Gambar halaman

of Mr. Justice Nelson. Stillwell v. Ins. Co., 4 Cent. Law Jour. 463.

The writ of mandamus is granted.

COSTS TAXABLE IN FORECLOSURE CASES. Na motion made in the case of Armstrong v. Murdock, which was heard at the April, 1878, Special Term of the Supreme Court of New York, at Utica, the question arose as to costs to be allowed in the foreclosure of mortgages, where decree is taken in default. The following is taken from the opinion of Noxon, Justice, on deciding the motion in the case:

The question arising in this case is an important one in relation to the items of costs to which the plaintiff is entitled, and which the clerk is authorized to tax, in actions for the foreclosure of mortgages in cases where a decree is taken by default. The law in relation to taxation of costs in such cases is general, and applies alike in all parts of the State. There seems, however, to be a diversity of opinion in the profession as to the items properly taxable. The clerks of the courts in many cases are unable to tax such costs properly, and frequently fall into error without design. The statute itself is plain and simple. Although the statutes which formerly regulated the costs and fees of attorneys and counsel have been repealed, certain items are now allowed to the prevailing party to indemnify him for his expenses in the action, and these allowances are termed costs. In a foreclosure case, where judgment is taken by default, the plaintiff is entitled on application for judgment to........ $25 00 For each defendant served with process not exceeding ten defendants......


For each defendant exceeding ten defendants..
For attending and taking deposition of a wit-
ness, conditionally or to perpetuate his testi-
For drawing interrogatories to answer to a com-
mission for taking testimony........
For attending examination of a party before


1.00 2.00


10 00

10 00

10 00

For appointment of a guardian for an infant de-
fendant (but only one in any one action)......
For procuring an injunction order.......
The plaintiff is also entitled to ten per cent on
the recovery for any amount not exceeding

For any additional amount not exceeding $400
five per cent.........

For any additional amount not exceeding $1,000

two per cent......

20 00

If the action is settled before payment, the same allowances upon the amount paid or secured upon settlement is to be allowed at one-half of the above rates. I am not aware that the clerk is authorized to tax any other items to be included in a bill of costs for the foreclosure of a mortgage (exclusive of disbursements) in cases of default. No trial fee is allowed, and no costs of motion are allowed from the commencement of the proceedings in the action to the entry of the decree or judgment. The services performed are all ex parte, and the costs and allowances above provided are such costs and allowances as the statute has provided to cover the plaintiff's expenses for the services performed. If the services in any case are worth more to the attorney who performs them, he must look to the party who employs him.

10 00 10.00

20 00

20 00

The necessary disbursements in the action are to be adjusted by the clerk, and shall be stated in detail and verified by affidavit. This includes fees allowed by law to sheriffs, clerks, and other officers, witnesses' fees, referees' fees, expenses of publication of summons and notice, compensation of commissioners in taking depositions, expenses paid for affidavits and postage.


LONDON, May 16, 1878.


Tuesday night Sir John Holker, the AttorneyGeneral, introduced in the House of Commons, his "bill for modifying and amending the law relating to indictable offenses," otherwise known as the Criminal Code. The bill has been drawn up mainly by Sir James Stephen. The Attorney-General explained its provisions at some length, dwelling chiefly on the alterations it proposes to make in the law. It abolishes the distinction between felony and misdemeanor, and substitutes for them the term "indictable offense." Accessories before the fact are done away with, and accessories and criminals are dealt with on the same footing. There is a large diminution in the number of maximum punishments, with a provision against accumulated penalties of hard labor. The term "malice" is entirely omitted from the law, constructive murder is done away with, and a more reasonable and intelligible definition of provocation is introduced. The definitions of larceny and theft are greatly simplified by sweeping away the present refinements, and the law of forgery is placed on a more definite and consistent footing. This part of the bill will supersede dozens of text-books, scores of acts of Parliament, and piles of legal decisions.

The second part of the bill refers to procedure, and among the principal alterations under this head are the entire abolition of the subtleties of the law of venue; securities that ample notice shall be given to an accused person when proceedings are taken by indictment in the first instance; and provisions not only for changing the place of trial, but for conducting trials on the model of civil instead of criminal procedure. Right of appeal and power to grant new trials in criminal cases are given under certain conditions, and an improvement in criminal pleading is proposed which will sweep away the present system of verbose and technical indictments.

