« AnteriorContinuar »
quent selection and occupancy of the premises mort
PARTNERSHIP. gaged, as the homestead of the mortgagor. As against 1. Partner cannot make assignment for benefit of such mortgage, the wife of the mortgage debtor is not creditors without consent of copartner: subsequent ratieutitled to an assignment of a homestead in the prem fication.- One of the members of an insolvent firm ises mortgaged. Gibson v. Mundell.
cannot, either before or after dissolution of the partINSURANCE.
nership, make a valid assignment of all its effects for Waiver of defense by company.-In an action against
the benefit of creditors, against the will of a copartan insurance company to recover the amount of a fire
ner, or without his assent when he is present or accesspolicy, a defense on the ground that the insured failed
ible. Where an assignment is so made against the to make and furnish the insurer with the preliminary
will of the non-executing partner, or when he is present proofs of loss in the manner and within the time re
and not assenting, and he subsequently ratifies the quired by the policy, is not waived by setting up and
assignment, the ratification will relate back to the relying upon other defenses not inconsistent there
time of executing the assignment, and give it effect with. Farmers' Ins. Co. v. Frick.
from that date; but not so as to defeat the rights of
third persons, acquired in good faith in the meantime. NEGOTIABLE INSTRUMENT.
Holland v. Drake. 1. Note obtained by fraud: misrepresentation as to na 2. What constitutes. — R. and L. agreed that R. ture of instrument: negligence.-In an action against the
should furnish the ground for a brick yard, the clay to maker, by an indorsee of a negotiable promissory note,
| make bricks thereon, the lumber to protect the bricks who purchased the same for a valuable consideration,
while making, and the wood to burn them, and that L. before maturity, and without notice of any fraud or
should manufacture and burn bricks in the yard, and infirmity as between the original parties, the defend
be at all the expense of so doing; when manufactured, ant is not liable where it is shown: (1) That at the
each was to have a fixed proportion of the bricks, subtime of signing and delivering the note, he was in
ject to a certain sum that R. was to have for every duced, by fraudulent representations as to the charac
100,000 bricks sold; the bricks were to be sold by either ter of the paper, to believe that he was signing and
of the parties, and the proceeds divided according to delivering an instrument other than a promissory note.
the rights of the parties under the contract. Held, (2) That his ignorance of the true character of the that R. and L. were partners, and jointly liable for a paper was not attributable, in whole or in part, to his
breach of a contract of sale made by either of them. own negligence in the premises. DeCamp v. Hamma. Farmers' Ins. Co. v. Ross. 2. Promissory note obtained by fraud: negligence.
PUBLIC POLICY. In an action against the maker by a bona fide indorsee, before due and for value, of a negotiable promissory
Contract of school trustees void by.-- An agreement note, the defendant is liable if guilty of negligence in
by members of a township board of education, acting the execution thereof, although he did not intend to
in their individual capacity, to purchase from another sign a note, and was induced, through fraudulent
person apparatus for the schools of the township, and representations as to its character, to believe that the
to ratify said contract of purchase at the next meeting instrument executed was one of a different purport.
of the board, is contrary to public policy, and thereRoss v. Doland.
fore illegal and void. McCortle v. Bates. 3. Negligence, leaving blank estoppel.-A person who
REAL ESTATE. negligently signs and delivers to another a printed
Life interest and remainder: construction of deed.-form of a negotiable promissory note containing
Real estate was conveyed to C. for life, and after her blanks, without knowing it to be such, is estopped, as
death to her children by E., during the life of each of against a subsequent bona fide holder for value and
the children, and after their death to E. and to his before due, from denying authority in the person to
heirs, habendum to C. during life, and after her death whom it was delivered to fill the blanks. Ib.
to the "said surviving children,” and after the death 4. Signing note without reading: estoppel: negligence.
