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IDITY.

PRACTICE

PRODUCTION OF

The fundamental notion of public international declared to be necessary in the case of Jeffreys v. law is the territoriality of sovereignty. In private Boosey. It only remains to say that the elaborainternational law, the student's attention is fre- tions and wealth of reference of this little manual quently directed to exception to this principle – to will render it no less useful to the practitioner than the extra-territorial application of certain laws. its lucidity of exposition will render it attractive This conception of personal laws extending their to the student. - Law Times. empire and authority so as to attach to the person everywhere was first asserted by the Italian jurists of the thirteenth century.

Abstracts of Recent Decisions.

As Sir W. Rattigan formulates the problem, Private International Law

ASSIGNMENT FOR BENEFIT OF CREDITORS---VAL"solves the difficult questions arising from the Where an assignment purports to convey all inquiry, as to what extent the native law is bound

the debtor's property to be equally distributed to respect the foreign law, and the conditions among all his creditors, and the same is accepted by under which the latter must always yield to the the assignee, and by a majority in number, if not in former."

amount, of all the creditors, it cannot be held frauduSir W. Rattigan, in his chapter on the Law of lent on its face, although it contains provisions which Things, says that “the jurisprudence of Continental Europe, following that of the old Civil Law, knows might be objectionable if the assignment were one no other classification of things except mobilia and granting preferences; nor can such assignment be

set aside because of the fraudulent intent of the asimmobilia.” It is significant to observe that this signor, not shown to have been participated in by division into mobilia and immobilia does not occur in the eighth title of the First Book of the Digest

the assignee and the accepting creditors. (Porter

v. James [U. S. C. C. of App.], 67 Fed. Rep. 21.) -de divisione Rerum et qualitate. The French Code

FEDERAL COURTS Civil, adopted in Italy after 1866, certainly does say (art. 516): Tous les biens sont meubles ou immeu

BOOKS AND PAPERS. — The right given by Rev. St. bles." But this is invariably translated : “All $ 724, to compel the production of books and property is either personal or real.” In excellent papers in action at law, is not limited to requiring French dictionaries like Gasc's, the substantive their production at the trial, but the court may, in immeuble has the meaning of real estate, landed its discretion, grant an order for inspection, with estate, or property, but not immovable thing. The permission to copy, prior to the date of the trial. criticism so frequently directed against the Eng-|(Lucker v. Phønix Assur. Co. of Londun (U. S. C. lish division of property, that it designates lease- C., S. Car.], 67 Fed. Rep. 18.) bolds for a term of years as chattles real, and there- FEDERAL COURTS--SUPREME COURT-DENIAL fore personal property, is adopted by Sir W. RIGHTS UNDER FEDERAL CONSTITUTION.— When the Rattigan, who quotes Lord Selborne's dictum in ground of jurisdiction is the alleged denial of a Freke v. Lord Carbery, that land, whether held for title, right, privilege or immunity, secured by the a chattel interest or a freehold interest, is, as a Constitution or laws of the United States, it must matter of fact, immovable and not movable. But it appear that such title, right, privilege or immunity may be observed that the Code Civil goes nearly the was specially set up or claimed at the proper time same length in unduly extending the meaning of the and in the proper way; and cannot be recognized term real property, as the English law does in re- as properly made, when set up for the first time in stricting it to freehold interest in land. Thus, by a petition for rehearing after judgment. (Sayward Code Civil, under certain circumstances, cattle,

v. Denny (U. S. S. C.), 15 s. c. Rep. 777.) pigeons, warren rabbits, and farming implements

MECHANIC'S LIEN-COMMUNITY PROPERTY.--The may be designated real property (cf. art. 524).

husband may contract for the erection of buildings One of the most interesting chapters in this work is the chapter on Immaterial Rights of Copyright, mechanic's liens therefor. (Douthitt v. McCulsky

on the community real estate, so as to subject it to Tradesmarks and Patents. These rights have been slow to receive international recognition. It is (Wash.], 40 Pac. Rep. 186.) much to be regretted that Russia and the United

PRINCIPAL AND SURETY SC BROGATION.-- Where States did not join in the Berne convention. The a surety for the payment of a debt receives a security decision in Routledge v. Low leaves it uncertain for his indemnity and to discharge such indebtedwhether the presence of a foreign author within

ness, the principal creditor is, in equity, entitled to British territory at the time of publication is neces- the full benefit of that security. (South Omaha sary or not in order to enable him to clain the Nat. Bank v. Wright (Neb.), 63 N. W. Rep. 126.) benefit of 5 and 6 Vict. c. 45. Fourteen years pre- TRESPASS ON LAND.- Where a complaint alleges viously to this decision such presence was explicitly a continuing trespass by defendant, through its

OF

agents, on plaintiff's land, and the cutting and con- HORNBOOK SERIES - GLENN'S INTERNATIONAL LAW. version of timber growing thereon, in a single Glenn's International Law is the ninth and latest, count, the entire cause of action is local, and only hand-book of the now widely known Hornbook a federal court within the State in which the land Series, from the press of the West Publishing Co., lies has jurisdiction. (Ellenwood v. Marietta Chair of which series we had occasion to write at some Co. (U. S. S. C.), 15 S. C. Rep. 771.)

length two weeks ago.

