Imágenes de páginas

eration of forbearance to proceed against such person tion from taxation in the charter of the Baltimore to have him adjudged a bankrupt, if at the time of and Port Deposit Railroad Company, the legislature the promise the creditor had not the right, under the | had the right to tax the gross receipts of that portion Bankrupt Act, to institute such proceedings. A of the road of the defendant, which formerly coustipromise made under such circumstances is without tuted the Baltimore and Port Deposit railroad, being consideration and not binding. Ib.

the only other portion of the road of the defendant 3. Who may not institute proceedings in bankruptcy. lying within the State of Maryland. 3d. That the Under the Bankrupt Act of the United States, no plaintiff was entitled to recover one-half of one per creditor who has received a preference, knowing at centum on the same proportion of the gross receipts the time, or having reasonable cause to believe, that of the defendant, on its entire road, as the length of his debtor is insolvent, is authorized to institute pro the Baltimore and Port Deposit railroad, constituting ceedings in bankruptcy against him. Ib.

a part of the road of the defendant, bore to the whole

length of the defendant's road. Ib. CONSTITUTIONAL LAW.

CONTRACT. 1. Tax on receipts of railway company. - The imposi

Argument void for uncertainty. — A written agreetion by the act of 1872, ch. 234, of a tax of one-half of

ment under seal, for the lease of a store for a term cerone per centum upon the gross receipts of all railroad

tain at a fixed rent, contained the following words: companies worked by steam, incorporated by, or under

"The said A, D, (the lessee) to have the preference of authority of the State, and doing business therein, in

renting said property so long thereafter as it shall be lieu of all other taxes, is a valid exercise of constitu

rented for a store.” In an action for the breach of tional power. Such tax is not a direct tax upon the

this stipulation in the contract, it was held that the property of the companies within the meaning of the

stipulation was void and inoperative for uncertainty. 15th article of the Bill of Rights, but a tax upon

Delashmutt, executor, v. Thomas. the franchise of said companies, measured by the extent of their business. State v. Phil., Wilm. & Balt.


Tax payers of a municipality may inroke equity to re 2. Exemption of corporation from taxation by clause strain municipal authorities acting ultra vires. – Tax in charter : what not violation of agreement for exemp payers of a municipal corporation may invoke the tion. - The appellee was formed by a union of the restraining powers of a court of equity, and the court Baltimore and Port Deposit Railroad Company, ex will entertain jurisdiction of their suit against such tending from the city of Baltimore to the Susquehanna corporation and its officers, whenever the latter are river, The Wilmington and Susquehanna Railroad shown to be acting ultra vires, or are assuming or exerCompany, extending from said river to the Delaware cising a power over the property of the citizen, or over and Pepusylvania line, and The Philadelphia, Wil corporate property or funds, which the law does not mington and Baltimore Railroad Company, extending confer upon them, and where such unauthorized acts from the Delaware line to Philadelphia, thus forming may affect injuriously the rights and property of the a continuous line from Baltimore to Philadelphia. parties complaining. St. Mary's Industrial School v. The Wilmington and Susquehanna Railroad Company Broun. was also formed by the union of a company chartered

PARTNERSHIP. by that name, by the State of Delaware, and the Dela

What will constitute partnership. – Where two perware and Maryland Railroad Company, incorporated

sons agree to carry on a trade or business for their by the State of Maryland, and running from the Sus

mutual benefit, one to furnish the money and the quehanna river to the Maryland and Delaware line.

other to perform certain labors and services, and each Section 19 of the aot of 1831, ch. 296, incorporatiug the

to share the profits to be derived from such trade or latter company, provided, “That the said road or

business, they become liable as partners to third perroads, with all their works, improvements and profits,

sons, although in fact no partnership was contemplated and all the machinery of transportation used on said

by the parties themselves. It is not material that the road, are hereby vested in said company * * * and

exact proportion of profits to which each was entitled the shares of the capital stock of said company shall

should appear. Rowland v. Long. be deemed and considered personal estate, and shall


