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which prevails, from the following circumstance. It finds its wonted expression. “You don't know how it is customary for the sophomore class to take on itself delights me to hear of D.’s recovery, and how we want the business of getting the catalogue of officers and to see it under his own hand and seal.” students annually printed. It was, as usual, done by This David, who died about five years ago at the my class this fall, with the introduction, if I may so ex- age of seventy-six, was, I need scarcely add, a man of press it, 'Catalogue of the Officers and Students of Dart- | much prominence and great usefulness. He possessed mouth College.' The few democrats and fellows of the in no small degree, many of the extraordinary natural baser sort' amongst us immediately employed our gifts that distinguished his more celebrated brother, Hanover democratic printer to strike off an edition' and, though he had had less favorable opportunities in this form : Catalogue of the Officers and Students of for early culture, he nobly justifies the bright hopes Dartmouth University, together with the Trustees (old that clustered about his promising youth by the solid and new) and Overseers of the same !' So much for af- and lasting service which he rendered, through all his fairs of college ..." have been exceedingly troubled manhood, in the interests of Education, Law and Rewith headache and my eyes have become somewhat ligion. weak. I, therefore, look with impatience for the close Among several scraps which I have in Mr. Choate's of the term. I would, however, observe, that, if my handwriting, is a letter which he wrote from Washhealth is continued, I shall employ the coming vacationington, when he was no longer a law student there, in diligent and profitable study, and excepting the Lon- but, about twelve years later, Feb. 4, 1833, when he was donderry visit, which I heartily dread, I shall shut my- a member of Congress. A short extract affords us a self up. I have secured Smith's Botany and a Tele- glimpse of what some of the national representatives maque' of Dr. Mussey, to which my attention will this were thinking about and doing : "Things stand pretty winter be devoted."

dubiously yet. However, the Union is well enough. The last of these letters which I have in hand was The Tariff we may save by a bargain." written to Mr. Choate's sister Hannah, while he was The last law case which Mr. Choate was ever engaged studying law under Mr. Wirt at Washington, and is in has been referred to in a previous communication. dated Sept. 29, 1821. It begins thus: “We sent you A brief, written at the time with his own hand, is also such a storm of letters two or three weeks since, that in my possession, and is a curiosity in its way. Its somehow we hardly thought to be turned off chirography makes quite credible the story,which, howwith but one in answer, however full and excellent it ever, comes to me from very good authority, that a might be, and so have waited and waited, unreasonably now deceased member of the Middlesex bar once reyou will say, in daily expectation of another or two. ceived from him a letter respecting a suit in which the But I have taken hold at last and a letter you shall two were associated with each other, and being unable have — with nothing in it though, but very much love to read it or to find any one else who could do so, he took to you all, very much joy at David's so gratifying re- it back to the writer, who was actually unable to decovery and the word 'all's well.' " A little further on cipher its strange characters himself. And were the he writes, "M. and E. went to Mount Vernon yester- latter to reappear amongst us, after this lapse of years, day, and have brought back leaves, acorns, etc., plucked I fear he would be equally unsuccessful in making out from the grave that hallows that place and makes it a the brief I have mentioned. spot so dear to the heart of every American. Sister S. I have often heard Massachusetts lawyers speak of and I hope to go down next Saturday.” Besides his the strong prejudice which Mr. Choate soon encountregular study of the law, he tells us that he is “en-ered from the older and more conspicuous members of gaged every other day in the week, three hours in a the profession after his advent at the Boston bar. The school of young ladies as a portant - all for cash: of way he bad of gaining victories by his brilliant style, which the Dr. does not manage to have any very great his captivating eloquence, his wonderful power over abundance, or for which I do not choose to ask him.'' juries, and his new and novel methods of procedure, He continues, “I have some trifling debts which it is was deemed an impertinent departure from the longmy determination you at home never shall pay, and

