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NOTES OF RECENT DECISIONS.
PARTIES: IN ACTIONS RELATING TO CORPORATIONS: STOCKHOLDERS.- Where any fraud has been perpetrated by the directors of a corporation, by which the property or interest of the stockholders is affected, the stockholders can come in as parties, and ask that their property shall be relieved from the effect of such fraud, but the question is raised whether they can so come in in a suit where there will be nothing left for the stockholders. U. S. Cir. Ct., Indiana, March 18, 1878. Bayliss v. Lafayette, Muncie, etc., R. R. Co. (Ch. Leg. News.)
BANKRUPTCY: OF CORPORATION: BANK: DUTIES OF DIRECTORS.-1. The bankruptcy of a corporation does not put an end to the corporate existence, nor vacate the office of its directors. 2. After a chartered bank has been adjudicated a bankrupt, a member of its last active board of directors (the board in existence when the failure occurred and the act of bankruptcy was committed) cannot buy up claims against it at a discount, and entitle himself to credit therefor at full face value in settlement with creditors, on his personal liability as a stockholder. At least, this cannot be done so as to defeat the suit of a creditor who commenced his action before the bought up claims were actually applied in extinguishment of the stockholder's personal liability, and whilst the stockholder held them, as transferee, open against the bank, he not having surrendered or canceled them until after the action was brought. Sup. Ct., Georgia, Feb. 19, 1878. Holland v. Heyman.
BOND: OF UNITED STATES REVENUE COLLECTOR: SURETIES NOT LIABLE TO PRIVATE INDIVIDUALS FOR TORT OF COLLECTOR:-A United States revenue collector and his securities are not liable in a suit upon the bond of the collector for a tort or injury committed by one of the deputies of the collector upon the property of the plaintiff. Such bond is for the indemnity of the United States alone, not for private individuals injured by the wrongs and torts of the collector and deputies. The collector might be proceeded against under section 3169 of the Revised Statutes (U. S.) Sup. Ct., Georgia, Feb. 19, 1878. Clarke v. United States.
nor unless suit is commenced against the company within one year after the debt becomes due, and no suit shall be brought against any stockholder until an execution against the company is returned unsatisfied in whole or in part: Held, that the liability of the stockholder grows out of his contract in becoming a stockholder, a liability in the first instance, and is not a penalty or in the nature of a penalty or forfeiture for the non-performance of duties or acts of the officers. The provisions of the statute referred to are mere limitations of liability, and not conditions upon which liability is imposed. The courts of this State may enforce such contracts. Sup. Ct., Florida, January term, 1878. Flash v. Conn.
under this act shall be severally individually liable to the creditors of the company to an amount equal to the amount of stock held by them respectively upon all debts and contracts of the company until the whole amount of capital stock fixed by the company shall have been paid in, and a certificate thereof made and recorded as required in section 11, which provides that the president and a majority of the trustees shall, within thirty days after the payment of the last installment of the capital stock, make a certificate of the amount of the capital stock fixed and paid in, to be sworn to by such officers and recorded in the county wherein the business of the company is carried ou. Section 24 provides that no stockholder shall be personally liable for any debt so contracted which is not to be paid within one year from the time of contracting
HOMESTEAD: WHAT DOES NOT CONSTITUTE FAMILY SO AS TO ENTITLE TO.-Where a single man, a cripple, lived on his plantation, having with him no relatives or connections, with whom certain servants resided with their children and grandchildren in the same house, managed his domestic affairs and ministered to his infirmities, having his confidence and friendship as faithful servants, he had no such family as entitled him to a homestead. Sup. Ct., Texas, Jan. 15, 1878. Howard v. Marshall (Texas L. J.)
NEGLIGENCE: PASSENGER LANDING FROM STEAMBOAT.-Appellee was a passenger on one of the boats belonging to appellant, and was injured while on the staging, going ashore, being struck by the handles of a coal box in the hands of the workmen of the boat. This was at Quincy, and it was maintained that appellee ought to have remained in the cabin for the two hours the boat was to remain at the wharf. Held, that such an objection is untenable. That appellee, in thus landing, could not be held to extraordinary care and prudence, as there was no appearance of danger. There was no similarity in this to the case of a passenger attempting to leave a train before reaching the platform. Carriers of passengers for hire are bound to the utmost care and diligence in providing for their safety, by the use of efficient and suitable modes of carriage, and in managing, directing and using these meaus thus provided. The decrees of care, vigilance, and skill, are the highest; and the responsibility is for the least neglect known to the law short of insurance. Sup. Ct., Illinois, Feb. 9, 1878. Keokuk N. L. Packet Co. v. True.