1. Power of municipal corporation as to: appropriby the State's assenting to this law, except upon that ations to benevolent institutions. The mayor and city portion of the permanent and fixed works of said council of Baltimore bas no authority to make appro. company, which may be within the State of Mary priations, by the exercise of the taxing power, to suslaud.” By the consolidation of these companies, the taiu or aid institutions, however benevolent aud charqualified exemption granted by the act of 1831, ch. 296, itable in their character, which do not owe their creto the Delaware and Maryland Railroad Company, ation to the municipal power conferred on the city of became vested in the Philadelphia, Wilmington and Baltimore, and were not created for the city by the Baltimore Railroad Company. Uuder the act of 1872, legislature of the State, as instruments of muuicipal ch. 234, a tax of one-half of one per centum was im- administration, but which are separate and distinct posed upon the gross receipts of the Philadelphia, Wile corporations, composed of private individuals and mington and Baltimore Railroad Company in lieu of all managed and controlled by officers and agents of their other taxes. In a suit by the State to recover the own, and over which the city has no supervision or tax thus imposed, it was held, 1st. That under control, and for the management of which there is no the exemption granted by the act of 1831, ch. 296, it accountability to the city wbatever. St. Mary's Induswas not competent for the legislature to impose a tax trial School v. Brown. upon the gross receipts of that portion of the road of 2. Right of governor and mayor to appoint trustees the defendant which was formerly the Delaware and does not make institution a municipal agency.--The fact Maryland railroad. 20. That as there was no exemp. I that the governor of the State and the mayor of the city of Baltimore each appoints, every two years, three 2. Acts of injured party releasing other from liability. persons to represent the State and city in the board of - Where wrong is done by the obstruction of a milltrustees of the St. Mary's Industrial School for Boys race, it is the duty of the party injured to avoid the under the amendment of its charter, by the act of 1874, consequences of such wrong as far as he reasonably ch. 288, in no manner changes the nature of the insti can. If, by labor, or a reasonable outlay of money, he tution, nor makes it a municipal agency. The fact can stay or avoid the consequences of the wrong, he that the governor of the State is empowered (act of should do so. All consequences resulting from his 1870, ch. 391) to appoint ten, and the mayor of the city own willful failure or gross neglect to use timely and of Baltimore five of the directors of the Maryland In reasonable precaution to prevent an extension or industrial School for Girls, the board being composed of crease of the injury, should fall upon himself. Ib. thirty, does not put the State nor the city in such 3. When notice not necessary before action brought. relation to the corporation as to make it either a public, The placing an obstruction in a mill-race is an infringeState or municipal institution. Ib.

ment of the owner's absolute right of property, and 3. Nor does the fact that the city owns ground on the continuing such obstruction is equally an infringewhich institution is located.--The mere fact that the ment of the right, and this the party placing the obstruccity of Baltimore may own the ground upon which the tion in the race is bound to know at his peril, and he building is erected, or that the city, in its deed to the has no claim to notice from the owner to remove the institution, has reserved certain privileges in the use obstruction before action brought. Ib. of the hall, as part of the consideration for the grant, cannot constitute the Maryland Institute for the promotion of the mechanic arts, a municipal agency. Ib.

BOOK NOTICE. 4. Limit of municipal powers.-Municipal powers are delegated, and depend upon legislative charter or grant;

New HAMPSHIRE REPORTS, VOL. LVII. and the corporate authorities can exercise no power

Reports of Cascs in the Superior Court of New Hampshire. which is not, in express terms, or by fair and reason Daniel Hall, State Reporter. Vol. LVII. Concord :

Josiah B. Sanborn, 1877. able implication, conferred upon the corporation. Ib.

5. What municipal corporation may not do.-Muni- THE New Hampshire Reports are among the least cipal corporations can levy no taxes, general or special, I valuable of State reports. Very seldom does a upon the inhabitants or their property, unless the case of great importance appear in them, and the power be plainly and unmistakably conferred. The weight attached to the decisions of the court of last authority must be given either in express words, or by resort in that State does not appear to equal that necessary implication, and it cannot be collected by given to the determination of like courts in the addoubtful inferences from other powers, or powers re joining States. Yet the bench and bar of New lating to other subjects, nor deduced from any consid- | Hampshire contain as able lawyers as are anywhere to eration of convenience or advantage. While the city be found; indeed some of the very foremost of the of Baltimore has ample power delegated to it to pro bar of America own that as their native State. vide for the foundlings, the insane, the indigent infirm It is probable that the habits of the people of and helpless, and for the correction of the vicious and the State are not favorable to litigation, and the vagrant portions of its population, such provision when judges have not enough material to enable them to made must be under the control, and subject to the produce opinions which will be of interest to the world supervision, of municipal authority. Ib.