established rule and routine. Few could understand seriously as I regret the inroad on my hours of study, him and more than a few persistently disparaged his I cheerfully resign from 11 to 2. You can hardly im- talents and attainments, ridiculed his efforts and pecuagine how much I long to go back to you, and look liarities, and sought to annoy and perplex him in court around once more on our family circle, and on the by unusual rudeness. On one occasion when he had hills, dales and waters of our much loved birth-place. borne patiently many an uufriendly interruption Sometimes I almost determine to return this fall, but and bitter taunt, some one who was near asked him then what shall I do for money and how shall I dispose why he endured such treatment and why he did not of my professional studies? So on the whole I must retort. “I shall retort,” he said, “ by getting the stand by, I think, till June, 1822. In the meantime, as case." And he got it. soon at least as the session begins, we must contrive Others, who were fitted for the task, have already, to hear from each other oftener, and when D., who I perhaps, given us a satisfactory analysis of Mr. Choate's hope is nearly well enough already, has so recovered as mind and character. It is not for me to attempt it and to write, once a week must be the word. I like this city my letter is even now too long. But I cannot forbear very little, and hope and believe I never shall make up adding a word about what has always seemed to me my mind to stay here for life. That question, as to one of the very finest of his traits. During my sumthe place of my future residence, begins at last to be a mer sojourn at Beverly, I was a near neighbor of the very serious one, and I think of it daily and nightly. venerable Dr. Boyden, whose testimony, as that of Yet there are more than two years to me yet before I the only surviving college classmate of the great lawyer, need decide, and all I ought to wish to do is to improve you gave to the public in connection with your last arthem to the very utmost." Again, as often in the course ticle. In several interviews I had with him, he dwelt of these letters, his fond affection for his brother David | much upon the many rare virtues and excellencies of

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his distinguished and life-long friend, and touched par system of legal procedure, and for the more speedy ad-
ticularly upon his generous appreciation of whatever ministration of justice. There is no use of scratching
was good in others, and his absolute freedom from all the skiu where incision and surgery are needed."
envy and jealousy. Rufus Choate always wished and
aimed to excel, but he was glad to see his companions
and competitors excel, also, and was ever ready to help | EXAMINATION OF ADVERSE PARTIES UNDER
them in their struggles and toils. He coveted no pre-

THE NEW CODE, eminence that must needs be purchased at the cost of

NEW YORK SUPREME COURT, JANUARY 10, 1878. those who were striving with him for fame and glory. He had no habit of disparaging his associates or rivals

PEOPLE V. MUTUAL GAS-LIGHT CO. OF BROOKLYN. at school, at the bar, in legislative hall or in the political arena. I can think of only one instance by way of A director of a corporation may be examined under the pro

visions of sections 870 and 873 of the Code of Civil Proced. exception. When Charles Francis Adams, during the

ure, relating to the taking of the deposition of a party early years of the Free Soil movement, was pointing the to an action. people to the one straight path of duty and safety, Mr.

OTION at Special Term of Supreme Court, Second Choate, whose honest views and sympathies and ac

District, to vacate order to take deposition of a tions took a very different direction, indulged in the

director of defendant corporation. The facts sufficiently sarcasm of referring to John Quincy Adams as the

appear in the opinion. "last of the Adamses." He did not live to see, to the

GILBERT, J. An order having been made at Special full extent, how unfortunate was the word. For when Term that Alexander Studwell, a director of the dethe awful conflict came which no oratorical gifts or skill fendant corporation, be examined and his deposition ful compromises could avert, and the peerless magi- taken pursuant to sections 870 and 873 of the Code. Mr. cian of the courts and of popular assemblies bad, bim

Studwell now moves to vacate the order on the ground self, forever quit the stage, it was that same son of the

that it was not authorized by the sections referred to. “old man eloquent,” who, through long and perilous The ground of the objection is that Mr. Studwell is not years, rendered his country a service abroad which

a party to the action, and his examination would not history will claim as scarcely inferior, in measure and

be an exercise of the right given to have the deposition value, to any that was performed by the wisest and best of a party taken. The objection, if allowable, must of our statesmen at home.

necessarily frustrate the statute in every case where a Yours, very truly,

corporation is the party agaiust which the examination A. P. PUTNAM.