of each of them to E. and his heirs. Held, that the A person possessed of the ordinary faculties and ability
provision for the children was contingent upon their to read, signed and delivered a negotiable promissory
surviving their mother, and only such of the children note without knowing it to be such, but without read
as survived her took the estate. That E. took a vested ing the same, having an opportunity to do so, relying
remainder in fee, subject to the intervening contingent solely on the representation of the payee that the
estate of the children. Smith v. Block. paper was an instrument other than a note. Held, as against a bona fide holder before maturity for value,
STATUTE OF FRAUDS. such maker will not be permitted to deny the due exe 1. Sale of interest in land: license.- An agreement cution of the note. Winchell v. Crider.
between the owner of an artificial water-course and a 5. Title to: defense.—The debtor of a bank, of which railroad company, whereby the former consents that A was cashier, transferred a negotiable note, in pay- the latter, in the construction of its road, may fill the ment of his indebtedness, to A by special indorsement, channel and divert the water into a new channel on and thereupon the bank, to enable A to bring suit its owu land, in consideration that the railroad comthereon, assigned its interest in the note to him, Held, pany will open the old channel and restore the water that A might maintain an action on the note in his thereto whenever requested, is not a contract for an own name, notwithstanding he may be accountable to interest in land within the meaning of the statute of the bank for the proceeds when collected. Such in frauds. Hamilton and R. Hyd. Co. v. Cincinnati, H. dorsement and transfer having been made before and D. R. R. Co. maturity of the note, the same in the hands of A is 2. License: estoppel ultra vires.-Where a license to not subject to any defense of which neither he nor the fill up such water-course is obtained from a corporabank had notice at the date of the transfer. Wright v. tion in possession as owner, in consideration of a Stanley.
promise to reopen and restore the water-course when
requested so to do, the licensee, when sued for a breach The following statements in regard to Lord of his promise, is estopped from setting up that the Justice Christian, of the Irish Court of Appeal, will ownership and maintenance of the water-course by the
explain many of his recent acts and remarks: “The
duties of his office occupy about 100 days per annum. corporation are ultra vires. Ib.
His leisure is, therefore, more than considerable. How do you think he employs his time? This cross, cranky,
jealous potentate reads novels from morning till night. BENCH AND BAR.
He sees no company, and accepts no invitations. He Clerical justices have not, as a rule, proved
is married, and has a family. He allows his wife, who
is a very pleasant lady, and, apparently, a very ha a success, but the Rev. Sydney Smith was an excep woman, to entertain as she pleases up to 6 o'clock in tion, according to the following sketch which we find the evening. Then all the guests must go. He never in the Washington Law Reporter: "He set vigorously appears until then, and he sits down to dinner in to work to study Blackstone, and made himself master silence. He takes breakfast in his study alone, and of as much law as possible, instead of blundering on as after a certain hour in the morning 10 servant dare many of his neighbors were content to do. Partly by come to his level of the hall, ou pain of instant disthis knowledge, partly by his good humor, he gained a missal. In fact, he must not be encountered on the erable influence in the quorum, which used to
steps. Sometimes he never leaves the house for weeks meet once a fortnight at the little inn, called the together, and then he drives out in a carriage and pair, Lobster House; and the people used to say they were and, flying through the streets, strikes terror to his 'going to get a little of Mr. Smith's lobster sauce.'