outside. The present volume, which is an average one, TRIAL

contains few cases of general value. Among them we Criminal trial: jury judges of law and fact: instruc

notice ouly these worthy of mention. Rowell v. Rail

road, p. 132. A statute made railroad companies liable tion of court. — The jury, iu the trial of criminal cases,

for damage caused by fire or steam escaping from being the judges of law as well as of fact, are not

their locomotives, and gave them, respectively, an inbound by any instruction given by the court. They

surable interest in property exposed along the line of are at liberty to find a verdict in direct opposition to the instruction. In the trial of criminal cases the

their roads. Held, in an action for injury done

by fire from a locomotive, that the doctrine of concourt may advise the jury as to the law aud legal effect of the evidence, but is not bound to do so, and being a

tributory negligence did not apply. Golding's Petition, matter within its discretion, its refusal to do so cannot

p. 146. An infant cannot execute the office of judge, be reviewed on appeal. Broll v. State of Maryland.

and the office of justice of the peace is a judicial

office. Thompson v. Smith, p. 306. A coffin and grave WATER-COURSE.

clothes purchased by defendant for his mother-in-law, 1. Action for obstructing mill-race; negligence not who died a member of his family, held necessaries so gravamen of.- Iu an action for obstructing the race as to charge a trust fund. King v. Bates, p. 446. A leading to the plaintiff's distillery by throwing or plac conditional vendee of property holds it as bailee for ing therein, or by cutting and allowing to fall therein the vendor. Brandon National Bank v. Hatch, p. 460. trees, branches, logs, stumps, brush, chips, stakes, When the defendant has been properly arrested upon leaves, etc., whereby damage accrued to the plaintiff, civil process the subsequent commencement and peuthe question is not whether the defendant has acted dency of proceedings in bankruptcy by or against him with due care, but whether his acts have occasioned furnishes no ground for his discharge from arrest. the damage complained of. If the acts complained of Watson v. Elliot, p. 511. The doing of an act which the were done by the defendant, or by his agents or serv- defendant was obliged by law to do cannot be pleaded ants in the course of their employment, they were as a satisfaction. Tyler v. Flanders, p. 618. Hearsay unlawful invasions of the plaintiff's rights of property, in regard to the birthplace of a deceased person, is and it matters not that they were done without negli- not admissible unless it comes from the relatives of gence. Negligence is not the gravameu of the action. such person. The reporting is fairly done, and the Lawson v. Price.

volume is well printed and bound.


make the law. He gave the decision, because he found

the law already made — made by general, though tacit. THE following decisions were handed down on Tues

consent. The judge merely recognized and declared 1 day, December 4, 1877:

the law. If he had not found it existing, he would Judgment affirmed, with costs - Davison v. Asso

have refused to act upon such a rule, as was the case ciates of the Jersey Company; Cobb v. Knapp; Ma

with Lord Abinger. There are, moreover, many legal rine Bank of Buffalo v. Fiske; Carrington v. Ward;

maxims, the observance of which depends on no (ockroft v. Muller.- Order affirmed, with costs

penalty which can properly be said to be attached to The People ex rel. (ooke v. Wood; New York Guar

the breach of them, but on the voluntary observance anty and Indemnity Co. v. Roberts.-- Appeal dis

of them by those intrusted with the administration missed, with costs – The People ex rel. Siebrecht v.

of the law. As for example, that an assignee generClancy; Waring v. Somborn.- Judgment reversed

ally takes no better title than his assignor; that a and new trial granted, costs to abide event- Booth 1.

married woman cannot contract so as to render herself Kehoe.- Order of General Term and Special Term

personally liable; and almost innumerable other genreversed and motion granted, with costs in Supreme

eral rules of the highest importance." Court and this court to be paid by plaintiff to Thompson – Verdin .v. Slocum (Thompson, purchaser, appel