is sought. And such construction was given by this

court in Goodyear v. Phenix Rubber Co., 48 Barb. 5:22, LAW REFORM IN CONNECTICUT.

to a similar provision of the former Code. The con. HE land of steady habits” gives some promise of

trary was held in Carr v. Gt. Wpst. Ins. Co., 3 Daly, 160. better things in legal procedure than it has yet See, also, 1 Robt. 610; 22 N. Y. 353. known. The governor of Connecticut, in his recent

With this conflict of direct adjudication upon the message, spoke as follows of a reformation of legal point before me, I must yield to my own opinion upon procedure.

the subject. I think it is the duty of courts to enforce “I beg also in this connection, and as tending in the

statutes if a way for doing so can be devised, and that same direction, to call your attention to our system of

they have no power in any case to frustrate a statute legal procedure. I think it difficult for the human

if it be practicable to carry it into effect. mind to invent a more artificial plan of remedies than

The right given by section 870 of the Code to take the those provided by the common law. They are

deposition of a party to an action is an absolute one. 2 founded sometimes on absurd fiction, and often on

Wait's Pr. 710. No exception of a corporation bas been puzzling and metaphysical subtleties, which are not

made. In respect to this right to examine, therefore, seldom the despair of both the bar and the bench, and

a corporation stands on the same footing with a natuin the midst of which justice often miscarries.

ral person.

Being a party, the adverse party has a “The system has some merits, but it serves too often right to take its depositiou. The only difficulty in only to cudgel the brains of lawyers and entangle the giving effect to such right arises from the incapacity of rights of parties.

a corporation to make answers uuder oath. The same “Our plan of judicial proceedings is borrowed from difficulty existed iu the administration of the former · the English law. It has been freed from time to time practice of courts of equity, in cases of discovery, by the decisions of courts and by occasional legislation, against corporations. As a corporation could not aufrom some of its clogs and trammels, but it is still swer upon oath but only under its common seal, the cumbersome, inconvenient, and fruitful of delay land plaintiff was permitted to make iudividual members expense. In England they have at last, under the of the corporation parties defendant, although they lead of the best lawyers of the kingdom, cut up had no pecuniary interest in the coutroversy, for the the system root and branch, and reduced the multi- sole purpose of compelling a discovery upon oath. This plied and complicated remedies of law aud equity to practice was a relaxation of a well-established general the most direct and simple forms.

rule that a mere witness cannot be made defendant, “The same work has been done in part, but less boldly, and it was permitted because otherwise there would in several of our sister States. This work, if attempted be a failure of justice. Ang. & Am. on Corp., 10th ed., here, must be done with a wise moderation and with s$ 674-676; 1 Danl. Ch. Pr., 4th Am. ed., 144 et seq., and the utmost care and painstaking. It requires the best cases cited; Vermilyea v. Fulton Bank, 1 Pai. 37; Maslegal ability of the State. I recommend that a com- ters v. Bessie Galena Lead Mining Co., 2 Sandf. Ch. mission be raised to take this matter into considera- 301; McIntyre v. Union College, 6 Pai. 2:29; Many v. tion, and if they shall think it expedient, to report to Beekman Iron Co., 9 id. 188. Bills of discovery have the next assembly a bill for the simplification of our been abolished, but the substance of that remedy has

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been preserved by section 870 of the Code. To make the rection of the appellants. The business of the relatter efficacious in the case of a corporation defendant, spondent at Kiukiang was practically carried on by it needs only the adoption of a means of compelling the one W. H. Shaw, who was employed and paid by the officers of a corporation to submit to an examination respondent, and who signed the name of Francis & analogous to that resorted to by courts of equity, to Co., per procuration. which refereuce has been made, namely, the making of The respondent was remunerated by a commission them parties to the proceeding for a discovery. That on the freight and passage moneys earned through his is done by inserting in the order for an examination agency. the name of an officer as trustee of the corporation, and It was part of the business of the appellants (on requiring bim to attend and be examined.