The general merit of the series cannot but be en

hanced by the present work, which is a most broad New Books and New Editions.

and admirable treatise of international law, stating

the controlling principles of the law in a readily MANUAL OF PUBLIC INTERNATIONAL LAW. accessible sty!e, and giving copious references to Mr. Thomas Alfred Walker, fellow and lecturer the many ramifications of these principles met with of Peterhouse, Cambridge, Eng., has produced a in actual practice. most valuable and interesting addition to the sub- The author, who is a member of a profession from ject of International Law.

which additions to the number of our text-book The book is designed as a comprehensive general authorities would scarcely be dreamed of, Captain introduction to detailed study of the subject, and Edwin F. Glenn, acting judge advocate of 0. S. such a work the author has certainly produced show- army, deliberately and in praiseworthy contrast to ing moreover a thorough and clear knowledge of so many authors, disclaims any original work in the subject in hand. The style is extremely clear this ancient field of the law, and emphatically states and the treatment careful.

that he has “ freely copied from authorities of reIt should prove a work of great interest not only cognized standing," claiming for his work the to the legal profession or any student, but also to greater merit in a treatise of this kind of careful the general public.

compilation and clear and accurate statement. Published by C. J. Clay & Sons, London, Eng. ; Published by the West Publishing Co., St. Paul, McMillan & Co., N. Y.

Minn,
MUNICIPAL HOME RULE.

AMERICAN ELECTRICAL CASES, Vols. II & III.

The second and third volumes of this valuable Prof. Goodnow, the present occupant of the chair of administrative law in Columbia College, has compilation of cases of a branch of the law the imadded to his already high reputation as an authority felt

, have just been issued by Matthew Bender,

portance of which is only of late beginning to be on administrative law by his latest work, "Munici

Albany, N. Y., being edited by William H. Morrill, pal Home Rule."

the well-known writer on legal subjects. The book is a study in the administration of cities

The wide scope of these volumes makes them of which cannot fail of a wide and favorable reception, unusual merit, embracing as they do, the decisions coming as it does in the midst of the present agita- of the Federal Courts and of almost every State in tion of the subject.

the Union from 1886-1892. The cases in these Published by MacMillan & Co., N. Y. Price, volumes are arranged most advantageously for $1.50.

reference, not being, as usual in such works, placed Hall's INFRINGEMENT OUTLINE.

in chronological order, but grouped together acThis is an extremely brief and succinct outline of cording to the subjects of the decisions. the law of the infringement of patents for inven- In his preface to Volume III, the author comtions (not designs) from the pen of Thomas B. Hall, ments on the rapid increase of adjudications in Esq., of the Cleveland bar, the author of the well-electrical law, especially in the newer field of known works, “Hall's Patent Infringement" and applied electricity by reason of the many new ques" Hall's Patent Estate."

tions arising from the interference of the powerful Mr. Hall has based his “Outline” solely on the currents of power and light companies with the opinions of the Supreme Court of the United States, weaker currents and more delicate apparatus of and the volume is of corresponding value to any telepbone companies. patent practitioner of this country, or any one de- The question as to the rights of abutting owners siring in brief form a short treatise on this branch as affected by the maintenance in highways of of the Patent Law.

apparatus required by users of electricity, occupy For a volume of its size, 86 pages, it contains an an important place in Volume III. unusually large number of references to well-estab- These reports are of the greatest value to every lished cases.

lawyer of the present age of electricity. Published by Banks & Bros., New York and Published and sold by Matthew Bender, Albany, Albany.

N. Y.

THE

should be tolerated here merely because it was The Albany Law Journal. organized in another State. If it were a lottery

company it would be promptly suppressed, ALBANY, AUGUST 10, 1895.

however clear might be its right to do business

in the State of its origin. A State that deCurrent Lopics.

sires to check the spread of monopolistic com

binations has the remedy in its own hands. It [All communications intended for the Editor should be ad- need not allow its people to be imposed on for dressed simply to the Editor of The ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other a day longer than they are willing to be. business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

