb. 9, 1878. Keokuk N. L. Packet CORPORATION: LIABILITY OF STOCKHOLDERS: CON
Co. v. True. STRUCTION OF NEW YORK STATUTE.- Defendant was stockholder in a company organized under a general act authorizing the formation of corporations for manufacturing purposes, etc., passed by the Legisla
COURT OF APPEALS DECISIONS. ture of New York, 'which provides, section 10, that all the stockholders of every company incorporated
: under this act shall be severally individually liable to the creditors of the company to an amount equal to
Judgment affirmed, with costs – Kincaid v. Archithe amount of stock held by them respectively upon
bald; Muller v. McKesson; Joues v. Smith; Calvo u. all debts and contracts of the company until the whole Davies; Rexter v. Starin; Duffield v. Horton. amount of capital stock fixed by the company shall Order affirmed, with costs - In the matter of the have been paid in, and a certificate thereof made and petition of Chapman to vacate an assessment. - Aprecorded as required in section 11, which provides peal dismissed without costs to either party in this that the president and a majority of the trustees shall, court - Hunter v. Hatfield.- - Motion denied - Wetwithin thirty days after the payment of the last install- more v. Smith. Motion for reargument denied ment of the capital stock, make a certificate of the with $10 costs - Littaner v. Goldman; New v. Nicoll; amount of the capital stock fixed and paid in, to be Bruce v. Carter. Order reversed and judgment on sworn to by such officers and recorded in the county report of referee affirmed, with costs — Crawford v. wherein the business of the company is carried ou. O'Connor.- Judgment of General Term reversed Section 24 provides that no stockholder shall be per- and judgment on verdict affirmed, with costs. Also, sonally liable for any debt so contracted which is not appeal from order of General Term dismissed, without to be paid within one year from the time of contracting costs to either party – Olcott v. MacLean.
The following decisions were handed down Tuesday,
sums as and for their salaries from January 1, 1876, to
October 1, 1877:
$17,500 The Clerk...
5,250 To the Editor of the Albany Law Journal :
$22,750 SIR – On Tuesday, April 2, 1878, the chairman of the committee on ways and means reported to the assem
The bill now before the assembly proposes to pay bly the supply bill for the ensuing fiscal year beginning the same gentlemen out of the State treasury as and October 1, 1878. That bill contains an appropriation for their salaries from October 1, 1877, to October 1, of twenty-six thousand dollars for the salaries of the 1879, as follows: arbitrator and clerk of the Court of Arbitration of the The Arbitrator.....
$20,000 Chamber of Commerce of the State of New York for The Clerk..
6.000 the two years from October 1, 1877, to October 1, 1879,
$26,000 at the rate of ten thousand dollars a year for the arbitrator and three thousand dollars per year for his clerk.
In view of this enormous outlay of public money, it So far as it is an appropriation for the year ending is reasonable to ask what has been done to earn it, and October 1, 1878, this bill reverses the action of the
the question is easily answered from the public records. legislature of 1877, for that body not only struck this appropriation out of the supply bill of that year, but
The clerk of the court has performed his duty under
section 29, so far as to render to and file with the State in the assembly, I believe, passed an act abolishing the
treasurer up to October 1, 1876, seven sworn statecourt as a useless luxury which was not of the slightest benefit to any one except the two fortunate officials
ments, which he probably believed to be true at the who did nothing whatever but draw their very boun
time he made them. But according to his statements,
so made and filed, the receipts and payments by him tiful salaries, and laugh at the ease with which the members of the Chamber of Commerce had been be
under section 29, were as follows:
.$124 00 guiled into procuring them such well-paid sinecures.
September 30, 1875, to January 1, 1876. 189 35 The Court of Arbitration was created by act of leg- January 1, 1876, to February 1876.
140 50 islature passed June 5, 1875, chapter 495, Laws of 1875.
February 1, 1876, to March 1, 1876..
80 00 March 1, 1876, to June 1, 1876..
161 00 Among other things that act provided section 6,
June 1, 1876, to July 1, 1876.
120 00 the salary of the arbitrator shall be at the rate of ten July 1, 1876, to October 1, 1876
180 50 thousand dollars per annum, commencing with the 1st day of January, 1875, and shall be raised and paid out
Total (nineteen months)..