Though the bill has been launched under government patronage, it is improbable that it will become law this year.

On the motion of Mr. Osborne Morgan, a select committee of the House of Commons has been appointed to inquire what steps ought to be taken for simplifying the title and facilitating the transfer of land. In submitting his motion, Mr. Morgan called attention to the recent frauds of Dimsdale and others, and showed that they would have been prevented by even the rudest form of registration. He pointed out how each measure heretofore adopted with this view had failed from some defect in drafting, and said that as it was necessary to start afresh on entirely new lines, he would recommend a registration of deeds, a cadastral survey for purposes of identification and power of sale for every acre of land in the country, however held, and a registry of sales.

[merged small][merged small][ocr errors][merged small][merged small]


Neglect to fence: contributory negligence: defense in action for animal killed.—In an action against a railroad company for injury occasioned by failure to erect or to maintain fences on the line of its road, as in other actions for negligence, contributory negligence of the plaintiff is a defense. The cases in this court on the subject reviewed. Plaintiff, living about three-fourths of a mile from defendant's track, which he knew to be unfenced, permitted his cow to pasture, in summer (presumably with other cattle), on a large tract of uninclosed grass land, extending from the neighborhood of his residence to the track; and she passed upon the track from said land, and was injured. Held, that upon these facts the question of contributory negligence, being open to doubt and debate, was for the jury. (Lawrence v. Railway Co., 42 Wis. 322, distinguished.) Curry v. Ch. & N. W. Ry. Co.


1. Will signed by mark or by another person.-Under our statute of wills, if the testator's name is, in his presence and by his express direction, signed to the will by another person, or if the testator affixes his mark thereto, that is a sufficient signing. Will of Susan Jenkins.

2. Will supported against testimony of subscribing witness.-A will may be supported against the testimony of some, or even all, of the subscribing witnesses, if their testimony is overborne by other evidence. Where probate of a will was refused merely on the ground that the two attesting witnesses did not concur in testifying to its having been executed and attested in the manner required by the statute, no other fact being found, the judgment is reversed, and the cause remanded for a new trial. Ib.



When not void: execution, lien of.-The bankrupt made a voluntary assignment for the benefit of his creditors. Within thirty days thereafter certain creditors obtained judgment against him and issued an execution to the sheriff, under which a levy was made

To appear in 43 Wisconsin Reports. From O. M. Conover, Esq., State Reporter.

on the property embraced in the assignment. Bankruptcy proceedings were instituted a few days thereafter and an assignee appointed, who subsequently obtained possession of the property. On motion by the sheriff to have the execution declared a lien on the property, on the ground that, because of the nonfiling of the inventory required by the statute within thirty days, the assignment was void. Held, that under the New York Insolvent Act of 1877 (chap. 465), the failure to file the inventory does not render the assignment void ab initio; and that at the time the execution was issued the bankrupt had no leviable interest in the property to which it could attach. U. S. Dist. Ct., S. D. New York. In re Croughwell, 17 Nat. Baukr. Reg. 337.


When order cannot be enforced by imprisonment: attachment.-Where an order is in effect a final judgment for the payment of money, whether the proceeding in which it is made is of equitable or legal cognizance, it cannot be enforced by imprisonment upon the theory of a contempt. The Atlantic Mutual Life Insurance Company was adjudicated bankrupt upon the petition of one of its officers. The adjudication was subsequently set aside and the proceedings vacated. Upon application of the marshal for an order requiring the petitioner to pay the marshal's fees for serving the notices, and that such order be enforced by attachment. held, that the court had no power to graut an attachment in such a case; that the marshal had an adequate remedy by action, to which he must resort. U. S. Dist. Ct., N. D. New York. In re Atlantic Mut. Life Ins. Co., 17 Nat. Bankr. Reg. 368.