The law on the subject is very fully set forth

in the opinion of the United States Supreme HE question is being raised in a somewhat Court delivered by Justice Field in the "lead

peremptory way as to the right of a corpo- ing case of Paul v. Commonwealth of Virration owing its charter to another State to do ginia. It is there laid down that as a corporabusiness according to methods condemned by the tion has no absolute right of recognition in any laws of a State in which it has established itself. other State save that of its origin, but depends There is a popular impression that a corpora for such recognition and the enforcement of its tion organized, say, under the laws of New contracts 'upon the assent of other States, it folJersey, has a constitutional right to do business lows that such assent may be granted upon in the State of New York. But what may be such terms and conditions as those States may called the interchangeability of American citi-think proper to impose. They may exclude zenship guaranteed by the Constitution of the the foreign corporation entirely; they may reUnited States does not extend to those arti- strict its business to particular localities, or ficial persons known as corporations. These, they may exact such security for the performbeing the mere creation of local law, can have ance of its contracts with their citizens as in no legal existence beyond the limits of the their judgment will best promote the public insovereignty where they were created. In the terest. The whole matter rests in their dislanguage of the United States Supreme Court: cretion.

It is clearly an anomaly that corporaA corporation “must dwell in the place of its tions should be allowed to do business undiscreation, and cannot migrate to another sover

turbed in States where their charters would be eignty. The recognition of its existence, even annulled were they of domestic origin. If the by other States, and the enforcement of its con

n-laws of any State have been deliberately tracts made therein, depend purely upon the framed to favor the formation of trusts and comity of those States - a comity which is monopolies, or if they are so administered as to never extended where the existence of the cor- protect the existence of such combinations, poration or the exercise of its powers are pre- there is no reason whatever why other States judicial to their interest or repugnant to their should allow their laws to be similarly perpolicy."

verted. This latter statement is not so obviously true One of the first cases decided in England in as when it was written in deciding the case of some years as to the dispossession of the real the Bank of Augusta v. Earle, because it property of one party by another was in Mar. not then common to combine corporations “to shall v. Taylor which was determined by the limit production, stifle competition and mon- English Court of Appeals recently. Lord opolize the necessaries of life." As Mr. Justice Halsbury in writing the opinion of the court Brown remarked in his recent address at Yale, says: the extent to which this has already been car- “So far as the facts found by the Vice-Chanried is alarming, the extent to which it may cellor are concerned, I am not disposed to inhereafter be carried is revolutionary. But terfere with anything he has found. But I there is no reason why a combination in unlaw- cannot concur with him in the inference he has ful restraint of trade, which could not be legally | drawn from those facts. With reference to the formed under the laws of Massachusetts, I origin of this strip of land, 4 feet wide and

VOL. 52 No. 6.

was

owner.

a

user

seems

me

no

80 feet long I do not feel very strongly either but in no sense was there any exclusive possesone way or the other; but, if I were compelled sion, as I read the facts, and the arbitrator there to give a judgment upon it, I think I should found there was no exclusive possession calcuhold that the plaintiff originally possessed it. I lated to make the possession of the land change am afraid I am more influenced perhaps than I so as to put it in him, and dispossess the real ought to be by the exact coincidence of the

But such a piece of land and measurements. I do not know whether there such

to to have was or was not originally a drain there, and Irelation at all to such a thing as we are now place no reliance at all upon any supposed pre discussing. The true nature of this particular sumption that arises from the position of the piece of land is that it is inclosed. It cannot hedge and the ditch. I do not know whether be denied that, according to the ordinary it was a ditch or not. Very likely it was a course of procedure, the person who now says small grip formed by the lie of the land, and he owns it could not get to it. I do not deny that the wash of the rain water rushing down grad- he could have crept through the hedge, or, if it ually enlarged it until it became what people had been a brick wall, that he could have climbed agreed to call a ditch ; but the undoubted fact over the wall, but that is not the ordinary and remains that at one period the plaintiff's prede- usual mode of access. That is the exclusion--the cessor in the title did cover it in and did make dispossession-which seems to me to be so ima drain, although that fact also is qualified by portant in this case. It is true that for a certhis, that, in making the drain, it was made a