$995 35 of the State treasury, on the warrant of the comp- During this period as I have shown the salaries paid troller, in the same manner as salaries of judges of the to the arbitrator and clerk amounted to $22,750. Supreme Court. The salary of the arbitration clerk The amount so returned and paid over to the State shall be three thousand dollars per annum, commenc- treasurer would amount to about the equivalent of ing at the same period, and shall be raised and paid in twenty-five cases, heard and determined by or subthe same manner."
mitted the Court of Arbitration during the nineteen Section 29 prescribes that, “in every case tried by months intermediate June 5, 1875, and October 1, 1876, said Court of Arbitration, the sum of twenty dollars and the docket of that court shows that many and is to be paid to the arbitration clerk, by each of the
But as careful examination as I have been able respective parties thereto; ” and the same section to make will show that even out of these twenty-five also provides for certain smaller sums to be paid to the cases only about six were ever submitted to that clerk for such services as he would naturally be called court; and that the remainder were cases (one of upon to render in the course of the action, and then which was a case of my own) which were tried before provides, that “the arbitration clerk shall make a the arbitrator as a referee, appointed by oue of the sworn return on the first day of each month of all the superior courts of record, in all of which he received fees received by him pursuant to this section, during the enormous referees' fees for which he is somewhat the preceding year, and file the same with the treas- noted. It is thus made clearly to appear that, iu at urer of the State of New York, and, at the same time, least nineteen of these cases, the arbitrator has caused he shall pay over all moneys received by him for such or permitted said cases to be entered upon the docket fees during such month to the said treasurer, to be ap- of his Court of Arbitration as if the same had been plied toward paying the salary of said arbitrator and regularly commenced and tried in that court; and to the arbitration clerk”
keep up the illusion, the forty dollars which the The act from which I make the above citations was statute requires shall be charged by the court in each amendatory of chapter 278 of the Laws of 1874, which case has been paid into the treasury of the court by provided that the salaries of the arbitrator and clerk some one, out of the sums so received by the arbitrashould be fixed and paid by the Chamber of Com- tor as referee, and the balance has been retained by merce.
him in addition to the $17,500, received by him from It will be seen that the act of 1875 provides, that the the State. Balaries of the arbitrator and his clerk shall be paid As nearly as I can get at it, the fees received by him for nearly six months before the time of the organiza- as such referee in these nineteeu cases or thereabouts tion of the court, and I assume that the salaries from will amount to six thousand dollars. January 1, 1875, to October 1, 1876, have been so paid. Since October 1, 1876, the Court of Arbitration has The appropriation to pay those salaries for the fiscal done, substantially, no business; and yet it is now year ending October 1, 1876, is to be found at pages 24 proposed to reward the arbitrator with $20,000 — foi aad 25, Laws of 1876.
T. M. TYNG. It will be seen, therefore, that these gentlemen have received from the treasury of the State the following
DREXEL BUILDING, New York, April 3, 1878.
NEW BOOKS AND NEW EDITIONS.
The publishers of the LAW JOURNAL have received
WASHBURN'S MANUAL OF CRIMINAL LAW. A Manual of Criminal Law, including the mode of procedure by which it is enforced. Especially designed for the use
, By Emory Washburn, LL. D., author of A treatise upon the American Law of Real Property," eto. Edited with notes by Marshall D. Ewell, professor in Union College of law, Chicago, and author of "A Treatise on the Law of Fixtures," etc. Chicago: Callaghan & Company, 1878. NY thing from the pen of the late Professor Wash
burn designed for the use of law students, must be welcomed by that great body of young men who are standing at the threshold of the profession and preparing themselves to enter it and share its honors. The little book before us was written by its lamented author but a short time before his death, and was when he left it substantially complete. The editor has made a few additions to the text and the notes which are indicated ; but those in the text especially are so few that the book must be examined very thoroughly to discover them. The volume is, we need not say, an excellent text-book for the student, and any young man who will devote a few weeks to its careful perasal will be thoroughly grounded in the principles of criminal law, and the practicing lawyer will not find time spent in reading the book uselessly spent. The object of the book is to teach only general principles, and the mode in which it is sought to accomplish this purpose is to describe in the first place the principal crimes known to the law, as well as the principle upon which their character for criminality rests, and then to take up and describe step by step the processes by which prosecutions for offenses are begun and carried on to final judgment. As the readiest means of accomplishing this end it attempts to illustrate the various matters treated by tracing a criminal prosecution from its incipient stage-a complaint before a magistrate-to its final judgment and sentence. The work of the editor, Mr. Elwell, seems to have been carefully and conscientiously done, and the volume is published in a substantial and attractive form.
