Imágenes de páginas

any cask or package containing five gallons or more, pears from their opinions that their attention was without having thereon each mark and stamp re- | called to the provision of section 57. United States v. quired therefor by this act, shall be forfeited to the One Rectifying Establishment, decided in 1869, in the United States."

Northern District of Mississippi, 11 Int. Rev. Rec. 45, Section 25 does not specifically impose the duty upon and United States v. One hundred and thirty-three Casks the rectifier or wholesale dealer of causing or pro- | Distilled Spirits, decided not long after in the Califorcuring the filled casks to be gauged, inspected or nia district, 11 Int. Rev. Rec. 191. The circuit judge stamped. It is made the duty of the gauger to do the in this case bas decided in accordance with the opingauging, inspecting and stamping, but not in terms of ions of Judges Lowell and Knowles, and held that the dealer to cause it to be done. If there was noth section 57 did apply. The rulings of two commising more, it would be clear that any omission of the sioners of internal revenue are to the same effect. rectifier or dealer to act in the matter would not be one dated September 10, 1869 (10 Iut. Rev. Rec. 97), and a cause of forfeiture. Section 96 was, however, un- the other, May 13, 1871 (13 Int. Rev. Rec. 170), and it doubtedly intended to impose upon rectifiers and seems to us that this is the proper construction of the wholesale liquor dealers the duty of doing or causing law. It is true that the clause referred to is found in to be done every thing pertaining to their respective a section of the statute which relates especially to occupations which was necessary in order to enable spirits on hand when the law was passed, but it is geuothers acting under the law to do what was required eral in its terms and broad enough to cover the case. of them. If they failed in this, and there was no other | As was well said by Judge Lowell in the case against penalty provided for the neglect, they were subjected vinety-five barrels of whisky, “ to limit the meaning to the provisions of that section. If, however, by any will not only require us to read act' as if it were other section a specific duty was imposed on them * section,' but to disregard .each,' because there is but which, if performed, would enable the other parties one particular stamp required by this section, and this to act in the proper manner, and a penalty was pre would naturally be mentioned as the stamp required scribed for the omission to perform such duty, they by the section,' or some such expression.” And, were not to be proceeded against under section 96. It again, as is also said by the same judge, “it is was not intended by Congress in that section to add proper and usual that the goods which are not stamped to the already-existing penalties for an offense, but should be forfeited, and it is so provided in respect to to provide for omitted cases only. The object evi cigars and tobacco by sections 70 and 90, but there is dently was to so contrive the machinery of the law no provision for forfeiting unstamped spirits, unless that when one part was set in motion the rest must it be the one in question." follow.

The rules and regulations which the commissioner If, then, it is found that by some other section of of internal revenue is authorized by sectiou 2 to prethe act a penalty is imposed upon the rectifier or scribe cannot have the effect of bringing the case unwholesale dealer as a consequence of the failure of the der the operation of the penalty provided in section gauger to stamp the casks filled on his premises for 96, if it was already covered up by section 57. The shipment, sale or delivery, it may fairly be presumed regulation of the department cannot have the effect that this was the penalty he was to suffer for neglect- of aniending the law. They may aid in carrying the ing to procure the stamping to be done, for the gaug- law as it exists into execution, but they cannot change ing and inspecting under the law are only preliminary its positive provisions. to the stamping. The only neglect he could be charged The judgment of the Circuit Court is affirmed. with under section 96 would be a failure to make known at the proper office that there were on his premises packages requiring the action of the gauger under sec


POLICY-HOLDERS CORPORATORS. tion 25. Now, section 57 provides that if packages of distilled spirits are found on his premises containing

UNITED STATES DISTRICT COURT, NORTHERN DISfive gallons or more each, which do not have upon

TRICT OF NEW YORK, DECEMBER 14, 1877. them each mark or stamp required by the law, they shall be forfeited. This, then, 18 a specific penalty pro- IN RE ATLANTIC MUTUAL LIFE INSURANCE COMPANY. vided for the failure to procure or cause the stamping

A mutual life insurance company in which the policy. to be done on packages of five gallons and upward, and holders were entitled to vote for trustees, and to share it follows the packages wherever found. The un in the profits, was placed in the hands of a receiver

under the State Laws. Subsequently, a trustee of the stamped packages in this case contained each twenty company filed a petition in bankruptcy in the name of gallons or more.