CORPORATION: LIABILITY OF STOCKHOLDERS: CONSTRUCTION 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 Legislature of New York, 'which provides, section 10, that all
COURT OF APPEALS DECISIONS.
the stockholders of every company incorporated THE following decisions were handed down Tuesday,
April 2, 1878:
Judgment affirmed, with costs-Kincaid v. Archibald; Muller v. McKesson; Jones v. Smith; Calvo v. Davies; Rexter v. Starin; Duffield v. Horton. Order affirmed, with costs-In the matter of the petition of Chapman to vacate an assessment. Appeal dismissed without costs to either party in this court-Hunter v. Hatfield.- Motion denied - Wetmore v. Smith. Motion for reargument denied with $10 costs - Littaner v. Goldman; New v. Nicoll; Bruce v. Carter. Order reversed and judgment ou report of referee affirmed, with costs - Crawford v. O'Connor. -Judgment of General Term reversed and judgment on verdict affirmed, with costs. Also, appeal from order of General Term dismissed, without costs to either party - Olcott v. MacLean.
THE COURT OF ARBITRATION. To the Editor of the Albany Law Journal:
SIR - On Tuesday, April 2, 1878, the chairman of the committee on ways and means reported to the assembly the supply bill for the ensuing fiscal year beginning October 1, 1878. That bill contains an appropriation of twenty-six thousand dollars for the salaries of the arbitrator and clerk of the Court of Arbitration of the Chamber of Commerce of the State of New York for the two years from October 1, 1877, to October 1, 1879, at the rate of ten thousand dollars a year for the arbitrator and three thousand dollars per year for his clerk.
So far as it is an appropriation for the year ending October 1, 1878, this bill reverses the action of the legislature of 1877, for that body not only struck this appropriation out of the supply bill of that year, but in the assembly, I believe, passed an act abolishing the court as a useless luxury which was not of the slightest benefit to any one except the two fortunate officials who did nothing whatever but draw their very bountiful salaries, and laugh at the ease with which the members of the Chamber of Commerce had been beguiled into procuring them such well-paid sinecures.
The Court of Arbitration was created by act of legislature passed June 5, 1875, chapter 495, Laws of 1875. Among other things that act provided section 6, "that the salary of the arbitrator shall be at the rate of ten thousand dollars per annum, commencing with the 1st day of January, 1875, and shall be raised and paid out of the State treasury, on the warrant of the comptroller, in the same manner as salaries of judges of the Supreme Court. The salary of the arbitration clerk shall be three thousand dollars per annum, commencing at the same period, and shall be raised and paid in the same manner."
Section 29 prescribes that, "in every case tried by said Court of Arbitration, the sum of twenty dollars is to be paid to the arbitration clerk, by each of the respective parties thereto;" and the same section also provides for certain smaller sums to be paid to the clerk for such services as he would naturally be called upon to render in the course of the action, and then provides, that "the arbitration clerk shall make a sworn return on the first day of each month of all the fees received by him pursuant to this section, during the preceding year, and file the same with the treasurer of the State of New York, and, at the same time, he shall pay over all moneys received by him for such fees during such month to the said treasurer, to be applied toward paying the salary of said arbitrator and the arbitration clerk "
The act from which I make the above citations was amendatory of chapter 278 of the Laws of 1874, which provided that the salaries of the arbitrator and clerk should be fixed and paid by the Chamber of Com
It will be seen that the act of 1875 provides, that the salaries of the arbitrator and his clerk shall be paid for nearly six months before the time of the organization of the court, and I assume that the salaries from January 1, 1875, to October 1, 1876, have been so paid. The appropriation to pay those salaries for the fiscal year ending October 1, 1876, is to be found at pages 24 and 25, Laws of 1876.
It will be seen, therefore, that these gentlemen have received from the treasury of the State the following
In view of this enormous outlay of public money, it is reasonable to ask what has been done to earn it, and the question is easily answered from the public records. The clerk of the court has performed his duty under section 29, so far as to render to and file with the State treasurer up to October 1, 1876, seven sworn statements, which he probably believed to be true at the time he made them. But according to his statements, so made and filed, the receipts and payments by him under section 29, were as follows:
June to September 30, 1875.....