species. He once nearly broke down, and, addressing By dint of his powerful voice and a little wooden
the nearest thing to a friend, said: 'If I ever invited hammer, he prevailed on 'Bob' and 'Betty' to speak any man to my house, I would invite you.' And then one at a time; he always tried, and often succeeded in he stopped. In contradistinction to his marvelous turning foes into friends. Having a horror of the
knowledge of law, he is reputed to be the best Shakeggame laws, then in full force, and knowing, as he states pearean student alive in the three kingdoms. It is 11 his speech on the reform bill, that for every ten said he can repeat the plays verbatim. So that pheasants which fluttered in the wood one English between the novels and the play, the law and his own peasant was rotting in jail, he was always secretly on sweet temper, Jonathan Christian is by no means an the side of the poacher (much to the indignation of his ordinary person. Spiteful people say he is mad; but fellow-magistrates, who in a poacher saw a monster of no signs of failure have shown themselves as yet, and iniquity), and always contrived, if possible, to let him he is now well over sixty years of age." escape rather than commit him to jail, with the certainty of his returning to the world an accomplished villain. He endeavored to avoid exercising his functiou RECENT BANKRUPTCY DECISIONS. as a magistrate in his own village, when possible, as he wished to be at peace with all his parishioners. Young
HOLIDAY delinquents he could never bear to commit; but read Docketing judgment on.-In the absence of prohibthem a severe lecture, and in extreme cases called out, itory legislation by the State, the docketing of a tran“John, bring me my private gallows !" which infallibly
script of judgment on a holiday is not void, but will brought the little urchins weeping on their knees, and
Oh! for God's sake, your honor, pray forgive us!' and confer a valid lien upon the real estate of the debtor his honor used graciously to pardou them for this time, in the county where it is filed. U. 8. Ciro. Ct., W. D. aud delay the arrival of the private gallows, and seldom Wis. In re Worthington, 16 Nat. Bankr. Reg. 52. had occasion to repeat the threat."
JURISDICTION. A writer on successful lawyers, in the cur
Actions to recover bankrupt's property: Federal and rent number of the Westminster Review, refers to Lord Justice Knight Bruce, who, he says, “struck by the
Stale courts.-Under the amending act of June 22, 1874, iess and gloominess of the proceedings in courts of the Federal courts bave exclusive jurisdiction over equity, sought to enliven Lincolu's-imn by an occas
actions brought by assignees to recover property ional exhibition of judicial waggery. These attempts were enhanced by a sonorous voice and a solemn, sen
claimed to have been transferred by a baukrupt in tentious way of speaking.” And he cites the case in violation of section 5128, where the value of such which a solicitor of the court having become one of its property exceeds $500. By the act of June 22, 1874, suitors, the learned judge thus sketched the proceedings: “The court," commenced the Lord Justice,
the State courts were ousted of their jurisdiction over " has been now for several days occupied in the matri such actions pending before them at the time of its monial quarrels of a solicitor and his wife. He was a man passage. N. Y. Sup. Ct., 1st Dept. Olcott, assignee, v. not accustomed to the ways of the softer sex, for he had already had nine children by three successive wives.
Maclean, 16 Nat. Bankr. Reg. 79. She, however (herself a widow), was well informed of
PRACTICE. all these antecedents, and, it appears, did not consider
When interest allowed: attorney's commissions : ju them any objection to their union, and they were married. No sooner were they united, however, than
risdiction: foreclosure of mortgage.-Where the asthey were unhappily disunited by unhappy disputes as siguee bas sold real estate discharged of liens, he should to her property. These disputes disturbed even the
allow interest on the liens to the date of making up usually dedicated to the soft delights of matrimony, and the honeymoon was occupied by endeavors
his report of distribution. Attorney's commissions to induce her to exercise a testamentary power of and costs stipulated to be paid on foreclosure are not appointment in his favor. She, however, refused, and allowable when the proceedings to foreclose are in80 we find that, in due course, at the end of the month,
valid. When the bankrupt court has first taken jurisbe brought home with disgust his still intestate bride. The disputes continued, until at last they exchanged
diction by ordering a sale of mortgaged premises, disthe irregular quarrels of domestic strife for the more charged of liens, it thereby ousts a State court of disciplined, but expensive, warfare of Doctors'-com
jurisdiction to foreclose the mortgage. U. S. Dist. mous and Lincoln's-imn." In a case where the question to be decided was on the construction of a will, the
| Ct., W. D. Pennsylvania. In re Devore, 16 Nat. Bankr. Lord Justice remarked: “If the spirits of the departed | Reg. 56. are ever permitted to be conscious of things which take
PREFERENCE. place here below, and if the spirit of the testator has What amounts to procuring entry of judgment.been cognizant of the discussion which has been going on here to-day, he must have been, no doubt, con
Where one of the members of an insolvent firm, siderably astonished, perhaps, I might say, disgusted,
with knowledge of such insolvency, carries a message at the intentions which have been ascribed to him, at the request of a creditor, although unwillingly, to and the various meanings which have been put upon his words. Nevertheless, we must presume that he
| an attorney, directing him to enter up judgment upon intended what, as lawyers, we make his words to a judgment note which the firm had previously given, mean, no matter whether he meant it or not."