the corporation, and it was adjudged bankrupt. The

receiver applied to have the adjudication set aside. It has been contended, however, that this special Held, (1) that the receiver had a standing in court to provision of section 57 applies only to distilled spirits make the motion ; (2) that the question of the solvency of

the company could not be examined on the motion, and on hand when the act of 1868 was passed. Such seems

(3) that policy-holders of the company were corporators to have been the opinion of Judge Ballard, of the

within the meaning of section 122, chap. 6, title 61 of :he

United States Revised Statutes, and an adjudication in Kentucky district, as reported in the case of the United

bankruptcy could not be made against the corporaStutes v. Thirty-seven Barrels of Apple Brandy, 11 Int. tion, without giving them an opportunity to be heard. Rev. Rec. 136, but since that time, iu 1871, Judge Low | MOTION to set aside an adjudication in bankruptcy. ell, of the Massachusetts district, has decided the | The facts appear in the opinion. other way. United States v. Ninety-five Barrels of WALLACE, J.-Upon the application of the AttorneyDistilled Spirits, 14 Int. Rev. Rec. 6. Judge Knowles, General of this State, after the opposition on behalf of the Rhode Island district, afterward followed this of the Atlantic Mutual Life Insurance Company, that ruling of Judge Lowell. United States v. Thirty-four corporation was restrained from the further prosecuBarrels Distitled Spirits, 13 Int. Rev. Rec. 188. Other tion of its business by a decree of the court having able district judges have decided that section 96 did jurisdiction in the premises, and a receiver was apapply to this class of omissions, but it nowhere ap- I pointed by such decree, who has filed his bond, taken

possession of the assets of the company and continues | after which the whole profits shall be divided among in the discharge of his trust. The proceeding was con the policy-holders. ducted conformably to chapter 902 of the Laws of 1869. While policy-holders are not holders of scrip, which

Subsequently a petition in bankruptcy was filed in evidences their right to an interest in the assets of the this court in the name of the corporation by a trustee | corporation, and while their interests are not transthereof, upon which the corporation was adjudicated a ferable, like those of the stockholders, in all other bankrupt. The receiver now moves to set aside such respects their position toward the corporation is the adjudication, alleging that the proceedings in bank same as that of the stockholders. ruptcy were not in conformity with the baukrupt law Neither are personally liable for assessments, or and that the corporation was not insolvent.

otherwise, beyond the sum fixed by contract with the First — Among the several questions presented is one company; the stockholders' liability being that as. relating to the right of the receiver to be heard. I do sumed in their subscriptions for stock, and the policynot doubt that he has a sufficient standing in court for holders' that assumed in the policies issued to them. the purpose of the motion. He is in possession of the Both have a voice in the management and a share in assets of the bankrupt, and if he chooses to relinquish the profits, the extent of which is not material in ashis lien upon the funds, can doubtless prove a claim

certaining their legal status. There is a community, against the bankrupt for his expenses in executing his

though not an equality of interest in the assets and of trust, and for his commissions or services.

control in the management which constitutes both Second - Whether or not the corporation was insolv

classes members of the corporation. ent is a question not open on this motion. The de

I think it is the intent of the section of the Bankcisions are, that in the case of an individual who has

rupt Law, under which proceedings in bankruptcy by been adjudicated a bankrupt on his own petition, the

corporatious are authorized, that the voice of all who adjudication cannot be assailed by proof that he was

have a right to participate in the management of the not, in fact, insolvent; that if he owes debts and re

corporation and to share in its assets, shall be heard sides within the jurisdiction, as specified in section

and obeyed before an adjudication, which is essen5014, chapter 2, title LXI of the Revised Statutes of

tially a dissolution of the corporation, shall be obthe United States, the court has jurisdiction to enter

tained. tain his petition and adjudicate him a bankrupt; that

It is ordered that all proceedings in bankruptcy be the filing of the petition is per se an act of bankruptcy,

set aside. and so declared by the section in question, and the

Henry Smith, N. C. Moak and Wm. C. Ruger solvency or insolvency of the debtor is not material.

for the motion; Amasa J. Parker, Geo. L. Stedman There is no distinction in this regard between pro

D. J. Norton opposed. ceedings by individuals and by corporations.

Third - The serious and doubtful question in my UNITED STATES SUPREME COURT ABSTRACT. view is whether the policy-holders in the corporation

