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at St. John then immediately telegraphed to the defendants: "Do not deliver earthenware from our English house to W. P.; hold to our order. Clementson & Co." W. P. had a large number of other packages with defendants. Held, that the notice to stop was insufficient, as it did not specify or identify the goods in question, and the plaintiff's names did not appear in any bill of lading held by the defendants. Court of Q. B., Ontario, Dec. 28, 1877. Clementson v. G. T. Ry. Co. (Can. L. J.)
Usury: consolidation of usurious loans with those not usurious.- Where a loan of $4,500 was made, on which a $500 prenium was paid, and included in the mortgage, and subsequent loans were made, and, finally, all the loans included in one mortgage of $7,500. Held, that the first loan only was usurious, and to that the forfeiture of interest must be confined. N. J. Chancery, Dec. 18, 1877. Mahn v. Hussey (N. J. L. Jour.)
COURT OF APPEALS ABSTRACT. BANKRUPTCY.
1. Surety on undertaking on appeal not exonerated from liability by discharge of principal.-Under the provision of the statute (Old Code, §§ 334, 335), relating to stay of execution upon appeal, defendants undertook for the payment of all costs that might be awarded against their principal, the appellant in the action, on the appeal and the judgment appealed from, in case the same should be affirmed or the appeal should be dismissed. Held, that the discharge of the principal in bankruptcy pending, the appeal did not, under the provision of § 38 of the Bankrupt Act, release defendants from their liability upon the undertaking. (Cornell v. Dakin, 38 N. Y. 253; Carpenter v. Turrill, 100 Mass. 450; Odell v. Wootten, 38 Geo. 224.) Judgment below affirmed. Knapp v. Anderson. Opinion by Allen, J.
2. Who may and may not be relieved by discharge in bankruptcy.-Bail to the action may be released on motion if their principal is discharged from his debts before their liability is fixed as bail, but bail in error or sureties in an undertaking upon appeal for the performance of the judgment that may be given by the appellate court, are not discharged. Ib. [Decided Dec. 18, 1877.]
NEW BOOKS AND NEW EDITIONS.
AMERICAN DECISIONS, VOL. I.
The American Decisions, containing all the cases of general value and authority decided in the courts of the several States, from the earliest issue of the State reports to the year 1869. Compiled and annotated by John Proffatt, LL. B., author of "A Treatise on Jury Trial," etc., Vol. I. San Francisco: A. L. Bancroft & Co., 1878. E time will very soon come when the valuable de
will be within the reach of
every practitioner of moderate means; not merely the leading cases, but all that he will be likely to want, or which will probably be referred to in the elementary treatise he consults, or in the latest delivered opinions of the courts. The current decisions of the American courts possessing general value have for some years been given to the profession in the "American Reports," but the vast body of cases scattered through the two thousand or so volumes of State and local reports in existence before that series was commenced, are yet inaccessible to most of those who have need to consult them. Therefore, the announce
ment made some time since that a series designed to embrace all cases of general value appearing in the various reports of American courts of last resort or appeal up to the year 1869, was welcomed with pleasure by many of the profession. The initial volume of this series has now appeared, and the work of the reporter is so excellently done that we are confident the bench and bar will give it the same hearty support they have accorded to other enterprises of the same character, covering other ground. The plan of the work is best stated by the reporter. In his preface he says, "It is proposed to include in this series of reports, all the cases of any general value and authority from the earliest reported decisions of our several State courts up to the year 1869, after which period the ground is covered by the series known as the American Reports. It is not thought desirable to include therein the Federal decisions, of which a revision is being published. The decisions of courts of last resort will be mainly considered; but there are decisions of courts of less grade that have been so long trusted and followed, and cited in our courts and text-books, that they may be deemed of such established authority as to rank with the decisions of the highest courts, and these will, therefore, demand our attention. Such, for example, are the decisions of the Supreme Court, and the Court of Common Pleas in Pennsylvania, reported in Dallas, and those of the Supreme Court in New York."