held, that he thereby procured the entry of such judg
ment and the issuing of the execution thereon. U. S. there be any doubt but what portions, at least, of the Circ. (t., E. D, Pennsylvania. In re Benton & Bro., repealing act - chapter 417 of 1877 — are unconstitu16 Nat. Bankr. Reg. 75.
tional ? For instance, “Those portions of section 256, SET-OFF.
which are not inconsistent with or superseded by the In case of voluntary assignment: deposits in bank.- act chapter 448," etc. Subd. 4, sec. 1, chap. 417, SesA voluntary assignee is a mere representative of his sion Laws of 1877, p. 469. assignor, and takes his choses in action subject to any
Yours, etc., ROSWELL R. Moss. existing right of set-off. Where a bank has made a voluntary assignment for the benefit of creditors, a
QUERIES. depositor may set off a balance of deposits due him
New YORK, July 21, 1877. against his note held by the bank at the time of the To the Editor of the Albany Law Journal: assignment. Sup. Ct., Pennsylvania. City Bank of SIR - A difference of opinion on the following legal Harrisburg v. Sherlock, 16 Nat. Bankr. Reg. 62.
question has arisen between several members of the
bar of this city, and it has been agreed to refer the • CORRESPONDENCE.
same to you for a decision:
A and Co. fail in business in 1868. They file their THE CONSTITUTIONALITY OF THE NEW CODE.
voluntary petition in bankruptcy in the same year, ELMIRA, N. Y., August 24, 1877.
and regular proceedings follow in the shape of meet
ings and examinations. The matter is then dropped To the Editor of the Albany Law Journal:
by the creditors, and is allowed to remain in statu quo SIR- Let me present a “point" for the considera
by the debtors. In the meantime the statute of limittion of yourself and the profession:
ations has barred the various claims, more than six How far is chap. 416, of the Laws of 1877, obnoxious
years having now elapsed, the question in dispute is, to the prohibition of art. 3, sec. 17, of the Constitu
will a present application for a discharge in banktion? In other words, is the new Code, as certified
ruptcy revive the various debts due by said debtors in to by the Commissioners and the Secretary of State,
case such application is refused? I think not, for the as required by section two of the amendatory act, so
reason that the statute of limitations would form a called, unconstitutional ?
perfect defense, despite the bankruptcy proceedings. This question, which, so far as I know, has not been
My views are, however, controverted, and your opinion raised before, having suggested itself to me, I send
Will oblige SUBSCRIBERS. to you that I may learn how it strikes others. The prohibition of the Constitution is in these words:
[In Brown v. Bridges, 2 Miles (Penn.), 424, it is held “Sec. 17. No act shall be passed which shall provide
that the return in au insolvent's petition of a debt, as that any existing law, or any part thereof, shall be
due, is not a sufficient acknowledgment to take the made or deemed a part of said act, or which shall
debt out of the statute. See, also, Christy v. Flemingenact that any existing law, or any part thereof, shall
ton, 10 Barr, 129; Roscoe v. Hale, 7 Gray, 381; Stodbe applicable, excepting by inserting it in such act."
dard v. Doane, id. 387; Richardson v. Thomas, 13 Gray, From a communication, appearing in your columns
381; Woodbridge v. Allen, 12 Metc. 470. The cases in May, 1875, I extract the following paragraph, in
holding to the contrary are In re Eldredge, 12 National which the writer refers to the section above cited:
Bankr. Reg., and Morgan v. Meteyer, 14 La. Ann. 612. “It was intended then, evidently, to prevent this
It will be seen that the weight of authority is in favor kind of legislation -- the kind that compels the exam
of the rule, that the debt is not revived by such an ination of several laws to find out what one law means.