CONTRACT. are corporators within the meaning of section 1:22,

What necessary to constitute implied contract with chap. 6, title LXI of the Revised Statutes of the

United States.-To constitute an implied contract with United States. If they are, not having been notified the Cuited States for the payment of money upon of the meeting called for the purpose of authorizing

which an action will lie in the Court of Claims, proceedings in bankruptcy, and the proceedings not

there must have been some consideration moving to having been authorized by the vote of the majority of

the United States, or they must have received the the corporators, the filing of the petition was not the

money charged with a duty to pay it over, or the act of the corporation within the section, and a condi

claimant must have had a lawful right to it when it tion essential to the jurisdiction of this court does not

was received, as in the case of money paid by mistake. exist; in which case, although the proceeding might

No such implied contract with the United States arises not be assailable collaterally, the adjudication may be

with respect to moneys received into the treasury as attacked in the proceeding itself, by a motion to set

the proceeds of property forfeited and sold under the it aside.

confiscation act of July 17, 1862. Judgment of Court A corporator is one who is a member of the corpora

of Claims affirmed. Knote, appellant, v. United States. tion, one of the stockholders or constituents of the

Opinion by Field, J. body corporate.

DEFENSE. The charter of this corporation provides that every Of orders of military authorities in action for trespass. stockholder shall be entitled to one vote for trustee,

-In this case action was brought against defendant for each and every share of the capital stock standing below for trespass in cutting wood upon the land of in his or her name on the books of the company, and

| plaintiff below. As a defense it was shown that the every holder of a policy of the company for the whole wood was cut by defendant as an authorized agent of term of life, or an endowment policy for five hundred the United States for military purposes under the didollars and upward, and which has been in existence rection of the military authorities, etc., and defend. for one full year, shall be entitled to one vote for each ant also pleaded an order reading thus: “Kuoxville, five hundred dollars so insured.

Tenn., May 9, 1865. James S. Beard is hereby authorThe charter also provides that in each year, after ized to cut wood for the U. S. M. R. on the lands of placing to the credit of the stockholders seven per Joseph Burts, John Lyle, Dillard Love, by order of cent on the amount of the capital, and a further sum the superintendent. D. V. Brown, Wood Agent,'s of one-fifth the residue of the profits as a reserve fund Held, that the order was admissible, and furnished a for retiring the capital stock, the remaining four-fifths complete defense under the provisions of the acts of sball be placed to the credit of the policy-holders, who Congress of May 11, 1866, and March 3, 1863, and the to that extent shall participate in all the profits of the fact that it was informal did not render it inetfective company until the retirement of the capital stock, | as a defense. Decree of Supreme Court of Tennessee

reversed. Beard, plaintiff in error, v. Burts. Opin- Claims affirmed. Knote, appellant, v. United States. ion by Strong, J.

Opinion by Field, J.

What will amount to, in instituting equitable action to

Grant by Congress to States for school purposes : conset aside judgment for fraud.–The authorities of a

| struction of act authorizing formation of State governcounty filed a bill in equity to enjoin a judgment

ment in Wisconsin : grant of lands occupied by Indians which it was claimed had been procured by the fraud

under treaty.- By the act of Congress of August 6, and conspiracy of the judgment creditors and the

1846, authorizing the people of the territory of Wiscounty clerk and treasurer upon forged county war

consin to organize a State government, it was provided, rants. Upon the 5th of September, 1870, when it was

among other things, upon the performance of certain known that there were a large number of spurious

conditions, which were complied with, “that section warrants out, the supervisors of the county were ex

numbered sixteen (16) iu every township of the publio pressly notified of the existence of the judgment, and

lands in said State, and where such section has been without making any investigation passed a resolution

sold or otherwise disposed of, other lands equivalent imposing a tax to apply upon the judgment. The tax

thereto, and as contiguous as may be, shall be granted was imposed and a payment was made on the judg

to said State for the use of schools." In an action ment in June following. In that month counsel

between parties respectively claiming title to lands in was employed to investigate in relation to the fraud

a section numbered 16, under patents issued by the ulent warrants, who reported that nothing could be

United States and the State of Wisconsin after such done until the warrants were found, they not being in

act went into effect, held, that by such act, the lands their proper place. In September, 1871, a second tax,

which might be embraced within those sections were applicable upon the judgment, was ordered by the

appropriated to the State. They were withdrawn from supervisors. The warrants were found in the fall of

any other disposition, and set apart from the mass of 1872, and the bill was filed half a year later. There

the public domain, so that no subsequent law authorwas no evidence implicating defendants below in the

izing a sale of lands in Wisconsin conld be construed fraud, by which it was claimed the judgment was ob

to embrace them, although not specially excepted. tained. Held, that the county was guilty of such