The work of the reporter is conscientiously done. We have examined with care the various cases reported and the annotations, and find that where cases have been overruled or doubted, or the doctrines therein stated modified, the fact is mentioned and the case where it occurs cited. To refer to the more valuable decisions in a report like this, is somewhat difficult, nearly all the cases being such as to merit attention. We will notice only these: Mack v. Parsons, p. 17, an old Connecticut case, sets forth a rule of comfort to husbands, namely, that a son-in-law cannot be held liable for the support of his wife's parents; Tuttle v. Bigelow, p. 35, extending the time of performance is a good consideration to support a promise; Kinsman v. Kinsman, p. 37, grass growing does not pass by a description of personal property in a will; Warner v. Warner, p. 38, the determination of a verdict by dividing the aggregate of the sums found by each juryman by twelve, held ground to arrest the judgment; Leffingwell v. White, p. 97, in bills and notes time is calculated by calendar, not lunar months; Oakley v. Farrington, p. 107, defendant said of plaintiff, a magistrate, "Squire Oakley is a damned rogue;" it did not appear that the words were spoken of plaintiff in his magisterial capacity. Held, that they were not actionable; Morris v. Tarin, p. 233, money voluntarily paid where there was no legal obligation, cannot be recovered back; Respublica v. Oswald, p. 246, publication of remarks in a newspaper having a tendency to prejudice the public as to the merits of the case, held a contempt of court; Messier v. Amery, p. 316, a foreign judgment of a court having jurisdiction of the subject-matter, held conclusive, and its merits not to be inquired into in a collateral action; Moncrieff v. Goldsborough, p. 407, it is a fraud for a vendor at auction to employ by-bidders; State v. Brown, p. 548, a horse stolen in one State, and carried into another, will not make a felony in the latter State; Irwin v. Sherill, p. 574, a stranger misrepresenting a horse to be sound, and inducing plaintiff to buy, is liable
to an action for deceit; Frothingham v. Price's Executors, p. 618, notice of protest is not necessary to charge drawer when he has no funds in drawee's hands; James v. O'Driscoll, p. 632, friendly services furnish no ground for an action for pecuniary compensation; State v. Quarrel, p. 637, the fact that an alien was on the jury unchallenged, held no ground for a new trial; Collins v. Westbury, p. 643, duress of goods held a good plea to an action on a bond given to procure their release. The decisions come down to no later date than 1802. The only insurance cases given are those upon marine policies and there are no cases relating to negligence or corporations showing that several now important branches of law were not then heard of. Several very elaborate notes are appended to cases, those in relation to "liquidated damages," etc., on page 631, and "trover,' on page 333, examining the case law quite fully. The profession will find these reports just what they want, and when the series is completed, no lawyer in practice can afford to be without them. We would suggest one or two improvements in the way of condensation. In several instances the arguments of counsel are given quite fully. This is proper enough in an ordinary volume of reports, but one that undertakes to give only the cream of the case law has seldom room for much more than the names of the counsel and a brief summary of the arguments and citations made by the unsuccessful one. Quite a number of cases given relate to the construction of wills. While decisions upon this subject have a value, they are, as a rule, not worthy of being included in a selection such as this. We must also criticise the insertion of such a decision as Russell v. Falls, p. 380, where the question when a will is attested in the presence of the testator is disA discussed at length but no conclusion reached. cussion of this kind is sometimes of interest, but it is out of place here. As a whole, however, the volume has so many excellent features, that the faults we have mentioned are excusable. It contains all the decisions of general value found in thirty volumes of the earlier reports, is well indexed, has a table of cases cited, and is well printed and bound.
ANDREWS' PRECEDENTS OF LEASES-SECOND EDITION.
Precedents of Leases, with Practical Notes; Second Edition. By John Andrews, B. A. Oxon, Solicitor of the Supreme Court of Judicature. London: Reeves & Turner, 1878.
A precedent is much more useful to the conveyancer than what is known as a form. The form is prepared in advance to cover all cases within a certain class, while the precedent only undertakes to show how certain cases actually existing were met. Both are designed as guides, but to one the ground is unknown while to the other it is to a certain extent familiar. We are glad, therefore, to welcome books which profess to aid the draftsman by furnishing him with the best examples of what has been done, and we esteem the volume before us as a book of that kind. It covers only a single subject, but one of growing importance in these days, when so large a proportion of the people either live or do business on leased premises. The work will be found chiefly useful in England, but it contains many hints that will be advantageous to American conveyancers. The precedents it gives are taken from those in constant use. They have all been carefully revised and many of them have been settled by counsel. The various clauses and provisions are
illustrated by notes referring to reported decisions, which embrace the leading points usually met in practice. The satisfaction which the work has given is indicated by the fact that a second edition has been called for-a somewhat unusual thing in books of this kind.