their own account, and not as agents of the company) Considering the facilities afforded by general laws to make advances through the respondent and other for the formation of corporations, their capacity for local agents, at the various ports on the river, to evil, and the numerous instances of maladministration Chinese merchants upon goods intended for shipment, of the affairs thereof,the right given by section 870 of the or in the course of shipment. Such advances were Code must be regarded as a valuable safeguard against

from time to time made through the respondent at frauds and breaches of trust, which should be pre- Kiukiang; they were made either with sycee remitted served and enforced by every reasonable and fair in- for the purpose by the appellants, or with the proceeds tendment.

of drafts drawn in respect of them by the respondent The motion is denied, and Mr. Studwell is required to on the appellants. The respondent's firm rendered appear on the 12th instant at 10 A. M. and be examined. accounts to the appellants monthly, or, if required,

oftener. The respondent derived benefit from the

advances, because, unless he had facilities for making LIABILITY OF PRINCIPAL FOR FRAUDULENT

advances, the native shippers would, in many cases, MISREPRESENTATION OF AGENT.

have gone to rival companies, and so the respondent

would have lost his commission. JUDICIAL COMMITTEE OF PRIVY COUNCIL, NOVEM. In one of these accounts rendered by Shaw it was BER 23, 1877.

represented by entries that respondent had advanced money on goods which appellants were entitled to as

sume were under the control of the company menSWIRE et al., appellants, v. FRANCIS.

tioned. In fact, no such advances had been made, and S., who was agent of the respondent, and practically carried

the entries stating that they bad been were false. At on his business, sent to the appellants, in the ordinary

the time this account was rendered, Shaw, in the name course of business, an account showing that certain ad

of respondent's firm, drew for the balance shown by ances had been made on goods on their account, and drew a bill on them for the amount, which was duly

the account, and the draft was duly honored by appelhonored. The advances had not been made, and S, had

lants. Subsequently a similar account was rendered, appropriated the amount to his own use.

containing similar false entries, and a draft was made, In an action brought hy the appellants against the respond- and the sums said to have been advanced by the reent to recover the amount of the bill:

spondent to native merchants had in fact never been Held (reversing the judginent of the court below), that the advanced, and Shaw appropriated them to his own case fell within the principles laid down in Barwick v.

use, out of moneys of the respondent under his conThe English Joint Stock Bank (16 L, T. Rep. (N. S.) 461 ; L.

trol as agent and manager of respondent. Rep., 2 Ex. 259), and Mackay v. The Commercial Bank of

The court below was of opinion that the appellants New Brunswick (30 L. T. Rep. [N. S.) 180; L. Rep., 5 P. C. 412), and that the appellants were entitied to recover.

were not entitled to recover the said sum of taels

6073.30, and dismissed the claim of the appellants for THIS was an appeal from a decree of C. W. Goodwin,

the said sum and interest, and directed the appellants Esq., acting chief judge of Her Majesty's Supreme

to pay to the respondent the taxed costs of suit. Court for China and Japan, at Shanghai, made on the

From this judgment the present appeal was brought. 15th Feb., 1877, on a special case. The questions stated

The respondent did not appear, and the appeal was for the opinion of the court were, whether the respond

consequently heard ex parte. ent was liable to the appellants in the sums of taels 6073.30 and taels 57.18 respectively, together with in

G. Bruce (Benjamin, Q. C., with him), for appellants, terest from the 2d April, 1876. The court decreed that

cited Swist v. Jewsbury, 30 L. T. Rep. (N. S.) 31; L. the respondent should pay to the appellants the sum

Rep., 9 Q. B. 301; Re United Service Company, 23 L. of taels 57.18, and that the claim of the appellants for

T. Rep. (N. S.) 520; L. Rep., 6 Ch. 212; Western Bank the sum of taels 6073.30 and interest should be dis

of Scotland v. Addie, L. Rep., 1 H. of L. Sc. 145; Bar

wick v. English Joint Stock Bank, 16 L. T. Rep. (N. missed, and that the appellants should pay to the

S.) 461; L. Rep., 2 Ex. 259; Mackay v. Commercial respondent the costs of suit. This appeal was entered

Bank of New Brunswick, 30 L. T. Rep. (N. S.) 180; L. against so much of the said decree as relates to the claim for the sum of taels 6073.30 and interest, and to

Rep., 5 P. (. 394; Udell V. Atherton, 4 L. T. Rep.