The London Standard thus speaks of the bar in Ruslant). - Motion granted, on payment of $10 costs of motion and $25 costs of argument, and upon plain

sia: The bar is to this day far behind in its standard tift's stipulating to submit upon printed briefs if re

of professional honor and dignity. A system obtains spondent consents thereto - Merwin 1. Star Fire In

of bargaining direct with the client on the payment surance Co.

by results" principle. In criminal cases the prisoner will agree to pay his counsel three or four times as

much if he secures him an acquittal, and the counsel NOTES.

takes good care to get a large part of this money in ANOTHER addition to the list of legal serials has

advance. A barrister will even descend to frightenA just made its appearance. It is published by

ing his client by exaggerated statements of the danMessrs. E. B. Myers & Co., of Chicago, and is entitled

ger he is in; and, further, will not scruple to demand, The Chicago Law Journal. The first number contains also in advance. d

also in advance, payments for “secret purposes" — only opinions in cases determined by various courts in

that is, for bribing influential officials. Indeed, the Illinois, with notes by the editor to the cases deemed

bar in Russia is mercenary and rapacious; and, as the important. The purpose of the publisher, as an- | division of duties recognized in England between the nomiced, is to give the opinions of the Appellate and

solicitor and the barrister is not known in Russia, Supreme Court of Illinois, the important opinions of

sharp counsel are brought face to face with their unthe Federal courts sitting in that State, and the lead-||

happy clients, and take the measure of their means ing cases of the United States Supreme Court. Each

and ignorant credulity. The barrister regulates his number is to contain 48 pages, and a number is to ap

fees in much the same way as an advertising quack pear once in four weeks, or oftener if necessary. The

doctor would do, and carries on the action or cure in

the lowest commercial spirit. - During the hearing notes. The annotations appended to several of the

of a case in the New Zealand Supreme Court recently, cases seem to have been carefully prepared, and we

one of the jury suddenly became insane and was on believe they will be found of considerable practical

the same day placed in an asylum. - In the city of value to the profession, in Illinois especially.

London Court during the past year there were 19,023

suits instituted. The manner in which a great proportion of our laws came into being is well illustrated in an essay read by : It is not often that a convicted criminal who has no Prof. Barbeck of Cambridge, England, before the ground of error to appeal upon can have his case tried Antwerp congress. He said, “An attention to the over again before a more lenient jury, yet such has history of law will, I think, further show that laws been the good fortune of three men, named Greenwere established before penalties were invented for wood, Wild and Jackson, who were convicted at the enforcing them, and that a penalty was exacted, Liverpool Summer Assizes of a criminal assault upon because a law had been broken, as a consequence of a woman — known as the Townley Park outrage --- and a breach of the law; not, originally at least, as a part sentenced by Mr. Justice Hawkins each to ten years' of the law itself. Take, for example, the rule of the penal servitude. Subsequently three other men were road, I believe no trace of the existence of such a rule | indicted and tried for the same offense at the Mana hundred years ago can be found. It originated inchester Assizes. In the interval between the two no command of a political superior, nor in any com- | assizes public opinion in Lancashire was much excited mand at all. About fifty years ago, if I remember on the subject, and a considerable amount of evidence rightly, the existence of the rule was denied by Lord was forthcoming tending to show that the three men Abinger, when chief baron of the Exchequer. It gath- | tried at Liverpool had been wrongly convicted. On ered strength because convenience demanded that the second trial, which took place before Mr. Justice there should be such a rule when thoroughfares became Lush, the convicts were called as witnesses, and the crowded. The rule required two carriages meeting | result of their evidence and the statements of other each other to keep their left side of the road. And wituesses was that the jury expressed an opinion not the rule became at length so well known in England, only that the accused arraigned before them were not and so generally observed, that when an accident oc- guilty, but also that no offense of the kind imputed curred in consequence of a carriage taking the right had actually been committed, and Mr. Justice Lush hand instead of the left, the owner of tbat carriage undertook to bring the matter before the Home Secrewas held liable to make good any damage done to the tary. He did so, and the Secretary has recommended other. The judge who first gave this decision did not the pardon of Greenwood, Wild and Jackson.

The Albany Law Journal.