OATHS OF REFEREES TO COMPUTE AMOUNT Due.
HUDSON, N. Y., January 26, 1878. Editor Albany Law Journal:
GENTLEMEN.--In your issue of this date, you speak of
a point of considerable interest, passed upon in the case of Exchange Fire Ins. Co. v. Early, decided at special term of the N.Y. Court of Common Pleas on the 18th inst.," where a re-sale of mortgaged premises was ordered because the referee appointed to compute the amount due, had neglected to take the oath prescribed by § 1016 of the Code of Civil Procedure.
It seems to us that the court has entirely misapprehended the class of references to which this section is applicable. Its very terms show that it only applies to references when some issue is to be tried, or some question determined. It applies only to references "prescribed in either of the foregoing sections of this title." Title II, Chap. X.
The reference authorized by "the foregoing sections of this title" is in every case (except that authorized by § 1015,) to try some issue or determine some question. Section 1015 authorizes a reference to take an account after interlocutory or final judgment, and to report on a question of fact on a motion. Clearly, none of these sectious embrace such a reference as that under consideration. But another provision of the Code of Civil Procedure puts the matter entirely beyond controversy. Section 827 (art. 6th, tit. ch. 8th), in its last clause, provides as follows: "And when, according to the practice of the Court of Chancery, on the 31st day of December, 1846, a matter was referable to the Clerk, or to a Master in Chancery, a court having authority to act thereupon may direct a reference, to one or more persons desiguated in the order, with the powers which were possessed by the Clerk or the Master in Chancery, except when it is otherwise specially prescribed by law."
References to compute amount due and to sell mortgaged premises were always made by the old Court of Chancery to the Clerk or a Master, and hence such references are provided for by this section (827).
No oath of the Clerk or Master was required on such references, and none is now required of the referee, who, under the present practice, takes the place of those functionaries.
The language of § 1016 is utterly inapplicable to mere clerical computation, and by its terms the requirement of a preliminary oath is confined to references prescribed in the several sections of tit. 2, ch. 10. The Court will not be astute to disturb judgments entered upon the reports of referees appointed under authority derived from other provisions of the Code, and to unsettle titles acquired without this august ceremonial of a preliminary oath of the referee, "That he will faithfully and fairly compute the amount due upon the mortgage in suit, and make a just and true report, according to the best of his understanding."
Manifestly the attention of the Court of Common Pleas of the city and county of New York was not called to § 827 of the Code of Civil Procedure.
Very truly yours,
COURT OF APPEALS DECISIONS.
THE following decisions were handed down on Tues
day, January 22, 1878:
Motion denied - The People v. The Security Life Insurance Co.- Judgment affirmed, with costsThe Farmers and Mechanics' National Bank of Buffalo v. The Erie Railway Co. Order affirmed and judgment absolute for plaintiff on stipulation, with costs - Wood v. The Erie Railway Co.-Order of General and Special Term reversed and motion granted (on terms stated in opinion), with costs, payable out of the estate of the lunatic-Order to be settled by Chief Justice Church if parties do not agree.—In re Valentine.
The following decision was handed down Friday, January 25, 1878: In the matter of several applications to modify the rules and regulations in relation to the admission of attorneys, etc. "The court has had under consideration the several applications in behalf of students who were at the time of the adoption of the present rules in attendance upon the law schools of the State, as well as those who have pursued their studies at law schools out of the State, and also by and in behalf of gentlemen who have been admitted to the bar in other States, and have, without notice of any change of the rules of this court affecting their admission as attorneys, etc., removed to this State, for a modification of the rules, and feel the force of their several applications, but after deliberation it is deemed inexpedient to modify the rules or in any way to interfere with their operation and effect, and the applications are therefore denied."