All that afterward remained for the United States to laches as to render it not entitled to the relief sought.

do with respect to them, was to identify the sectious Duncan v. Lyon, 3 Jobus. Ch. 356; Marine Ins. Co. v.

by appropriate surveys, etc. They could not be diHodgson, 7 Cr. 336; 2 Sto. Eq.Jur., SS 894-896; Sullivan

verted from their appropriation to the State. Cooper v. v. Railroad Co., 4 Otto, 811; Smith v. Clay, Ainbler,

Roberts, 18 How. Held, also, that the fact that at the 645; Sample v. Barnes, 14 How. 75; Warner v. Packet, id. 584; Crease v. Simms, 5 id. 204; Bateman v. Willoe,

time the act was passed the lands were included within

a reservation which had been set apart for a tribe of 1 Sch. & Lef. 201; Murray v. Graham, 6 Paige, 622; Col

Indians, by a treaty with the United States. The title loway v. Alexander, 8 Leigh, 114; Powell v. Stewart, 17

of the Indians in such case is only that of occupancy. Ala. 719; Riddle v. Barker, 13 Cal. 295. Decree of

The United States retains and may dispose of the fee. United States Circuit Court, Iowa, reversed. Brown,

Johnson v. McIntosh, 8 Wheat. 574, 579, 587; United appellant, v. County of Buena Vista, Iowa. Opinion

States v. Cook, 19 Wall. 563; Clark v. Smith, 13 Pet. by Swayne, J.

201; Jackson v. Hudson, 3 Johns. 375; Veeder v. PARDON.

Guppy, 3 Wis. 462. Judgment of United States Circ. Effect of pardon and amnesty by President's procla

Ct., E. D., Wiscousin, affirmed. Beecher, execulrix, mation, December 25, 1868: do not restore property pre | plaintiff in error, v. Wetherby. Opinion by Field, J. viously confiscated. — The general pardon and amnesty granted by President Johnson, by proclamation,

SET-OFF. on the 25th of December, 1868, do not entitle one 1. Set-off common to all systems of jurisprudence. receiving their benefits to the proceeds of his prop- | Notwithstanding the general rule that all debts not erty, previously condemned and sold under the confis. solvable by their terms in something else are prima cation act of 1862, after such proceeds have been paid facie payable in legal tender money as ascertained by into the treasury of the United States. Whilst a full the acts of Congress, it is a principle of long standing pardon releases the offender from all disabilities im in all systems of jurisprudence, that one debt or obliposed by the offeuse pardoned, and restores to him all gation may be set off or counterbalanced against anhis civil rights, it does not affect any rights which have other, so that while the obligation of both is recogvested in others directly by the execution of the judg nized, both are satisfied in law, and discharged withment for the offense, or which have been acquired by out the payment of any money in either, and this is others while that judgment was in force. And if the done by the courts without the consent of the party, proceeds of the property of the offender sold under and against his will. Barker v. Braham, 2 Blackst. the judgment have been paid into the treasury, the Rep. 869; Mitchell v. Oldfield, 4 Term Rep. 123; Simpright to them has so far become vested in the United son v. Hart, 1 Johns. Ch. 91; Simpson v. Huston, 14 States that they can only be recovered by him through Tex. 481; Merrill v. Souther, 6 Dana (Ky.), 305; Palmaan act of Congress. Moneys once in the treasury can | teer v. Meredith, 1 J.J. Marshall, 74; Davis v. Milouly be withdrawn by an appropriation by law. Kleins burn, 3 Clarke (Iowa), 163. Judgment of Supreme v. United States, 13 Wall. 147; Ex parte Garland, 4 id. Court of North Carolina affirmed. Blount, plaintiff 380; Armstrong's Foundry, 6 id. 709; United States v. ) in error, v. Windley. Opinion by Miller, J. Padelford, 9 id. 542; Armstrong v. United States, id. 2. Set-off wholly within legislative control: judgment. 155; Pargoud v. United States, 13 id. 156; Carlisle v. -The extent to which mutual obligations may be set United States, 16 id. 151. Opin. Attorney-General, vol. off against each other, when no rights of third parties 8, p. 281, Osborn v. United States, 1 Otto, 475; Matter interfere, is wholly within the power of legislative acof Deming, 10 Johns. 232. Judgment of Court of | tion, and to what extent this right of set-off may be asserted against judgments, and what class of obliga- worth $4,000, which he offered to sell to plaintiff's hustions may be so set off, and the mode of doing it, may band for $3,000, if plaintiff would surrender the note. be regulated by the legislature. Ib.