1. Debtor failing to give information.-A merchant is under obligation to his creditors to exhibit a statement of his accounts when demanded, and if he fails to do so he cannot complain of proceedings in bankruptcy commenced against him without the requisite number of creditors joining in the petition, provided a sufficient number join before the trial. U. S. Dist. Ct., S. D. Mississippi. Perin & Gaff Manuf. Co. v. Peale, 17 Nat. Bankr. Reg. 377.

2. Jurisdiction: what petition should contain.-The petition should contain an averment that the petitioners believe that they constitute one-fourth in number of the creditors, and that the amount due them constitutes one-third of the unsecured provable debts; it is not required that they should know such to be the fact. Ib.

3. Negotiable paper: what is.-An agreement, on the maturity of a note, given in the course of commercial business, that it may lay over for that day, is only a forbearance to sue, and does not destroy the character of the note as commercial paper. Its non-payment is a suspension and non-resumption of payment, and when continued for forty days constitutes an act of bankruptcy. Ib.


When distinct fees not allowable: marshal's fees.The order to show cause and the copy of the involuntary petition constitute but one writ or process, and the marshal is not authorized to charge a distinct fee for the service of each. When the marshal makes a charge for personal attention in taking care of the

bankrupt property, he must show by his oath that such services were actually rendered, and the necessity for them. He is not entitled to compensation of one dollar per hour for the services of persons employed to assist him in making an inventory. When he makes a charge for time necessarily employed in making an inventory he must support it by his oath as to the fact of the service and the necessity for it. U. S. Dist. Ct., Oregon. In re Hellmar, 17 Nat. Bankr. Reg. 362.


1. The required number and amount joining in petition gives.-Where, upon the return of the order to show cause or upon the adjourned day, the petitioning creditors fail to appear or to proceed, any other creditor to the required amount may intervene and pray an adjudication upon the original petition. Such intervening creditor or creditors need not constitute one-fourth in number and one-third in value of all the creditors. U. S. Dist. Ct., California. In re Sheffer, 17 Nat. Bankr. Reg. 369.

2. Dismissal of proceedings.-The dismissal of the proceedings, in invitum, is regulated by the provisions of the 41st section of the act (R. S., § 5026). Permission to withdraw will be withheld whenever the object and policy of the act would otherwise be defeated. Where a motion to dismiss has been denied and the petitioning creditors decline or omit to proceed, any other creditor to the required amount may continue the proceeeding. Ib.


1. When adjudication against void: dissolution.-An adjudication against a firm, obtained by one member thereof on his voluntary petition, without giving notice to his copartner, as required by rule 18, is void. A partnership dissolved by the death of one of its members cannot be treated as still subsisting so as to be subject to the provisions of the bankrupt laws; but, upon the surviving partner being adjudged bankrupt individually and as such surviving partner, his assignee is entitled to the possession of the firm assets. U. S. Dist. Ct., California. In re Temple, 17 Nat. Bankr. Reg. 345.

2. General assignment.-A general assignment made in fraud of the Bankrupt Act may be set aside if proceedings are commenced within six months from its date. Ib.


Of goods: agreement as to title: resale: fraud: presumption.-Where a sale of goods is made on condition that the title of the vendor is not to pass until the purchase-money shall be paid, and the goods are delivered to the vendee, held, that such a stipulation is valid; and, if all taint of fraud is disproved, a subsale of the goods by the vendee, before payment in full to the vendor, will not affect the title of the original vendor. The possession of goods does not of itself carry along with it the property in them, nor of itself identify the real owner of them. In Virginia the possession of the fixtures and outfit of a tobacco manufactory does not create the presumption that the title to them is in the person using them. U. S. Dist. Ct., E. D. Virginia. In re Binford, 17 Nat. Bankr. Reg. 353.