The following decisions were handed down Tuesday, January 29, 1878:
Judgment affirmed, with costs - First National Bank of Oxford v. Wheeler; Goodrich v. Wheeler; Mitchell v. Wheeler; Maydale v. Wheeler; Hall v. Wheeler; First National Bank of New Berlin v. Wheeler; Wheeler v. Wheeler; Bank of Chenango v. Wheeler; Baggerly v. Farmers' Joint Stock Insurance Co.; Hughes v. Copper Mining Co.; Hunt v. Hunt; Horn v. Pullman; Auburn City National Bank v. Hinsiker; Kranshaar v. Meyer; Kohler v. Mattlage; Craighead v. Peterson; Holden v. New York and Erie Bank; Kettletas v. Kettletas; Sixth Avenue Railroad v. Kerr. Judgment reversed and new trial granted, costs to abide event - Town of Pierpoint v. Loveless; Jordan v. Valkenning. Order affirmed, with costs - In re application of the Brooklyn and Coney Island Railroad Co. Order of General Term reversed and judgment on verdict affirmed, with costs Dorrity v. Rapp. -Judgment of Supreme Court, and so much of decree of Surrogate as is involved in this appeal, reversed without costs to either party as against the other Bevan v. Cooper.
IE opening year brings with it quite a number of new adventures in the field of legal journalism. In addition to several which we have already noticed, we have received the initial numbers of The Memphis Law Journal, The New Jersey Law Journal, and The Cleveland Law Reporter. The first named is to be issued quarterly, and is to have, in addition to leading articles of local or general interest, reports of the de
cisions of the Supreme Courts of Tennessee, Arkansas and Mississippi. The January number contains a thoughtful and exhaustive essay on "The Chancery System of Tennessee," by Hon. W. F. Cooper; an article on "The Judiciary-what it is and what it should be," by Hon. Henry Craft; one on Tax Legislation in Tennessee," by Hon. J. B. Heiskell; and a memorial sketch of Andrew Ewing, by Hon. T. W. Brown. Every article is well and carefully prepared and is worthy the attention and perusal of the bar everywhere. Very full abstracts of six decisions of the courts of Mississippi and Tennessee are given, and one case in the Supreme Court of Tennessee is published in full. We trust that this new quarterly will receive a hearty support from the profession of the section where it is published. The New Jersey Law Journal is to be published monthly at Somerville, N. J. The January number contains some very carefully written editorial notes on subjects of present interest, reports of cases recently decided in the United States District Court for New Jersey, the Chancery Court and the inferior court of that State contributed articles on matters of interest and under the head of "Our Miscellany." Notes of important decisions from other states and countries, personalities, court notes, and humorous items. The Journal well deserves the support of the New Jersey bar, and we hope it will receive it. The Cleveland Law Reporter is to be published weekly, and is to contain decisions of the courts of Ohio and such matters as are of interest to the profession in the locality where it is issued.
The Pall Mall Gazette says that the law recently promulgated by the German government establishing courts to inquire into accidents at sea happening in German waters will come into force on the 1st of January next. Two courts are created by the new regulations; the one for the Baltic, the other for the North Sea. The president of each is to be a lawyer, and he is to be assisted by four assessors, two of whom are to be captains of merchant vessels in actual employment, to be selected on each occasion by the president of the court from a list prepared every year by the Chambers of Commerce. In certain cases also, the president may nominate a naval officer as one of the four assessors. The court, thus composed, has power to suspend for any length of time the certificate of the captain or pilot of any vessel into the conduct of which inquiry is being made, or even to prohibit them altogether from following their profession at sea; but the Chancellor of the Empire, to whom appeal may be made from the decision of the court, may remit the sentence pronounced by it at the end of a year. The provisions of this law have been warmly discussed in the papers of the German seaport towns since it was promulgated. The prevailing opinion appears to be that the sentences to be awarded are much too severe, and that the fear of incurring the punishments prescribed will cause captains and pilots to adhere rigidly to the regulations, even in cases where the only chances of avoiding a disaster would be to maneuver boldly and admission of a naval officer as promptly in opposition to the rules laid down. The an assessor is also warmly protested against, even in cases in which a man-of-war is concerned-unless, indeed, the officer appointed shall have previously served as a captain in the merchant service.