All communications intended for publication in the validity, we presume, being doubted (Rule 76); the LAW JOURNAL should be addressed to the editor, and the provision of the present Rule 87, requiring the court name of the writer should be given, though not necessa

to order a reference to take proofs in uncontested rily for publication.

divorce suits, is omitted (Rule 78). By Rule 85, a Communications on business matters should be addressed to the publishers.

receiver appointed in supplementary proceedings applying for leave to sue must present the written request of the creditor in whose behalf he was appointed for the bringing of such action, or else give

security for costs; in other cases he must show that ALBANY, DECEMBER 15, 1877.

the estate for which he acts is sufficient to pay costs

in case of an adverse decision or else he must give CURRENT TOPICS.

security. Rule 80 makes an important and proper THE general rules of practice adopted pursuant to regulation: Except in litigated cases, where refer1 section 17 of the new Code by the convention ence is made by consent, no person, unless he is an of justices and judges, held in this city on the third attorney in good standing, can be appointed sole of October last, have been promulgated. They are referee for any purpose, nor shall a person be apto take effect on the first day of January next. pointed who is the partner or clerk of the attorney While the greater number of them are reproduc or counsel making application, “or who is in any tions of the rules now in force, changes of consid- | way connected in business, or who occupies the erable importance have been made. Nearly all of same office with such attorney or counsel.” Rule 88 the changes are in the direction of a more strict and limits the authority of receivers in the appointment careful practice, and will meet the approval of the of counsel, and Rule 89 prescribes that the affidavit profession generally. A single one, however, seems | necessary to procure an order for the examination to us not called for, and we are confident that its of a party before trial shall specify the facts, showenforcement will be productive of more evil than ing compliance with subdivision 4 of section 872 of good. We refer to Rule 20, requiring the plaintiff the new Code. In other respects the rules are subapplying for an order for publication, under section stantially similar to those now in force. 438, subd. 1, of the Code, to show that he has used due diligence to make personal service. The rule

Section 439 of the new Code gives considerable is proper enough in its application to subdivisions 4,

trouble to those having occasion to apply for orders 5 and 7, but why should plaintiff be required to show

for publication in actions of foreclosure. By it the that he has used due diligence to serve within the

plaintiff is required to present to the judge a veriState upon a foreign corporation or a non-resident

fied complaint. As the only verified complaint in natural person? The rules are ninety-one in num

the case is usually on file in the clerk's office, having ber, six less than the present number, but this

been placed there at the time the lis pendens was change is largely due to the consolidation into sin

filed, the applicant is compelled either to take the gle rules of provisions now separated into two or

judge to the clerk's office or procure an order for more. Very few matters touched upon in the

the production of the complaint in court. - The present rules have been omitted, and the new ones

difficulty can perhaps be obviated by making out in embrace several subjects not heretofore provided

the beginning duplicate complaints, both of which for.

are sworn to, but this involves trouble, and someThe changes of importance made by the new rules

times delay, which seems needless. may be summarized as follows: Examinations for admission to the bar are required to be conducted On Tuesday the contract for publishing the Court both orally and in writing (Rule 1); personal serv- of Appeals Reports for the ensuing three years was, ice of a summons cannot be made by a person | as usual, awarded to Mr. A. Bleecker Banks, he under eighteen years of age, and, in divorce cases, being (though not as usual) the lowest bidder therea sheriff serving the summons may be examined by for. The bids or proposals were to print, bind and the court as to his knowledge of the identity of the keep on sale the New York Reports at the following defendant (Rule 18); the provisions in Rule 31 of price per volume: Mr. Banks, 48 cents; C. Vanthose now in force are essentially altered, especially | Benthuysen & Son, 74 cents; Weed, Parsons & Co., by the omission of the one making certain acts on | 90 cents; Gould & Son, 94 cents; Little & Co., the part of an attorney or party a contempt (Rule | $1.10; John D. Parsons, Jr., $1.15; Baker, Voorhis 25); the referee to take proof and report upon the & Co., $1.45. These reports seem to have a peculiar interests of parties in partition actions shall be se fascination for publishers, as they seem willing and lected by the court (Rule 70); the provision in the anxious to publish them at ruinously low prices. A present Rule 85, limiting allowances upon a life volume such as required by the contract cannot estate to one-half the principal sum, is omitted, its | possibly, under the most favorable conditions, bo

Vol. 16.- No. 24.