admission. - ED. A. L. J. In other words, was it not intended, and do not the
BUFFALO, N. Y., August 27, 1877. words of the section indicate, that EVERY law passed
To the Editor of the Albany Law Journal: by the legislature shall be, in so far as it goes, a complete
SIR- On the 3d day of August, 1877, A made and B law in itself? It seems to me, and every lawyer that I
indorsed a promissory note for $156.58, payable in have talked with on the subject is impressed in the
twenty days after date, at the M. & T. Bank in Buffalo, same way, that any law which, by implication or by
N. Y., and on that day the note was delivered to C. words, requires a reference to some other law, in order
On August 25, the day the note, by its terms, became to make clear what may or may not be done under it,
due, and immediately after the M. & T. Bank opened, is clearly unconstitutional.” 11 Alb. Law. Jour. 322.
a notary public presented the note at the M. & T. Suppose the Commissioners to have been lawfully
Bank and demanded payment, which was refused, and authorized by section two of chapter 416 of 1877 to do
the note was theu and there duly protested for nonan act that ought to have been done by the legislature.
payment. Afterward, and about noon of the same The combination of chapters 448 of 1876 and 416 of 1877
day, A came to C, the holder of the note, and tendered has been no slight task, and the Commissioners have
to him the amount of the note, which C refused to found the same difficulties the writer of the article referred to thought the Constitution was amended to
accept, saying that the notary's fees would have to be
paid. A refuses to pay the notary's fees. These being prevent. See the Commissioners' introduction to the
the conceded facts, I desire to ask you: Code of Civil Procedure, where they use this language: “The amendatory act is so framed that confusion
I. If C had the right to have the note protested as would probably ensue in putting it into operation,
soon as the bank opened?
II. Can C maintain an action on that note against A unless the text of the act of 1876 was previously ac
and B? tually conformed to the amendments by authority of law.” Code of Civ. Pro., edition of Weed, Parsons &
An answer will greatly oblige. Co., with Throop's notes, pp. vii, et seq. ; particularly,
J. S. pp. xii-xiv.
[The general rule is, that if a bill or a note be payable Whatever the answer to the above question be, can I at a particular place, demand may be made there at any
time during business hours of the day when it is pay- to the chemical analysis of each bag, or to a reckless able, and the indorser is liable on notice, although sale of all the bags; that those in charge of the sbip funds are placed there for payment of the note later in having destroyed the commercial value of the salt, as the day and within business hours. The maker has table salt, by the course they pursued, that the ship the whole day for payment, but, after demand and re must respond for the damages, which would be the fusal, he must seek the holder and make payment to difference between the value of the salt in the market him. Parsons on Bills and Notes, 374; Oathout v. Bal. of New York, as table salt, and what it brought on its lard, 41 Barb. 33. The holder has a right to make de sale. mand and of course employ a notary to do so at any time during business hours of the place where pay
A judgment of great importance to the mercantile ment is to be made, and it would seem to follow that the notary's charges would attach to the note, and the
community generally has been pronounced by the Impemaker thereof be liable therefor. The custom of
rial Court of Germany, at Leipsic, in favor of Messrs.
J. & R. Tennent, of Well-park brewery, Glasgow, and banks, in respect to such matters, might affect a particular case, but, apart from that, the rule we have
Riches-court, London, plaintiffs, against Messrs. Deetstated would govern. The cases in relation to the sub
jen & Schröder, brewers, Hamburg, defendants. The ject are collected in Oathout v. Ballard, supra.-ED.
present case has been before three of the courts. The
Tribunal of Commerce of Hamburg, the first court beA. L. J.]
fore which the case was heard, pronounced an elaborate
judgment on the 19th of June, 1876, in favor of Messrs. NOTES.