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 ad- plan suggested by Bulstrode.
dressed to the publishers.
The Albany Law Journal.
ALBANY, FEBRUARY 9, 1878.
referred to a committee. But that Parliament was in advance of its time. It has taken two hundred years to bring the English land-owners and money lenders to a realization of the advantages of the
The General Term of the Supreme Court for the First Department, in The case of Gesner, decided on the 31st ult., passes upon a somewhat important question in criminal practice, namely: whether a person charged with an indictable offense is entitled to an examination before a committing magistrate after an indictment has been found against him. The court holds that he has not such a right, reversing the decision below of Justice Westbrook. The opinion says: "It was not the intention of the Revised Statutes to require the magistrate to continue an examination under every and in despite of all circumstances, as, for instance, where he is satisfied the evidence fails to establish the charge. The intention was that no person should be held for trial by an arresting magistrate except on such examination; but there was no intention to continue such examination after its main object had been rendered nugatory by an indictment." The conclusion reached is the one generally held by the profession, though doubt had been thrown upon its correctness by the decision below in this case.
THE THE frauds perpetrated by the Solicitor Dimsdale has brought forcibly to the minds of English land owners and money lenders the dangers to which they are constantly exposed by the want of a system of registry of instruments affecting real property. To an American, accustomed, when he wishes, to buy or sell a piece of land, or to raise or invest money on a mortgage, to only the trifling expense and trouble of procuring a "search" from the official in charge of the public records, an English transaction, relating to real property, is a somewhat formidable affair. There the vendor and purchaser, or whatever the two persons who are striving to make a bargain may be entitled, must each have his solicitor, and each solicitor must have his counsel before any step can be taken. Then, after a long time spent in making abstracts of title and perusing documents which convey or fortify title, and raising or explaining difficulties, the deeds of conveyance are drawn, and with them are transferred all the antecedent instruments that can be parted with, as muniments of title. A single in-preme Court, for an order transferring the proceedstrument of conveyance answers, as a rule, with us, ing to the Federal courts, under the provisions of the vendee not caring for the possession of previous § 641, etc., of the Revised Statutes. The principal deeds so long as the title appears all right upon the grounds of the application were that a jury law, record. The objection raised to the adoption of a passed by the legislature of Louisiana in 1877, registry system in England has been that it would operated in favor of white citizens and against afford to those desirous of ascertaining the pecunthose of African descent, of which descent two of iary condition of others, from curiosity or some the petitioners were, and that the State officers had wise motive, an opportunity to do so, inasmuch as so manipulated the law as to deprive petitioners of these persons would have free access to the public an impartial jury, and had organized a jury so records. The principal opposition to the registry, prejudiced that petitioners could not have a fair however, comes from the solicitors, who imagine trial; and also that a prejudice existed against that a very important and lucrative business would petitioners among the authorities and court officials be interfered with, and perhaps ruined, if the trans- which would prevent a fair trial. The petition fer of real estate should be rendered as easy and was denied. The court held that the law comsafe as it is with us. We imagine, however, that no, plained of, which provides for the appointment of great harm would be done to the solicitors by a gen- commissioners who are to select impartially from eral registry act. In Middlesex, which is an im- those qualified to vote a large number of names of portant county, we understand that a system of good and competent men to serve on juries, is subrecording, which is nearly as convenient as the stantially the same law in force in other States, and American, has been in existence for some years, and not open to any constitutional objection. In regard that it has not operated to the disadvantage of the to the allegations of a manipulation of the law in profession. It was proposed by one Bulstrode, in such a manner as to secure a jury inimical to petithe Rump Parliament, that there should be a regis- tioners, and of the existence of a general prejudice ter of deeds in every county, and the matter was against them in the minds of the court, jurors and VOL. 17.- No. 6.