the following letter from one of our subscribers in New Zealand, which, although not intended for publication, may not be uninteresting:-“Broadway, Reefton, N. Z., January 26, 1878. Messrs. Weed, Parsons & Co., Albany, New York — Gentlemen: Please find herewith post-office order, upon London, in your favor for £1 ($5.00 in your currency) for this year's subscription to the ALBANY LAW JOURNAL. I am sorry that our post-office could not give me an order payable in New York. If it submits you to extra cost in the way of exchange pray advise me. I am much pleased with the JOURNAL, and, although our systems differ, I have found in !your articles the true ring of juridical philosophy. I have read, and I hope I have profited by the reading of Kent's Commentaries and Story's classical works, and I am glad indeed to note that the loyal respect observed by those great men for our dear old common law is maintained by your jurists.
“Your reports I have lent to some of our judges in this country, and they are by them much appreciated.
• WILLIAM PITT." In the case of Fiske v. Tolman, decided last week in the Supreme Judicial Court of Massachusetts, the plaintiff made a conveyance to the defendant of an estate on Westminster street, in Boston. The premises were subject to a mortgage, and the deed contained a clause in these words: “Subject, however, to a mortgage held by the Lowell Five Cents Savings Bank of $7,000, which is part of the above-named consideration.' The principal question in the case was whether these words imported a promise to pay the mortgage. At the trial before Mr. Justice Soule, without a jury, the court declined to rule upon the evidence presented, -that the defendant was liable for the amount of the mortgage note and interest, and ordered judgment for the defendant. The plaintiff alleged exceptions which have now been overruled by the full court, for the reason that “the language of the deed taken by the grantee does not import a promise to pay the mortgage debt.”
BISHOP ON CONTRACTS. The Doctrines of the Law of Contracts in their principal out
lines, stated, illustrated and condensed. By Joel Prentiss Bishop. St. Louis: Soule, Thomas & Wentworth, 1878. This volume contains a statement of the law of contracts in brief sections, and is of course well written and accurate. The object of the author has been, as he says,
“to present the body of the law of contracts without its bloat in form to be examined and re-examined by old and young, the learned and the unlearned, the student, the practicing lawyer, the judge, the man of business, as any skeleton is, by all classes of inquirers.” The volume seems to be well adapted for the purpose of the author. As a book wherein the student may learn the principles of this important branch of the law, we have seen nothing better; as a handy book of reference to the practitioner, that he may take with him where it would be burdensome to carry the larger treatises , it will prove a great benefit, and as an easily understood and accurate epitome of the laws of business, it must recommend itself to the merchant and tradesman. The text throughout is illustrated with numerous references to authority, a thing fully as essential in a work of this kind as in a larger work. The index to the volume is very full and is well arranged. In all respects the book is worthy the reputation of its author.
No better exemplification of the length to which the doctrine of common employment" has been permitted to go could be fou than the case of Swuinson v. North-Eastern Railway Company, which was decided by the English Court of Appeal in the latter part of February. The plaintiff was the widow of a signalman porter in the service of the Great Northern Company, who was killed in the Leeds station by the negligence of an engine driver of the North-Eastern Company. The Leeds station is occupied by both companies under an agreement, and the expenses of that station are jointly defrayed by both companies. Amongst these expenses came the wages of the deceased signalman, and upon this ground it was argued that the Great Northern signalman was a collaborateur with the North-Eastern engine driver, whose negligence caused his death. The court below yielded to this argument, but it is not surprising to find that the Court of Appeal has unanimously reversed the decis. ion of the court below, and given judgment for the plaintiff. If the decision for the company had been allowed to stand, the collaborateurs which the law would have created might have been counted by thousands, for there are few large railway stations which are not occupied and paid for by more companies than one.
The Albany Law Journal.