tain number of years say fifteen years drain for both houses, and one perhaps might which is, I think, the longest period of which infer that it was done at the joint instance of there is actual evidence, the owner of the adboth parties, as it undoubtedly did drain both joining garden (perhaps the original owner of houses. We do not know anything at all about this piece of land) was in the habit, by his agent, the facts except that it was done by the plain- of going into the other garden and clipping the tiff's predecessor in title, and it might possibly hedge. But the very same witness who proves have been done by him at the expense, or with that, proves that he had at some time deposited the assent, of the defendant's predecessor in the clippings on the midden belonging to the title. But, coupling the description on the de- defendant, and that sometimes he left them at fendant's conveyance with the undoubted fact other parts of the ground; but, as was very that it was the plaintiff that in fact did cover candidly and fairly admitted, he was doing acts in this thing which has now become a sewer (I which by no possibility could be acts done as of hardly know how to describe it), the inclination right. Neither, as far as I can see, was there of my opinion undoubtedly is that it did once any right to go through the gate. belong to the plaintiff. But then the question fact that he could have got through the hedge arises whether, under the Statute of Limitations, indicates, to my mind, that there could have the occupation of it since that time has not been no right to go through the gate, which adbeen such as to exclude the plaintiff and to mittedly belongs to the present defendant. Then give it to the defendant. I come to the con- are we to infer, although it is accompanied by clusion that it has. It is impossible, I think, to a request to be allowed to go through the gate speak with exact precision about the degree of the present defendant, accompanied by acts of possession or dispossession that will do which undoubtedly are done by permission, unless you have regard, as Cotton. L. J. said in that there is still a possession in the plaintiff Leigh v. Jack (ubi sup.), to the nature of the which entitles him to say he has never been disproperty. In that case, which the Vice-Chan- possessed, because he did clip this hedge? I cellor himself quoted, the person who set up a confess that does not appear to me to be a reapossession inconsistent with the rights of the sonable inference. When one comes to see what person to whom the property originally be the property of the defendant is — that part of longed, had a strip of land on either side of an this piece of land is covered with cobble stones intended road, and he incumbered that in- and made a part of the yard; that over part of tended road with various articles of his trade, I it trees have been planted; that over another

The very

ment.

part of it a rose garden, or a portion of a rose

The unions are active, and often aggarden, has been made; when one considers the gressive, bodies; they control and direct the continuity of the pathway which is cindered and operations of numerous agents, and support treated as part of the defendant's garden, it their actions by the aid of the large funds at seems to me it is about as strong an aggregate their disposal; but they have no legal corporate of acts of ownership as you can well imagine for existence, and, consequently, no general legal the purpose of excluding the possession of any responsibility. No successful litigant can hold body else. I think the letter from the solicitors their funds liable for costs or damages. Thus in 1893 does possess an importance which I had the union embarks on litigation with a limitanot at first attached to it, because it is plain that tion upon its risks which no other litigant enfrom whoever the solicitors who wrote that let- joys; it may be guilty of maintenance, as a soter got their information, the belief on the part ciety, without responsibility, and its officers and of the plaintiff and his advisers was, that the servants, acting in the scope of their employhedge was the boundary and that the com- ment, may commit torts without entailing any plaint was of injury done to the hedge. liability upon it. Its actual existence as an inTheir belief would not perhaps be in itself very stitution is, of course, perfectly well known, important, but I think their belief reflects light and is, for certain purposes, recognized by law. upon what must have been the character of the Its control over its agents, who are often indeed entering into the defendant's garden from time its directors, and its normal acquiescence in or to time during the fifteen years relied on. If

concurrence with their acts, not only in cases the plaintiff believed the hedge was the bound where these are legal, but also where they ary he would naturally do what I have a strong chance to overstep the limit of the law, are nosuspicion he did do, namely, get permission to go torious. But, unlike every other principal, it through the gate and also to throw the clippings is not answerable for the acts of its agents, beupon the midden.

Under these circumstances cause it is not a corporation, and has no legal I come to the conclusion that, whatever may personality. have been the original state of the title, there "The anomalies of this position are not, it has been complete dispossession of the plaintiff appears, the result of accident. They were dehere, and that, subject to the right, which is also signed when the unions were formally legalized left in obscurity, for the joint occupation and by the Trade Union Act, 1871, by the promotuser of the drain pipes themselves for the pur- ers of the act on the workmen's behalf, for the pose of carrying the drainage from both houses, protection of the union funds. The act, in the defendant is now entitled to the possession providing that the purposes of a trade union of this piece of land in dispute.

shall not be deemed to be unlawful merely be

cause they are in restraint of trade, expressly It will be of interest in this State, as well as

stipulated that nothing in its provisions should in the other parts of the United States to read enable any court to entertain legal proceedings the article of the Legal Immunities of Trades

to enforce agreements between the members of Unions which recently appeared in the Law

a union, or certain other specified agreements. Journal, and which discusses the decisions and It stopped short of the obvious step of incorpostatutes in England. The article in question is rating the union, and, while vesting the union's as follows:

property in trustees for the protection of the “Several incidents arising out of recent members' interests, it constituted payments out strikes and labor troubles have called attention of the funds by the trustees for any purposes to the strange and anomalous position in which other than those directed by the union rules a trades unions at present stand as regards the penal offense. It follows that the union canlaw, and the accession to office of the Duke of not, as a principal, be held accountable for the Devonshire, who appended a valuable supple acts of its agents. And there does not appear ment dealing with the matter to the report of to be any means whatever by which a collective the royal commission on labor, over which he responsibility can be brought home to its mempresided, gives ground for expectation that it bers. (See Temperton v. Russell, 62 Law J. will soon receive the attention of the govern- | Rep. Q. B. 300.)

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