The members of the Louisiana Returning Board who have been indicted in the courts of that State for alleged criminal acts in connection with their official duties, made application to Mr. Justice Bradley, associate justice of the United States Su
officials, the opinion says they
A bill has been introduced in the Assembly by Mr. Bergen, designed to protect the purchasers of personal property to be paid for by installments. provides that the failure of a purchaser to pay any installment, when due, shall not result in a greater forfeiture of the right or interest of the purchaser than one-half of the amount already paid, and prohibits the seller from recovering possession of the property, in case of failure, except on refunding one-half of the amount already received on the sale. This is designed to prevent the oppressive carrying out of a class of contracts that are usually made between the vendors of certain kinds of household articles, such as sewing machines, pianos, etc., and women of limited means. These contracts are usually induced by false hopes held out by the vendors of the articles, and are usually so framed as to give the purchaser hardly any right except that of possession, until the vendor shall reclaim the article. The courts have, in various cases, endeavored to so construe these contracts as to save the purchaser from heavy loss, but this is not always possible, and the bill mentioned is designed to secure equity in every instance.
NOTES OF CASES.
IN the case of Welton v. State of Missouri, 1 Otto,
275, a statute of Missouri which required the payment of a license tax from persons who should deal in the sale of goods which were not the growth, produce or manufacture of the State, by going from place to place to sell the same in the State, and which required no such license tax from persons selling in a similar way goods which were the growth, produce or manufacture of the State, was held unconstitutional as being in conflict with the power vested in Congress to regulate commerce with foreign nations and among the several States. The court held that the tax was not one upon a calling, but upon the goods designated, and that legislation, discriminating in favor of the products of the State and against those of other States, was invalid under the clause of the Federal Constitution giving to Congress the power mentioned. The Supreme Court considered a similar question in Brown v. Maryland, 12 Wheat. 425, where an act of
the legislature of Maryland required importers of foreign goods to pay the State a license tax before selling them in the form and condition in which they were imported. The statute was held to be unconstitutional, the court saying that a tax on the occupation of an importer was a tax on the goods imported. The decision is also supported by the case of State Freight Tax, 15 Wall. 232. In Almy v. California, 24 How. 169, a tax upon a bill of lading of goods transported on the high seas is held a regulation of commerce and invalid. In Woodruff v. Parham, 8 Wall. 123, a tax on railroad and stage companies for every passenger carried out of the State by them is held void, not as a regulation of commerce in the absence of conflicting legislation by Congress, but as opposed to the right of the government to transport troops and the right of citizens to approach the great departments of government, the ports of entry through which commerce is conducted, and the various Federal offices in the States. See, also, Van Buren v. Downing, 41 Wis. 122, where a statute of Wisconsin, similar to that of Missouri, is held unconstitutional upon the authority of the principal case.
In the case of The Benton, recently decided by the United States District Court for the Eastern District of Michigan, the question arose whether & firm of material men, composed of three members, could libel a vessel for supplies furnished, such vessel being owned by two members of the firm. The court held that the libel could not be sustained. That a material man has no lien upon his own property has been repeatedly decided, not only in admiralty, but in cases under the mechanics' lien laws of the several States. Logan v. Steamboat Eolian, 1 Bond, 267; Babb v. Reed, 5 Rawle, 551; Stevenson v. Stonehill, 5 Whart. 301; Peck v. Brummagin, 31 Cal. 440. It was decided in Doddington v. Hallet, 1 Ves., Sr., 497, that the part owner of a ship has a lien upon the shares of his coowners, but this case parte Young, 2 V. & B. 242; Patten v. was overruled in Ea Randolph, Gilp. 457; Hall v. Hudson, 2 Sprague, Schooner 65; The Larch, 2 Curt. 427; Macey v. De Wolf, 3 W. & M. 205; Mumford v. Nichol, 20 Johns. 611; Green v. Briggs, 6 Hare, 395; Lamb v. Durant, 12 Mass. 54; Merrill v. Bartlett, 6 Pick. 46; Braden v. Gardner, 4 id. 456; French v. Price, 24 id. 14. In a case like the one at bar, the only remedy would be a personal one in a court of equity. See Case of Steamboat Morton, 22 Ohio St. 26, which was very similar to the one at bar. Plaintiffs, a firm, furnished materials to a vessel owned by one of their zumber, and it was held that they could not recover. In The Druid, 1 W. Robinson, 399, it is said: “In ownership of the persons whose ship is proceeded all causes of action which may arise during the against, I apprehend no suit could ever be main