All communications intended for publication in the
A writ of habeas corpus was then moved for, Clark LAW JOURNAL should be addressed to the editor, and the claiming that the tender of coupons was a sufficient Dame of the writer should be given, though not necessa
tender of the fine, and that, therefore, he was illerily for publication. Communications on business matters should be ad
gally confined. The court sustained this claim, saydressed to the publishers.
ing that the act of 1870 constituted a contract between the State and the bondholder which no subsequent action of the State could impair. The coupon under that contract represented so much
gold as far as the State was concerned, and must be ALBANY, APRIL 13, 1878.
received for its face value for all taxes, debts and
demands due the State; that fines were demands CURRENT TOPICS.
due the State; that all moneys coming to the State, The Supreme Court of the United States, in the for taxes, debts, dues or demands, must be payable in
case of Pensacola Telegraph Co. v. Western Union coupons. It was claimed on the part of the State Telegraph Co., just decided, pass upon a very im-authorities, that fines which are, by the Constitution portant constitutional question, namely: whether of the State, devoted to the support of public schools, the power conferred upon Congress to regulate were not to be included in the provisions of the act, commerce between the different States entitles that but the court held otherwise, saying that the provisbody to exercise, if it desires to do so, exclusive ions of the Constitution dedicating certain revenues control over telegraphic communication. The court to the public schools, mean that an amount equal to reaches the conclusion that the telegraph is an in- the amount of such revenues shall be raised and apstrument of commerce, and that as such it comes plied to the schools, and that it is the duty of the within the controlling power of Congress as against Legislature to raise revenue sufficient both to pay hostile State legislation. In this case the legislature the interest on the debt and to support the schools, of Florida gave to a local company the exclusive and that it could not be presumed that that body right to maintain telegraphs in a portion of the would fail to do its duty. We are glad that the State. A company chartered by another State, but highest court of Virginia has emphatically prowhich had complied with the requirements of an act nounced against a repudiation of the public debt. of Congress passed July 24, 1866, in relation to telegraph lines, undertook to operate its lines within
A case of some importance upon the law relating to the territory given to the local company. The lat
corporations was decided in the United States Dis
trict Court for the Northern District of Illinois, on ter company brought action to restrain the other
the 8th inst. from carrying on business. The Supreme Court
One Esterly made a claim against the held that the statute of Florida was inoperative bankrupt estate of one Meeker, which was disputed, against the defendant, and that the action was not
and the question was, whether an agreement to pay maintainable.
a bonus to an individual member of a corporation, The court distinguishes the case from that of Paul v. Virginia, 8 Wall. 168,
for a transfer of the charter of the corporation,
the corporation in that case not being engaged in inter
where the money to be received was not to be paid
over for the benefit of the corporation, is valid. state commerce.
The court held that such an agreement is contrary The Supreme Court of Appeals of the State of
to public policy, and cannot be enforced.
The Virginia, in a case decided on the 4th inst., has put point is a new one, and has not, we think,
been an end to the schemes for repudiating the public passed upon before. debt, which have found favor among the legislators and people of Virginia. In 1871, the State being Inter arma silent leges has ceased to be a vital, indebted for a sum greater than it was convenient
truthful maxim. Amid wars and rumors of wars the to pay, a legislative act was passed providing for the publicists of Great Britain and Europe-the mouldissue of new bonds, which were to be exchanged ers of the opinions and policies that are to be--are for those then in existence at the rate of two dollars steadily agitating and studying the problems of Inof the new for three of the old. To the new bonds ternational law that are to ultimate in the thousand were attached interest coupons, which were made years of peace.” Among these none stands higher, by law receivable for all taxes, debts or demands has done more or has brought to the discussion a due the State. Under this act, $20,000,000 of clearer judgment or more practical common sense bonds were issued. The following year the Legis-than Professor Lorimer, Professor of Public Law in lature repealed the act and prohibited the receipt of the University of Edinburgh, from whom we have a coupons for taxes, debts or demands due the State. brief but suggestive letter this week. Professor One Clark, who was confined in jail for the non- Lorimer stands high in the estimation of his colpayment of fines due to the State, tendered coupons laborators in this country, and they will be pleased at their face value in payment, which were refused. to hear from him again.
Vol. 17.- No. 15.