(N. S.) 797 ; 7 H. & N. 172; Makersy v. Ramsay, 9 Cl. the costs of suit.

& F. 818. It appeared from the special case that the appellants acted as general agents in China of the China Naviga- Their Lordships' judgment was delivered by tion Company (Limited), an English Joint Stock Com- Sir ROBERT COLLIER, who, after going through the pany owning a line of steamers running between ports facts of the case as set out above, continued: Their on the River Yangtsze. The respondent, who resided Lordships are of opinion that it was within the and carried on business at Shanghai, also carried on scope of the authority of Mr. Shaw, as that expresbusiness under the style of Francis & Co., at Kiuki- sion has been defined in many cases, to make out the ang, one of the ports on the said river, and he acted account which is spoken of, to insert in it the advances as agent of the company at Kiukiang, under the di- made on goods on account of the plaintiffs; and to

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fixed and calculated, in the manner provided by the special case, and that the record be remanded to the Supreme Court at Shanghai for this purpose. The appellants will have the costs of the appeal.

STATE INTERFERENCE WITH PATENT

RIGHTS.

draw the bill for the purpose of covering the balance of the account. All this was in the ordinary course of business. It is of course not to be assumed that he was authorized to commit a fraud by making the false entry of the advances of 5800 taels; but it would have been within the scope of his authority to make an advance of that kind, and to enter it in the account when made, and the case, therefore, in their Lordships' opinion, falls within the principle which is well stated by Willes, J., in the case of Barwick v. The English Joint Stock Bank (16 L. T. Rep. [N. S ] 461; L. Rep., 2 Ex. 259), where he observes: "In all these cases it may be said, as it was said here, that the master had not authorized the act. It is true he had not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be

UNITED STATES CIRCUIT COURT FOR THE SOUTH

ERN DISTRICT OF OHIO.

WOOLEN V. BANKER.
A State statute requiring notes given for patent rights or

patented inventions to bear the words "given for a patent
right” is contrary to the Constitution of the United
States and void.
CTION upon a promissory note.-Upon the trial in

answerable for the manner in which that agent has | A The District Courth before steing po, mande trijuriya

conducted himself in doing the business which it was the statute mentioned in the following opinion was the act of his master to place him in." This doctrine

held unconstitutional, and a verdict was rendered for has been also laid down by this board in the case of the plaintiff. A motion for a new trial was heard by Mackay v. The Commercial Bank of New Brunswick Mr. Justice Swayne. The opinion is as follows: (L. Rep., 5 P. C. 394; 30 L. T. Rep. (N. S.] 180). Their

SWAYNE, J. The plaintiff brought his action upou a Lordships are disposed to infer that Shaw, instead of