1. Act impairing obligation of contract: statutory construction: privilege of manufacturing malt liquor: prohibitory liquor law. -A statute of Massachusetts passed in 1809 providing for the chartering of manufacturing corporations contained this: "Provided always that the Legislature may from time to time, upon due notice to any corporation, make further provisions and regulations for the management of the business of the corporation and for the government thereof, or wholly repeal any act or part thereof establishing any corporation, as shall be deemed expedient." In 1828 the Boston Beer Company was incorporated "for the purpose of manufacturing malt liquors in all their varieties in the city of Boston," and the act of incorporation which was passed by the Legislature of Massachusetts provided that said company "for that purpose shall have all the powers and privileges and be subject to all the duties and requirements contained in" the act of 1809 mentioned. In 1829 the act of 1809 was repealed with this provision: "But this repeal shall not affect the existing rights of any person or the existing or future liabilities of any corporation, or any members of any corporation now established, until such corporation shall have adopted this act and complied with the provisions herein contained." Held, that the repeal of the act of 1809 by the act of 1829 was not a revocation or surrender by the State of Massachusetts of the reserved power to repeal the charters of corporations, and the passage of an act forbidding the manufacture or sale of malt liquors was not an act impairing an obligation of a contract with the company mentioned and was not in violation of the Federal Constitution. Judgment of Superior Court of Massachusetts affirmed. Boston Beer Co., plaintiff in error, v. Commonwealth of Massachusetts. Opinion by Bradley, J.

2. Police power would authorize act to forbid sale of malt liquor.-Held, also, that even if a right to manufacture malt liquor had been granted by charter without the reservation of a right of repeal, it was within the police power of the State to require such manufacture to cease. Ib.


Issue of notes for less than one dollar: statutory construction.-The act of Congress of July 17, 1872, section 2 (12 Stat. 592; Rev. Stat. 711, § 3583), declares that "no private corporation, banking association, firm or individual shall make, issue, circulate or pay out any note, check, memorandum, token or other obligation for a less sum than one dollar intended to circulate as money, or to be received or used in lieu of lawful money of United States," and provided a penalty for a violation of the act. Defendant was indicted for circulating an instrument reading as follows: "The Bangor Furnace Company will pay the bearer on demand fifty cents, in goods at their store in Bangor, Mich." Held, that the instrument not being payable in lawful money the issue and circulation thereof was not in violation of the act in question. Demurrer on certificate of division from U. S. Circ. Ct., W. D. Michigan, sustained. United States v. Van Auken. Opinion by Swayne, J.


1. Patent of, passes title free from control of government.-A patent for any part of the public lands, when issued by the land department acting within the scope of its authority, carries with it, when delivered and accepted by the grantee, the legal title to the land, and with it passes all control of the executive department of the government over the title. Decree of Supreme Court of Illinois reversed. Moore, plaintiff in error, v. Robbins. Opinion by Miller, J.

2. Patent improperly granted can be canceled only by court.-If any lawful reason exists why the patent should be canceled or rescinded, the appropriate and only remedy is by bill in chancery, in a court of competent jurisdiction, brought by the government, and there exists no power in the Secretary of the Interior or any other officer of the government to reconsider the facts on which the patent issued, and to recall or rescind it, or to issue another for the same land. Ib.

3. Fraud or mistake ground for relief.-But when fraud or mistake or misconstruction of the law of the case exists, the United States, or any contesting claimant for the land, may have appropriate relief in a court of equity. Ib.

4. Pre-emption: pre-emptor must prove settlement.— Under the 14th section of the act of 1841 (5 Stat. 457), and the act of March 3, 1853 (10 Stat. 744), no pre-emption was of any avail against a purchaser of the land at the public land sales, unless the pre-emptor had proved up his settlement and paid for the land before the commencement of the public sales as ordered by the President's proclamation. Ib.

5. Decision of Secretary of Interior: effect of.-The decisionof the Secretary of the Interior in favor of a preemption claimant under such circumstances against a purchaser at the public sales, held to be erroneous as a misconception of the law, and the equitable title decreed to belong to the latter. Ib.


1. Contract not to be performed within a year.-To make a parol contract void within the statute of frauds, it must appear affirmatively that it was not to be performed within a year. If performance by defendant could have been required by plaintiff within a year the contract is valid. McPherson v. Cox, 96 U. S. Judgment of U. S. Circ. Ct., N. D. Illinois, affirmed. Walker, plaintiff in error, v. Johnson. Opinion by Miller, J.

2. Subsequent verbal agreement.-When a contract for the delivery of stone exists only in parol, a subsequent verbal agreement varying the manner of delivery is binding. Ib.