Total (nineteen months).........
During this period as I have shown the salaries paid to the arbitrator and clerk amounted to $22,750.
140 50 80.00
The amount so returned and paid over to the State treasurer would amount to about the equivalent of twenty-five cases, heard and determined by or submitted to the Court of Arbitration during the nineteen months intermediate June 5, 1875, and October 1, 1876, and the docket of that court shows that many and more. But as careful examination as I have been able to make will show that even out of these twenty-five cases only about six were ever submitted to that court; and that the remainder were cases (one of which was a case of my own) which were tried before the arbitrator as a referee, appointed by one of the superior courts of record, in all of which he received the enormous referees' fees for which he is somewhat noted. It is thus made clearly to appear that, in at least nineteen of these cases, the arbitrator has caused or permitted said cases to be entered upon the docket of his Court of Arbitration as if the same had been regularly commenced and tried in that court; and to keep up the illusion, the forty dollars which the statute requires shall be charged by the court in each case has been paid into the treasury of the court by some one, out of the sums so received by the arbitrator as referee, and the balance has been retained by him in addition to the $17,500, received by him from the State.
NY thing from the pen of the late Professor Washburn 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 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 perusal 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.
BISHOP ON CONTRACTS.
The Doctrines of the Law of Contracts in their principal outlines, 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.
publishers of the LAW JOURNAL have received
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 (85.00 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. Yours faithfully, "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."
No better exemplification of the length to which the doctrine of "common employment" has been permitted to go could be found than the case of Swainson 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 decision 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.
ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.
Communications on business matters should be addressed to the publishers.
The Albany Law
ALBANY, APRIL 13, 1878.
THE Supreme Court of the United States, in the
case of Pensacola Telegraph Co. v. Western Union Telegraph Co., just decided, pass upon a very important constitutional question, namely: whether the power conferred upon Congress to regulate commerce between the different States entitles that body to exercise, if it desires to do so, exclusive control over telegraphic communication. The court reaches the conclusion that the telegraph is an instrument of commerce, and that as such it comes within the controlling power of Congress as against hostile State legislation. In this case the legislature of Florida gave to a local company the exclusive right to maintain telegraphs in a portion of the State. A company chartered by another State, but which had complied with the requirements of an act of Congress passed July 24, 1866, in relation to telegraph lines, undertook to operate its lines within the territory given to the local company. The latter company brought action to restrain the other from carrying on business. The Supreme Court held that the statute of Florida was inoperative against the defendant, and that the action was not maintainable. The court distinguishes the case from that of Paul v. Virginia, 8 Wall. 168, the corporation in that case not being engaged in interstate commerce.
The Supreme Court of Appeals of the State of Virginia, in a case decided on the 4th inst., has put an end to the schemes for repudiating the public debt, which have found favor among the legislators and people of Virginia. In 1871, the State being indebted for a sum greater than it was convenient to pay, a legislative act was passed providing for the issue of new bonds, which were to be exchanged for those then in existence at the rate of two dollars of the new for three of the old. To the new bonds were attached interest coupons, which were made by law receivable for all taxes, debts or demands due the State. Under this act, $20,000,000 of bonds were issued. The following year the Legislature repealed the act and prohibited the receipt of coupons for taxes, debts or demands due the State. One Clark, who was confined in jail for the nonpayment of fines due to the State, tendered coupons at their face value in payment, which were refused. VOL. 17.- No. 15.
A writ of habeas corpus was then moved for, Clark claiming that the tender of coupons was a sufficient tender of the fine, and that, therefore, he was illegally confined. The court sustained this claim, saying 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 received for its face value for all taxes, debts and demands due the State; that fines were demands due the State; that all moneys coming to the State, for taxes, debts, dues or demands, must be payable in coupons. It was claimed on the part of the State authorities, that fines which are, by the Constitution of the State, devoted to the support of public schools, were not to be included in the provisions of the act, but the court held otherwise, saying that the provisions of the Constitution dedicating certain revenues to the public schools, mean that an amount equal to the amount of such revenues shall be raised and applied to the schools, and that it is the duty of the Legislature to raise revenue sufficient both to pay the interest on the debt and to support the schools, and that it could not be presumed that that body would fail to do its duty. We are glad that the highest court of Virginia has emphatically pronounced against a repudiation of the public debt.