For the purpose of carrying out this agreement, the 3. Statute passed after judgment obtained for bank, al. | note was handed to defendant, who immediately tore lowing noles of bank to be set off against it.-A statute, his name therefrom, and then refused to complete the therefore, as that of North Carolina, passed after the agreement for the sale of the goods. Held, that plainbank or its commissioner had obtained a judgment, tiff was entitled to maintain an action for the conwhich authorizes the defendant to set off against it version of the note, and a demand that the note be the circulating notes of the bank procured after the re-delivered to her was not necessary. Murray v. Bur. judgment, is, as between the bank or its commissioner ling, 10 Johns. 172; Decker v. Mattheus, 12 N. Y. 313; and the defendant, valid, and does not impair the obli Develin v. Coleman, 50 id. 531. Judgment of General gation of the contract sued on, or of the judgment. Term reversed. Powell v, Powell. Opinion by Earl, J. But if the rights of creditors of the bank, or any one [Decided Oct. 9, 1877.] else interested in the judgment, were such that they

PRACTICE. would have a right to have the judgment paid in law

1. In Court of Appeals: when motion denied on ful money, the case would be different. Ib.

ground of laches in making it.-Plaintiff, in June, 1864, TRUSTS.

took an appeal from an order of the Supreme Court Trustee mingling trust moneys with his own funds

reversing a judgment in favor of plaintiff and grantcannot claim to be allowed for losses sustained by pay ing a new trial. In February, 1866, his attorney of ments in Confederate money. - Defendant below, who record died, and no attempt was made to substitute held moneys in trust for plaintiff, mixed them with

another attorney. In May, 1874, the appeal was dishis own, and invested them in his own name, with missed by the Commission of Appeals for want of nothing whatever to indicate an appropriation for the prosecution, under the provisions of Laws 1873, chappurposes of trust. Held, that he could not charge the

ter 9. Plaintiff had no attorney in the action from trust with losses sustained from payments to him in February, 1866, to May, 1877, and during these years Confederate money upon investments made with the

took no steps to prosecute the appeal, nor did he intrust fund. Dashwood v. Elwell, 2 Ch. Cas. 57; Massey

quire after it from 1874 to 1877. Held, that he had v. Banner, 4 Mad.Ch. 418; Wren v. Kiston, 11 Ves. 382; been guilty of such laches as to forbid the granting of McAllister v. Commonwealth, 30 Pemu. St. 538; Stanley's

a motion to vacate the order dismissing the appeal. Appeul, 8 id. 435. Decree of U. S. Circ. ('t., s. D.,

Motion denied. McElvain v. Erie Railroay Co. OpinAlabama, affirmed. Mitchell, appellant, V. Moore. ion per curiam. Opinion by Waite, C. J.

[Decided Nov. 20, 1877.)

2. In Court of Appeals: motion to reinstate appeal COURT OF APPEALS ABSTRACT.

after dismissal and remittitur sent doun.-Where after CONSTITUTIONAL LAW.

an appeal had been regularly dismissed and a remitAppointment of commissioner to act as surrogate un titur sent down, and judgment thereon entered in der 2 R. S. 80, $ 54, not an appointment to a public office. the Supreme Court and execution issued upon the -By an amendment of the Revised Statutes ( R. S. 80, judgment, held, that a motion in this court to rein$ 54) made by Laws of 1830, chap. 320, $ 20, power was state the appeal would not be entertained. The apconferred upon the chancellor, when neither the sur pellant should move in the Supreme Court to have the rogate, first judge, nor district attorney of a county | proceedings there vacated and the remittitur returned could act by reason of the disqualifications imposed to this court to the end that he might make the nioby statute in respect to any will or the estate of any tion to reinstate. Motion devied. Jones v. Adams. intestate, to issue a commission to some suitable per Opinion by Earl, J. son empowering him to act as surrogate. Provision [Decided Nov. 20, 1877.) had been made in the statutes for cases of vacancy in