Tennent, but this judgment was reversed in the Su
preme Court on the 1st December last. It was then TIE August September issue of the Southern Law
feared that the new German trade-marks act would be 1 Review contains articles upon these subjects: The
ineffective in protecting foreign manufacturers, but, Unconstitutionality of the Act of Congress of Febru
fortunately, those fears have been set at rest by the ary 12, 1873, Demonetizing Silver, by Hon. Thomas F.
judgment of the Imperial Court of Leipsio. The judgGantt; Civil War and Life Insurance; Some Notes ou
ment is to the effect that, as goods bearing trade-marks, Domicile, by Francis Wharton, LL.D.; A Point of the
after they have been distributed by commercial trade, Statute of Frauds, by Hon. W. F. Cooper; Law and
and have been, in part, taken to circles far distant Insanity, by J. C. Lodge, Esq. The book reviews dis
from the place where they were produced, can be play the usual discrimination and ability. The notes
quickly and easily recognized in the retail trade and by are upon subjects of present interest, and the digest
consumers. It is self-evident that the general appear. in brief of recent cases contains the syllabis of all de
ance of the trade-mark is taken into consideration, cisions appearing in full in the various law journals,
and that thereby insignificant deviations - as, for exsince May 25, 1877.
ample, such as are only caused by single marks added
to the figureg used — according to the circumstances, A very singular caso was brought to the attention of
are of little or no consequence. The names of firms a Probate Court in Massachusetts recently. A man
which might be used in the grouping of trade-marks . died leaving a will which divided his property equally
have no significance, but stand in the same position as between his wife, his child, and a child then unborn.
numbers, letters, or words used with the figures. It The unborn party proved to be twins, and the execu
was, therefore, in the judgment of the court, only a tor is sorely perplexed as to whether he shall give each
question between the parties, whether the defendants, of the twins one-sixth of the estate, or whether he
according to sec. 9 of the law of 1875, were entitled to a shall carry out the testator's purpose to serve all the
right, in competition with the plaintiffs, to the use of the children alike, by giving them and the widow each
trade-mark in question, for this reason, because that ope-fourth, or whether, again, he shall give the widow
mark was, until the commencement of the year 1875, her third, and divide the other two-thirds among the
generally acknowledged in the trade as the mark of the three children. The case being wholly without pre
defendants' manufacture. That question is, in agreecedent in this State, the court gave the executor no
ment with the commercial tribunal, to be answered in advice, and the conundrum is to be brought before the
the negative. As is shown by the papers of the action Supreme Court.
brought before the lower court in the years 1863 and 1864, between plaintiffs and defendants, the defend
ants did not then sell the beer produced by them under A decision was rendered in the United States Dis the trade-mark in question as their beer, but as that trict Court for the Southern District of New York, on of the plaintiffs. They went so far as to imitate the the 25th ult., in the case of Dowell v. The Ship Niagara. trade-mark and labels of the plaintiffs in all their The libellant in this case, in March, 1875, shipped on parts, even making use of their full name, as also the board the Ship Niagara, at Liverpool, to be carried to | name of the plaintiffs' brewery, completely and exactNew York, 1,950 sacks of fine table salt, called Ashton ly. They certainly had to give up the use of the name salt. The ship carried on the same voyage about 100 of the plaintiffs' firm in consequence of the judgment kegs of powdered arsenic, which was stored on the given against them, but could not then be compelled main deck. During the voyage the kegs of arsenic to do more. They thereupon continued to sell their spread, and were sifted over the sacks and impreg- produce, retaining the trade-mark of the plaintiffs, nated the salt with poison, that rendered it utterly and leaving out the name of the plaintiffs' firm. By unsafe and unfit for use, and valueless, or nearly so. virtue of these and other considerations, the decision The court held that it was the duty of those in charge of the High Court was ordered to be annulled, and the of the ship to get apart the bags which appeared ex- decision of the Tribunal of Commerce reinstated, and ternally to have come in contact with the arsenic; | compensation of the costs of the second and third that their failure to do so having driven the libellant | instance was affirmed.
The Albany Law Journal.
All communications intended for publication in the but the decision of the Kentucky court indicates LAW JOURNAL should be addressed to the editor, and the that this sentiment is not by any means prevalent, name of the writer should be given, though not necessa
although it may be temporarily popular. rily for publication.
Communications on business matters should be addressed to the publishers.