A case of some importance upon the law relating to corporations was decided in the United States District Court for the Northern District of Illinois, on the 8th inst. One Esterly made a claim against the bankrupt estate of one Meeker, which was disputed, and the question was, whether an agreement to pay a bonus to an individual member of a corporation, for a transfer of the charter of the corporation, where the money to be received was not to be paid over for the benefit of the corporation, is valid. The court held that such an agreement is contrary The to public policy, and cannot be enforced. point is a new one, and has not, we think, been passed upon before.
Inter arma silent leges has ceased to be a vital, truthful maxim. Amid wars and rumors of wars the publicists of Great Britain and Europe-the moulders of the opinions and policies that are to be-are steadily agitating and studying the problems of International law that are to ultimate in the "thousand years of peace." Among these none stands higher, has done more or has brought to the discussion a clearer judgment or more practical common sense than Professor Lorimer, Professor of Public Law in the University of Edinburgh, from whom we have a brief but suggestive letter this week. Professor Lorimer stands high in the estimation of his collaborators in this country, and they will be pleased to hear from him again.
A rather unusual scene took place in a Philadelphia Criminal Court on the 6th inst.: An individual who bears the astonishing name, Blasius Pistorius, and who is by profession a priest, has been twice tried and convicted of murder in the first degree. The first conviction his counsel were able to set aside, but as the facts were such that there was no hope of a verdict of acquittal, they advised him to plead guilty to manslaughter, it being understood that this plea would be accepted. He refused to do this, and was convicted. A motion was thereafter made by his counsel for a new trial, at the argument of which he was present. After one of the counsel had spoken in favor of the motion, the prisoner arose and delivered a long speech, in which he reviewed the evidence, and made severe charges against all the members of the legal profession who had had any thing to do with the case, charging his own counsel with having been in collusion with the district attorney, and stating that he had been convicted in order to please Prince Bismarck. The speech of the prisoner was read from a manuscript, and although quite lengthy, was listened to to the end by the court.
the perfected work of the former commission was not also submitted to this committee. It is beyond question a work of great merit and surely contains many features worth the attention of the legislature. The expenses of the committee are not to exceed $15,000.
The Supplement accompanying this number contains, among others, statutes requiring justices of the peace to give bonds; providing for the consolidation of fire insurance companies; relating to building and loan associations; amending section 22 of chapter 628 of the Laws of 1857, relating to the recovery of penalties for the unlawful sale of intoxicating liquors; amending the law regarding cooperative and industrial unions. Our plan of making the Supplement this year a distinct and complete embodiment of the public and general statutes of the State, with full index, list of titles, etc., meets with very general approval among the pro
Dr. Spear's article on British Extradition Precedents-the first half of which we give this weekexamines, with great acumen, the leading cases cited by Mr. Secretary Fish in his correspondence with Lord Derby, to support his position in the Winslow case, and shows conclusively that they are in nowise authority for the position then taken by our government. Dr. Spear's articles on Extradition are attracting the attention of lawyers and publicists in both this country and Europe, and are receiving deserved commendation.
NOTES OF CASES.
N the case of Killman v. State, 2 Texas Ct. App.
lawfully keeping a disorderly house for the purposes of public prostitution," etc., it was held that a canvas tent, if kept for the purposes mentioned, would come within the meaning of "house" as used in the statute creating the offense. In an offense of this kind the controlling idea is that the structure is a place kept for the purposes of public prostitution, and the material of which the edifice is built is of secondary importance. It has been held that proof of the use of a single room in a tenement will support an indictment for keeping a house for such purposes. Commonwealth v. Hill, 14 Gray, 26; State v. Garrity, 46 N. H. 61. But in respect to the offense of burglary the rule is different. That offense cannot be committed in a tent or booth in a market or fair, even though the owner lodge in it, 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. Bixby, 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 SO far as reported; to retain the good, to reject the bad, to restore so much of the old Code of Procedure as shall seem preferable to the new, and to report to the next session such a Code or Codes as in its judgment should become the law of this State. We regret that the Code of Civil Procedure reported complete in 1849, or in other words,
In Proctor v. Bigelow, decided by the Supreme Court of Michigan at the January, 1878, term, which was an action brought by a widow for dower in lands of her husband, the lands were aliened in 1838, the husband died in 1851, and the action was brought in 1876. There were two questions presented: First, whether plaintiff's marriage was