SURROGATE. the office of surrogate. 2 R. S. 79, ss 50, 54. Held, Decree directing payment of creditor in full before (1) that the provision did not authorize the appoint

final distribution gives no preference.-While a decree ment of a person to fill a vacancy in the office of sur of a surrogate under 2 Revised Statutes, 116, section 18, rogate; (2) that the power of the chancellor in such

directing payment by an executor or administrator of case was transferred to the Supreme Court and its a debt owing by deceased person previous to the final judges by the Constitution of 1846, and Laws of 1847,

distribution, if acted upou by the executor in good chap. 280, § 16; and (3) that the appointment was not

faith, will protect him in case the estate shall prove to a public office within the provision of the Constitu

insufficient to pay the debts iu full; if it remains untion of 1846, art. 6, § 8, prohibiting judges of the Court

executed when the general order for distribution of of Appeals, justices of the Supreme Court, etc., from

the estate among creditors comes to be made it does not exercising “any power of appointment to office."

give the creditor in whose behalf it was issued a right Order below athirmed. In re proving will of Hathaway.

to payment in preference to other creditors so as to Opinion by Allen, J. (Folger, Rapallo and Earl, JJ., entitle him to payment in full if the estate is insuffconcur; Andrews, J., Church, C. J., and Miller, J., cient to fully pay all the claims established agaiust it. dissent.)

In such a case the decree is to give way to the para[Decided Nov. 20, 1877.]

mount authority of the statute providing for equality CONVERSION.

between creditors of the same class, and it is not necObtaining possession of note for purpose of destruc essary to procure such decree to be fornially vacated to tion: when demand not necessary before action.-Plain enable the statute to have effect. Order below af. tiff held a valid promissory note made by defendant, firmed. In re Claim of Thompson. Opinion by Anand payable in ten years, without interest. At the drews, J. same time defendant owned a stock of merchandise | [Decided Nov. 13, 1877.)



Burglary: entering bank at solicitation of detectives in Professor Samuel Tyler, of the law depart

charge. - A defendant, who has entered a bank at the ment of the Columbian Üniversity, Washington, D. | C., died at Georgetown on the 15th inst. He was

solicitation of detectives rightfully in possession with known to the profession through several works writ the consent of the owner, cannot be convicted of ten or edited by him. These works are a biography burglary, no matter what his guilty intent. Ct. App., of Chief Justice Taney, a treatise on Partnership,

Texas, Oct., 1877. Speiden v. State (Texas L. J.). Stephen on Pleading, and Mitford & Tyler's Pleading and Practice in Equity.

Conflict of law: place of contract as applied to note

and mortgage.- A promissory note made in Oregon George W. Rawson, justice of the Supreme

and payable in Scotland is considered made in ScotCourt for the Seventh Judicial District, died at Lyons,

land. Per Field, J. N. Y., on the 13th inst. He began his legal studies in

A mortgage upon real property the office of Hon. Mark H. Sibley, at Canandaigua,

in Oregon, to secure the payment of such a note, is and was admitted to the bar in 1851. In 1859 he was considered made in Oregon, and its validity is to be elected surrogate of Monroe county. In 1864 he was

tested by the laws of such State. Per Field and Deady, chosen special county judge, and was twice re-elected. He was elected to the position of Supreme Court

JJ. U. 8. Circ. Ct., Oregon, Oct. 25, 1877. Oregon judge in 1876, and entered upon the discharge of its and Wash. Trust Ins. Co. v. Rathburn (Ch. L. News). duties at the commencement of the present year. The Contributory negligence : party acting under the direcsickness with which he died attacked him while he was

tion of the company's servant not guilty of.– F. called holding the Wayne Circuit on the 12th inst.