3. Trial: comments of judge on charge to jury.The comments of the judge in his charge to the jury as to the circumstances under which the defendant might be entitled to damages against plaintiff, cannot be a ground of error when there was no such issue, and when the remarks could not have prejudiced the defendant. Ib.

4. What instructions court not bound to give.-The court is not bound at the request of counsel to give as instructions philosophical remarks copied from textbooks, however wise they may be in the abstract, or however high the source from which they come. Ib.



For money paid on an erroneous judgment: demand. -The surrogate in a proceeding before him in which plaintiff and defendants were parties decided that the defendants were entitled to certain commissions. While the decision was in full force plaintiff paid defendants the commissions. Afterward the decision was reversed as being erroneous. Held, that plaintiff was entitled to recover back the commissions paid, but a demand was necessary before 'bringing suit. Judgment below affirmed. Scholey v. Halsey. Opinion by Andrews, J.

[Decided February 12, 1878.1


1. Liability of stockholder: stockholder also creditor, when not liable.-An action by a creditor of an incorporated company against a stockholder under section 10, Laws 1848, chapter 40, cannot be maintained when the stockholder is also a creditor to an amount equal to his stock. The debt due the stockholder is a defense to this form of action in the nature of an equitable offset. Accordingly when defendant, who was a stockholder, had purchased notes against the company and advanced moneys for its use to an amount in excess of his stock, held, that he was not liable in an action brought against him individually by a creditor of the company. Judgment below affirmed. Mathes v. Neideg. Opinion by Church, C. J. [Decided January 15, 1878.]


1. Practice: what writ of error reaches.-A writ of error reaches only errors in the record, and proceedings subsequent to judgment forming no part of the record are not brought before the court by it. Conviction affirmed. People v. Carey, plaintiff in error. Opinion by Earl, J.

2. Assault with dangerous weapon: what sufficient indictment: duplicity.-An indictment for an assault with a dangerous weapon, alleged that the instrument was "sharp, dangerous;" that the assault was made with intent "to do bodily harm," and that it was "without justifiable or excusable cause." Held, that the indictment was under Laws 1854, chapter 74, and not under Laws 1866, chapter 716, and was not open to the charge of duplicity, as charging two distinct offenses. Ib.

3. Witness: prisoner in his own behalf: questions tending to impair credit.—When a prisoner offers himself as a witness in his own behalf he is subject to the same rules upon cross-examination as any other witness. He may be asked questions disclosing his past life and impairing his credibility; and questions which may tend to show that he has before been guilty of the same crime as that for which he is on trial, are not incompetent. Ib. [Decided February 5, 1878.]

4. Joinder of several distinct misdemeanors in one indictment. The joinder of several distinct misdemeanors in the same indictment is not a cause for the reversal of the judgment on a writ of error when the sentence is single and is appropriate to either of the counts upon which the conviction was had. Consequently where a prisoner was convicted on an indictment charging him with an offense punishable by fine,

[ocr errors]

and also with one punishable by imprisonment, held, that there was no legal objection to a sentence of fine and imprisonment. Conviction affirmed. Polinsky, plaintiff in error, v. People. Opinion by Andrews, J. 5. Selling adulterated milk: city ordinance.-An ordinance of the board of health of the city of New York provides against bringing adulterated milk into the city of New York for sale. Held, not to cover the same ground as Laws 1862, chap. 467, sec. 1 (amended by Laws 1864, chap. 544), that statute relating only to selling or exposing impure, etc., milk for sale. Ib.

6. Authority of board of health of New York to pass ordinance as to adulterated milk.-Held, also, that Laws 1873, chap. 335, conferred upon the board of health of New York power to make ordinances in relation to the adulteration of milk, in addition to the general law in relation to that subject, and an ordinance passed by them making certain acts misdemeanors held valid. Ib.

7. Constitutional law: power of Legislature. — Held, also, that it was within the power of the Legislature to confer authority on the board of health to pass the ordinance.

[Decided March 19, 1878. Reported below, 11 Hun, 390.]