Upon the first of January next the Irish judicial system will undergo a transformation no less radical and important than that which two years ago took place in England. The new organization is
to be very like the present English one. All the ALBANY, SEPTEMBER 8, 1877. existing higher tribunals of Ireland, with the excep
tions of the Bankruptcy Court and Court of AdmiCURRENT TOPICS.
ralty, are to be consolidated as “the Supreme Court
of Judicature in Ireland," and this Supreme Court A DECISION of great importance upon the ques is to be divided into a “High Court of Justice,”
tion of extradition was rendered on the 1st exercising original jurisdiction, and a “Court of inst. in a Kentucky criminal court. One Hawes, Appeal," exercising appellate jurisdiction. The who was treasurer of the city of Covington, in that Irish bench, under this scheme, will consist of the State, was extradited from Canada upon a charge of Lord Chancellor and two salaried appellate judges, forgery, and was tried and acquitted. He was then and fifteen judges of first instance. These officials called to answer a charge of embezzlement, which is are to be reasonably well compensated – the Lord not an offense embraced within the provisions of the Chancellor receiving £8,000, or about $10,000 a treaty relating to extradition. He refused to plead,
year; the appellate judges £4,000, or about $20,000 and asked for a discharge without trial, and an
each, and the other judges sums ranging from opportunity to return to Canada. After an ex
| £3,500, or $17,500, to £5,000, or $25,000, per annum. haustive argument by counsel, the court, Judge In these new courts law and equity are to be conJackson, of Louisville, delivering the opinion, currently administered, and all legal and equitable granted the request. The opinion maintains that
remedies are to be equally available in any division extradition is not a matter of natural obligation, of the High Court. The rules of court” to regubut rests wholly upon express treaty stipulations,
| late trial and procedure are to be framed and issued which cannot be extended by construction; that the
construction; that the in council by the Lord Lieutenants, on the recomenumeration of certain crimes in a treaty operates mendation of the judges or the majority of them. as an exclusion of all others, and that, without any | In other words, the Code of Civil Procedure now in express stipulation, there is an implied obligation force in England is to be adopted, with such modito try for no crime other than those named in the
fications as may seem necessary to adapt it to the warrant of extradition, and that it is the duty of
Irish courts. Thus another jurisdiction adopts the courts to observe this implied obligation of a pub
New York judicial system, and there is little doubt lic treaty. The decision attacks directly the doc
that other parts of the British Empire, where that trine heretofore advocated in some of our courts,
system does not already exist, will soon do likewise. and upheld by our diplomatic officials in the Wins
After that, perhaps Massachusetts and Illinois will low case. It lays down, however, the only consist
try the Code. ent, honest and safe rule, and the one always insisted upon by us. As the prisoner was discharged In the New York Court of Common Pleas, on the and immediately left for Canada, there is no proba- 31st ult., Judge Robinson made some pertinent bility that the question will be passed upon by the remarks in regard to the award of excessive fees to higher courts in this case, but we have little doubt counsel in instances where large estates are administhat if it is, Judge Jackson will be sustained. The tered by officers of the court. The case in question offenses for which extradition is usually allowed are was one of assignment, being entitled the Matter of numerous enough to embrace every criminal act that the Accounting of Scott, Assignee. A referee, to may be committed by an individual, independently whom had been given the duty of passing upon the of opportunity given by the injured party, and the assignee's accounts, in his report awarded to various government should not be put to the expense of attorneys large sums for services. To an attorney bringing home for trial those guilty of other crimes. who represented a creditor of the estate holding a Besides, the rule heretofore insisted upon has led us, claim of $134, was awarded the sum of $400. A and is liable again to lead us, into international special trustee of the estate was awarded $6,000, difficulties that embarrass the operation of the though his legal fees would amount to less than machinery designed to suppress crime. Most of $4,000. The assignee was entitled to legal commisthe newspapers have taken strong grounds in favorsions of $11,392. The referee gave him $40,000, of the rule we condemn, and have created an and his legal counsel $11,000. How much the apparent popular sentiment in the same direction, referee was awarded for his own fees does not ap
Vol. 16. — No. 10.