promissory note of $500, containing the words, “ given advancing the 5800 taels, which he pretended had for a patent right.” The defendant set up failure of been advanced to merchants upon cargoes to be ship- consideration for that the patent right was veid for ped, in reality appropriated so much of his master's want of novelty, and of no value, relying upon the money to his own use, and having so misappropriated statute of Ohio, passed May 4, 1869, S 66, 0. L. 93, which it, drew a bill in the name of his master and in the provides that “any note the consideration for which course of business upon the plaintiffs for replacing shall consist in whole or in part of the right to make, that money, and that the plaintiffs have repaid to Mr. use or vend, any patent invention or inventions claimed Francis the money of his own, which had been mis- to be patented, shall have the words "given for a patappropriated by his agent. But even if it be assumed, ent right' prominently and legibly written or printed as perhaps it was in the court below, that Shaw appro- on the face of such note above the signature, and such priated only the proceeds of the bill which had been note or instrument in the hands of any purchaser or drawn for the increased balance to the extent of 5800 holder shall be subject to the same defenses as in the taels, still it appears to their Lordships that no sub- hands of the original owner or holder." stantial difference would arise in the legal bearings of The reply sets up that the plaintiff's intestate purthe case. The bill was drawn by him in pursuance of chased said note for value, without notice, before a general authority which he had to draw on behalf of maturity. Francis & Co., whose sole representative he was in the Upon a trial to a jury, the defendant offered evidence business which Fraucis carried on at Kiukiang; it was to show that when the note fell due, and demand was paid by the defendants to the account of Francis & Co. made, he offered to return the patent right and cance) for a general balance, which was improperly increased the obligation. The court refused to admit the evi. by the amount of 5800 taels. The proceeds of this dence, and defendant's counsel excepted. An excepbill belonged to Francis & Co., and the case comes tion was also taken to the refusal of the court to admit to this, that 5800 taels were paid to Francis & Co., by evidence that the patent was void for want of novelty, the plaintiffs, without any consideration whatever, and and of no value, and also to the charge of the court, that Shaw fraudulently misappropriated that money. because the jury were not instructed that the defendIn either aspect of the case it appears to their Lord- ant was entitled to the same defenses against the ships to fall within the authority of the case which plaintiff, although an innocent purchaser for value behas been referred to, of Barwick v. The English Joint fore maturity, as he would have against the original Stock Bank, as well as within the authority of Mackay payee. v. The Commercial Bank of New Brunswick. Their These exceptions raise the question of the constituLordships have only further to observe that it would tionality of the statute of Ohio above quoted, and how appear to them that the court below was somewhat much soever it might be disagreeable to this court to misled by the assumption that the law concerning the pronounce upon the unconstitutionality of a State relations of bailor and bailee applies to this case. If statute before the Supreme Court of that State has done the question had arisen with respect to an actual so, the merits of this case require such duty of us, and transmission of bullion or coin which had been stolen we cannot shrink from it. by Shaw, the observations of the court would have A construction has been given to the statute in one of been applicable, but it appears to their Lordships that its bearings by the Supreme Court of the State of Ohio this case is governed by other considerations, to which iu The State v. Peck, 25 Ohio St. 29, in which the court they have referred. Under these circumstances their say: “ To coustrue the phrases “patent right, patented Lordships will humbly advise Her Majesty that the invention, and inventions claimed to be patented judgment of the court below be reversed, and that used in the act to mean machines manufactured under judgment be entered for the plaintiffs for 6073.30 taels letters patent by the patentee or his assigns, would (Shanghai currency) in addition to the sum for which give to them not only an unusual, forced and umatuit is at present entered, together with interest to be ral import, but would seriously interfere with aud

as injure the manufacturing interests and commercial debtor does not himself file the petition in bankruptcy prosperity of the State, which cannot be presumed to under such circumstances, and that the creditor was have been intended by the General Assembly in the aware of the insolvency of the debtor, do not avoid passage of the act."

the judgment and execution. (Wilson v. The City That the Constitution of the United States has con- Bank, 17 Wall. 473.) Judgment of Circuit Court, S. D., ferred upon the Congress the power “To promote the New York, reversed. Tenth National Bank of New progress of science and the useful arts, by securing, York, appellants, v. Warren et al. Opinion by Hunt, J. for a limited time, to authors and inventors the exclu

CONSTITUTIONAL LAW. sive right to their respective writings and discoveries" by $ 8, art. 1, is no more certain than that such power

Depriving person of property without due process of

law: origin and history of constitutional provision: has been exercised by the enactment of patent laws,

definition. – An assessment of the real estate of plainand that no State can limit, control, or even exercise the power. Congress has not only regulated the man

tiff in error in the city of New Orleans for draining the ner in which a patent may be obtained, but it has pre

swamps of that city was resisted in the State courts,

and is brought here by writ of error, on the ground scribed the manner in which it may be sold and con

that the proceeding deprives the owner of his propveyed, and has imposed the penalties for the infringement thereof. The national government has, therefore,

erty without due process of law. The origin and hismade a patent right property. The patentee has paid

tory of this provision of the Constitution considered as

found in magna charta and in the fifth and fourteenth the government for the monopoly, and it is bound to protect him and his assignee in the use and enjoyment

amendments to the Constitution of the United States.