A rather unusual scene took place in a Philadel- the perfected work of the former commission was phia Criminal Court on the 6th inst. : An individual not also submitted to this committee. It is beyond who bears the astonishing name, Blasius Pistorius, question a work of great merit and surely contains and who is by profession a priest, has been twice many features worth the attention of the legislature. tried and convicted of murder in the first degree. The expenses of the committee are not to exceed The first conviction his counsel were able to set $15,000. aside, but as the facts were such that there was no
Dr. Spear's article on British Extradition Precehope of a verdict of acquittal, they advised him to
dents—the first half of which we give this weekplead guilty to manslaughter, it being understood examines, with great acumen, the leading cases that this plea would be accepted. He refused to do
cited by Mr. Secretary Fish in his correspondence this, and was convicted. A motion was thereafter
with Lord Derby, to support his position in the made by his counsel for a new trial, at the argument
Winslow case, and shows conclusively that they are of which he was present. After one of the counsel
in nowise authority for the position then taken by had spoken in or of the motion, the prisoner
our government. Dr. Spear's articles on Extradiarose and delivered a long speech, in which he re
tion are attracting the attention of lawyers and pubviewed the evidence, and made severe charges licists in both this country and Europe, and are reagainst all the members of the legal profession who ceiving deserved commendation. had had any thing to do with the case, charging his own counsel with having been in collusion with
NOTES OF CASES. the district attorney, and stating that he had been convicted in order to please Prince Bismarck. The
N the case of Killman v. State, 2 Texas Ct. App. speech of the prisoner was read from a manuscript, and although quite lengthy, was listened to to the lawfully keeping a disorderly house for the purposes end by the court.
of public prostitution,” etc., it was held that a
canvas tent, if kept for the purposes mentioned, The Supplement accompanying this number con
would come within the meaning of “house" as used tains, among others, statutes requiring justices of
in the statute creating the offense. In an offense of the peace to give bonds; providing for the consolida
this kind the controlling idea is that the structure tion of fire insurance companies; relating to build
is a place kept for the purposes of public prostituing and loan associations; amending section 22 of
tion, and the material of which the edifice is built chapter 628 of the Laws of 1857, relating to the
is of secondary importance. It has been held that recovery of penalties for the unlawful sale of in
proof of the use of a single room in a tenement toxicating liquors; amending the law regarding co
will support an indictment for keeping a house for operative and industrial unions. Our plan of mak
such purposes. Commonwealth v. Ilill, 14 Gray, 26; ing the Supplement this year a distinct and com
State v. Garrity, 46 N. H. 61. But in respect to plete embodiment of the public and general statutes
the offense of burglary the rule is different. That of the State, with full index, list of titles, etc.,
offense cannot be committed in a tent or booth in a meets with very general approval among the pro-market or fair, even though the owner lodge in it, fession.
because it is not a permanent but a temporary ediOn Wednesday the Senate, by a vote of 17 to 11, fice. 1 Hawk. P. C., ch. 38, § 35; 1 Hale's P. C. passed a concurrent resolution providing for the ap- 557. See, also, People v. Birby, 67 Barb. 221, where pointment of a joint revision and code committee an indecent exhibition of women in a room which of three members from each house. This committee was not open to the public generally, but only to is to sit during the interval between this and the next such as were permitted to enter and paid therefor, session of the legislature, and is to examine, revise was held to be in a “public place” within the statand report upon the Code of Civil Procedure, and ute against indecent exposure. In all offenses of all bills or reports submitted at this session by the this kind the construction is such as to give the Revision Commissioners. The “Code of Pro- words of the statute the broadest meaning, though cedure of 1849 " was also submitted to the com- when the offense is against property a different conmittee. The object of this committee, as we under-struction very properly prevails. See Callahan v. stand it, is to make a careful review and revis- State, 41 Tex. 43; Clifton v. State, 53 Ga. 241. ion of the work of the present commission far as reported; to retain the good, to reject In Proctor v. Bigelow, decided by the Supreme the bad, to restore so much of the old Code Court of Michigan at the January, 1878, term, of Procedure as shall seem preferable to the new, which was an action brought by a widow for dower and to report to the next session such a Code or in lands of her husband, the lands were aliened Codes as in its judgment should become the law in 1838, the husband died in 1851, and the action of this state. We regret that the Code of Civil Pro- was brought in 1876. There were two questions cedure reported complete in 1849, or in other words, presented: First, whether plaintiff's marriage was