with his team at defendant's depot for freight. The In Harvey's Reminiscences of Webster just company's agent directed him to a position at the stapublished, a meeting between Webster and Pinckuey tion within a few feet of the track, informing him that is given in the words of Mr. Webster himself. It took

no train would pass for half an hour. A train came place after an argument before the Supreme Court, the first in which Webster had been opposed to Pinckney

within five minutes, and one of his horses was injured. and in which the latter had been over-bearing and in Held, that he was not guilty of contributory neglisulting. Says Mr. Webster: "Mr. Pinckney took his

gence. Sup. Ct., Pennsylvania, Oct. 29, 1877. Allewhip and gloves, threw his cloak over his arm and began to saunter away. I went up to him and said very

ghany V. R. R. Co. v. Findley (Pittsb. L. J.). calmly, ('an I see you alone in one of the lobbies ? Contributory negligence : leaving passenger car. – A He replied, “Certainly.' I suppose that he thought I passenger, leaving his seat in a passenger car (there was going to beg his pardon and ask his assistance. We passed into one of the ante-rooms of the Capitol. I

being an abundance of room), while the train is in looked into one of the grand jury rooms, rather re motion and going into the baggage car, where he is inmote from the main court-room. There was no one jured by falling baggage, upon the car being overin it, and we entered. As we did so I looked in the

turned, is guilty of contributory negligence, and no door and found there was a key in the lock; and, unobserved by him, I turned the key and pnt it in my

action lies for the injury. Sup. Ct., Illinois, Oct. 17, pocket. Mr. Pinckney seemed to be waiting with some 1877. Peoria and R. I. R. R. Co. v. Lane (5 Cent. L. astonishment. I advanced toward him and said: J. 402). “ Mr. Pinckney, you grossly insulted me this morning in the court-room, and not for the first time either. In

Eminent domain: private property cannot be taken deference to your position, and to the respect in which for use of private persons: gold mining company: minI hold the court, I did not answer you as I was tempted ing a public object.-Private property cannot be taken to do on the spot.' He began to parley. I continued:

for the exclusive use of private persons, even though • You know you did ; don't add another sin to that; don't deny it; you know you did it, and you know it

just compensation be provi led therefor. It is compewas premeditated. It was deliberate; it was purposely tent for the legislature, in the exercise of the right of done; and if you deny it, you state an untruth. Now,

eminent domain, to grant to a gold mining company I went on, “I am here to say to you once for all, that you must ask my pardon, and go into court to-morrow

the right of way to construct its ditch or canal over morning and repeat the apology, or else either you or the lands of others, for the purpose of bringing water I will go out of this room in a different condition from to the mines, due provision being made for compensathat in which we entered it.' I was never more in earnest. He looked at me and saw that my eyes were

tion therefor. The object, to wit: the mining of gold, pretty dark and firm. He began to say something. I

is a matter in which the public is interested. Sup. Ct., interrupted him. “No explanations,' said I, admit Georgia, Nov. 21, 1877. Hand Gold Min. Co. v. Parker. the fact, and take it back. I do not want another

Former conviction : when not bar to subsequent proseword from you, except that. I will hear no explanations; nothing but that you admit it and recall it.' He

cution.--A plea of former conviction before a justice trembled like an aspen leaf. He again attempted to of the peace for simple assault and battery is no deexplain. Said I: There is no other course. I have

fense to a prosecution for a higher grade of the offense; the key in my pocket, and you must apologize, or take what I give you.' At that he humbled down, and said

and where it appears that the former conviction was to me: "You are right; I am sorry; I did intend to

fraudulently brought about by the defendant himself, bluff you; I regret it, and ask your pardon?' 'Enough,' it is no bar to a real prosecution for the same offense. I promptly replied, 'now, one promise before I open

Ct. App., Texas, Nov., 1877. Warriner v. State (Texas the door, and that is that you will tomorrow morning state to the court that you have said things which

L. J.). wounded my feelings, and that you regret it.' Piuck Government lands: settler under homestead act no ney replied: 'I will do so.' Then I unlocked the door

right to cut timber.-A person entering land under the and passed out. The next morning, when the court met, Mr. Pinckney at once rose and stated to the court

homestead act of the United States has no right, prior that a very unpleasant affair had occurred the morn

to the issuance of a patent therefor, to cut the timber ing before, as might have been observed by their from such homestead for the purpose of selling or honors; that his friend, Mr. Webster, bad felt grieved

trafficking in the same. U. 3. Dist. Ct., Minnesota, at some things which had dropped from his lips; that his zeal for his client might have led him to say some

Oct. 31, 1877. United States v. McEntee (N. W. Rep.). things which he should not have said, and that he was Infancy: right of mother to custody of female child sorry for having thus spoken. From that day, while

up to sixteen years of age : jurisdiction.-Up to the at the bar, there was no man,' said Mr. Webster', 'who treated me with so much respect and deference as Mr.

age of sixteen a female child has no right to withdraw William Pinckney.'"

| herself from the custody of her father, and in the

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