The difficulty and the danger of attempting an authorof it. Any interference whatever by any State, that

itative definition of what it is for a State to deprive will impair the right to make, use, or vend any patented

a person of life, liberty, or property, without due proarticle, or the right to assign the patent or any part of it, is forbidden by the highest organic law. The stat

cess of law, within the meaning of the fourteenth

amendment suggested, and the better mode beld to be ute in question is such an interference aud is uncon

to arrive at a sound definition by the annunciation of stitutional.

the principles which govern each case as it arises. We are supported in this opinion by every court that

Judgment of Supreme Court of Louisiana affirmed. has bad occasion to pass directly upon the question.

Davidson, plaintiff in error, v. Administrators of New DAVIS, J., In re Robinson, reported in 2 Bisl. 309,

Orleans. Opinion by Miller, J. pronounced the Indiana law, similar in terms to the

2. What due process of law does not require. - It has Ohio law, clearly unconstitutional.

already been decided in this court that due process of The Supreme Court of Indiana, in Helm v. First National Bank, 43 Ind. 167, held that as the Federal gov

law does not require that the assertion of the rights of

the public against the individual, or the imposition of ernment has continuously, from the adoption of the

burdens upon his property for the public use, should in Constitution down to the present time, legislated on

all cases be done by a resort to the courts of justice. the subject of patents, and as, from the nature and

(Murray v. Hoboken Co., 18 How., and McMillan v. subject of the power, it cannot conveniently be exer

Anderson, at this term.) Ib. cised by the State, it must necessarily be exercised by

3. Tax or assessment imposed by State statute : what the national government exclusively, and adds: “We

is due process of law. - In the present case we hold are of the opinion that the legislature of Indiana pos

that when such a burden or the fixing of a tax or sessed no power to pass the statute under consideration, aud it must, therefore, be held unconstitutional

assessment is by the statute of the State required to be

submitted to a court of justice before it becomes efand void."

fectual, with notice to the owners and the right on And so in Hereth v. Merchants' National Bank, 34 Ind. 380, it was held that a maker of a promissory note

their part to appear and contest the assessment, this is in the hands of an innocent purchaser for value before

due process of law within the meaning of the Consti

tution. Ib. due, could not be heard to plead fraud, or failure of

4. What are matters in which State authorities are not consideration, although "given for a patent right"

controlled by Federal Constitution. — Neither the corpowas in the body of the note, and that these words did uut put the purchaser on his guard, or convey any no

rate agency by which the work is done, the excessive tice whatever, being equivalent to “ value received."

price allowed for the work by statute, nor the relative And so, in Hascall v. Whitmore, 19 Me. 102; Smith v.

importance of the work to the value of the land Hiscock, 14 id.

assessed, nor the fact that the assessment is made before

the work is done, nor that the assessment is unequal as There is no error in rejecting the evidence offered, nor in refusing to charge the jury as requested. The

regards the benefits conferred, nor that personal decision of the court below is sustained, and judgment judgments are rendered for the amount assessed, are

matters in which the Federal Constitution controls the my be entered on the verdict. Leave to bave the

State authorities. Ib. cause certified to the Supreme Court refused.

5. State law authorizing dams across small navigable

rivers.-In the absence of legislation of Congress reguUNITED STATES SUPREME COURT ABSTRACT.

lating the matter, acts of the legislature of Wisconsin

providing for the erection of dams and booms upon BANKRUPTCY.

small streams wholly within the State, but navigable Mere passive non-resistance to judicial proceedings a short distance up from their mouths, but whose not giving a preference. - The mere non-resistance of chief value for water carriage is for logs, sawed luma debtor to judicial proceedings against him, when ber, etc., the structures mentioned being necessary to the debt is due and there is no valid defense to it, is develop and utilize such value, held not invalid, as not the suffering and giving a preference under the being in contravention of the commerce clause of the bankrupt act. It is also held that the facts that the Federal Constitution. Judgment of Circuit Court, W.

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