produced for less than from $1.30 to $1.50. The by Justice Hunt, who now sits on the right. The loss on 3,500 copies, of each four volumes a year, at other judges then rose and bowed to their colleague, 48 cents a volume, is something of an item, even and the regular business of the court was resumed. for a law bookseller. This is on the supposition that the publisher adheres to his contract — a supposition

We mentioned last week as one of the advantages that has few facts in its favor.

of the French judicial system the unanimity of the

decisions of the Appellate Courts. This unanimity The Irish Lord Justice of Appeal has delivered is probably rather apparent than real, the dissenting another speech denunciatory of the Irish Reports, judges in any given decision making no manifestain which he abuses those unfortunate volumes in his tion, considering it better that the conclusion most vigorous style. The occasion of his remarks adopted should not be weakened by making public was the delivery of judgment in a case which had the want of harmony in the court adopting it. A been determined in the Court of Appeal. He re- very different method obtains here. The dissenting fused to publicly give the reasons for his judgment, judges feel called upon to write out at length the stating that, if he did so, he took the “risk of see reasons which induce them to disagree with their ing those reasons laid before him by and by in print, brethren, and their opinions are usually published, in a guise of parody," misleading to the parties together with the prevailing ones. The result is, litigant and discreditable to the court. The whole that the force of the decision, as a precedent, is very controversy between the Lord Justice and reporters much weakened, those interested in cases involving was thoroughly aired, and the facts, as they ap- a similar question saying that it is not the deterpeared to him, stated. The animadversions of the mination of the court, but of a part of it only. Lord Justice upon the reports are said by those who Therefore, when there is a change in the individual know to be deserved, and the examples he gives of membership of the court, attempts are made to proerroneous reporting seems to justify all he says. cure a reversal of the rule previously established, Fault is found, however, with his refusal to make and too often these attempts are successful. Bepublic his reasons for judgment in the cases decided sides, the circunstance that a court was divided by him, the Irish Law Times “impeaching" the act | upon a question it has determined, encourages sub“as highly unconstitutional," "and contrary to a sequent appeals thereto in like cases, the litigant settled principle of our judicial constitution," and hoping that by chance some of the judges who voted protesting against any member of the bar applying with the majority will, in his cause, change their to his lordship in private for those reasons, a course mind. We would not, indeed, bave the law as dewhich he requests all those interested in the adjudi- termined by our courts, like that of the Medes and cated cases to follow. In connection with the mat- | Persians, absolutely unalterable, but it ought to be ter, the Lord Justice made some statements which changed only for the most cogent reasons, and as a many of the junior bar considered as reflecting upon step toward stability, we would suggest the disthem, and which they resented with becoming spirit. continuance by dissenting judges of the practice of In every way Jonathan Christian, as the Irish Law writing opinions, and by reporters of indicating Times calls him, seems to be making everybody about dissentients. him angry and uncomfortable.

NOTES OF CASES. Associate Justice Harlan was formally inducted THE validity of a marriage between slaves in a into office on Monday last. The proceedings were slave State before the Emanicipation, contracted of an impressive and interesting character. After with the consent of their masters and according to he had taken what is known as the “iron-clad oath" the custom of marriage among slaves, was considin the robing room, the justices formed in procession ered in the case of Minor v. Jones, 2 Bradf. 289. and entered the Supreme Court Chamber, Judge The court held that, if such marriage was contracted Harlan following in the rear, clothed in the judicial in a manner which would be valid if it occurred gown. He halted at the clerk's desk while the others here, it must be adjudged a valid marriage when took their seats. The Court was formally opened, | drawn in question in the courts of this State. This when the Chief Justice announced that he had re- seems to be the only safe rule to follow. A similar ceived the commission of Mr. Harlan as associate question arose in the case of Colston v. Quander, 1 justice, which he directed the clerk to read. After | Va. L. J. 689, recently decided by the Virginia such reading, the Chief Justice said: “The oath Special Court of Appeals. There a free negro marwill now be taken.” Judge Harlan read it in anried a slave woman with the consent of her master. audible tone, holding the paper containing it in one This marriage, when made, was contrary to the exhand, while the other was placed upon the Bible. | isting statute, but the court held that the cohabitaAfter this ceremony was completed, the new justice tion of the parties after such statute was no longer took the seat on the extreme left, formerly occupied | in force validated the marriage, and rendered the

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