1. When parol,admissible to explain writing.--Defendant sent to the cashier of a bank a letter reading thus: "Please discount for Mr. Cummer to the extent of four thousand dollars. He will give you customers' paper as collateral. You can also consider me responsible to the bank for the same." Held, that parol evidence of surrounding circumstances was admissible to show whether this was intended to be a single credit for $4,000, or a continuing guaranty to that extent. Judgment below affirmed. White's Bank of Buffalo v. Myles. Opinion by Earl, J.

2. Construction of instrument of guaranty: continuing guaranty.-In this case Cummer was carrying on a continuous business in Buffalo, and doing his banking business with plaintiff. Defendant was his father-inlaw, residing in Canada, and was desirous to aid him. Cummer had already a large line of discount, but needed more to enable him to continue business. Held, that under the circumstances the letter was intended as a continuing guaranty. Ib. [Decided April 16, 1878.]


A fire insurance policy provided that it should become void "if without the written consent of the company first had and obtained" the insured property "shall be sold or conveyed, or the interest of the parties therein be changed in any manner, whether by act of the parties or by operation of law, or the property shall become incumbered," etc. Held, that the change of title caused by the death of the party insured would avoid the policy. (Wyman v. Wyman, 26 N. Y. 253; Burbank v. Rockingham Ins. Co., 24 N. H. 550, distinguished.) Order below affirmed. Sherwood v. Agricultural Ins. Co. Opinion by Rapallo, J. [Decided May 21, 1878.]


State courts have, of action by assignee in bankruptcy. -State courts have concurrent jurisdiction with the Federal courts in cases arising under the Constitution, laws or treaties of the United States, unless excluded

by express provision or from the nature of the particular case. A State court has jurisdiction of an action brought by an assignee in bankruptcy upon a draft forming part of the assets of the bankrupt, and the authority of the bankrupt court is not necessary to entitle the assignee to sue. Judgment below affirmed. Kidder v. Horribin. Opinion by Andrews, J. [Decided January 15, 1878.]


Rights of lessee dependent on performance of covenant on his part: estoppel and waiver.-By a lease, wherein the lessee covenanted to pay taxes and do other acts, it was provided that at the end of the term the lessee should be entitled to a renewal of the lease, or if that should not be given the lessor should pay the value of the building erected on the premises by lessee to be determined by appraisers. The appraisers were to be appointed before the termination of the lease, and in default of one party appointing his appraiser, after a certain notice, the other party might select his, who could select the other one. Held, that in order to entitle the lessee to maintain an action against the lessor for the value of the building, after the termination of the lease, it was necessary for him to perform his covenants under the lease, and a failure to pay the taxes for one year would preclude a recovery. Held, also, that the appointment of an appraiser, by the lessor, after notice by the lessee, but in ignorance that the lessee had not performed his covenant, and the appraisal of the value of the building was not a waiver of the rights of lessor and would not estop him from setting up as a defense in such action the failure of the lessee to perform his covenants. Judgment below reversed. People's Bank of New York v. Mitchell. Opinion by Miller, J.

[Decided April 23, 1878.]


1. Construction of charter of Cohoes: declaration of result essential to complete election.-By section 9 of the charter of Cohoes, it is provided that the inspectors of election of each ward shall, at each city election, canvass the votes given and make a statement determining and certifying the number of votes cast for each person for city and ward officers, and for school commissioners, and that such statement shall be delivered to the city clerk. By section 10 the city clerk is directed to deliver the statement to the common council, which shall, at the next meeting, which "shall be on the Tuesday next after the annual election," "upon such statements and certificates, declare and determine what persons have been elected to "the respective offices." It is also provided that those having the greatest number of votes for the offices to be filled by the electors of the several election districts or wards" shall be declared duly elected." Held, that the declaration and certificate of the common council was indispensable to the election and qualification of ward as well as city officers, and that officers who had received the greatest number of votes could not act officially until such declaration. Judgment below reversed. People ex rel. Corliss v. North. Opinion by Rapallo, J.

2. Provision applies to election of aldermen.-Held, also, that the provisions of section 10 are applicable to the office of alderman, and that under a provision in the charter that the old officers should hold over until their successors were qualified, acts by a common

« SebelumnyaLanjutkan »