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New Books and New Editions. struction law with the amendments of the Legisla

ture of 1895. Chapter 2 deals with the Excise Law, SMITH ON CHATTEL MORTGAGES AND CONDITIONAL

which is excellently annotated with citations at the SALES IN THE STATE OF NEW YORK, 2d EDITION,

end of every section, and shows clearly the amendBY P. C. DUGAN, Esq., OF THE ALBANY BAR.

ments made by the last Legislature and with the

new sections. Chapter 3 deals with special acts The second edition of this work was made relative to Excise Commissioners and Excise moneys, necessary by the decisions rendered since the and gives a special law relating to powers and last edition and by the many changes in the statute pledges for liquor sold, and the Civil Damage Act law. The frequency in these days of conditional and is followed by a chapter on the Public Officer's sale of property to secure payment has largely Law. Chapter 6 deals with Code Provisions, while increased the interest in this branch of the law. Chapter 7 is on local statutes relating to excise, with The edition begins with the chapter on the In

a special act relating to the State and counties.

Chapter 8 deals with United States statutes relating strument.” The subsequent chapters are on the

to wholesale and retail liquor dealers, and Chapter fili and refilii

of chattel mortgages, the validity 9 is in relation to rights and liabilities to innkeepers. of chattel mortgages, the disposition and sale of

After this comes the chapter with forms on this the mortgaged property, assignment of mortgages subject, and an excellent index completes the of ships and vessels, and the supplement contains volume. Published by Matthew Bender, 511 & 513 chapters on the same subjects except that Chapter Broadway, Albany, N. Y. VI, which deals with contracts on conditional sale of

COMMENTARIES OF THE LAW OF CORPORATIONS, personal property. The well-known ability and

By SEYMOUR D. THOMPSON. learning of the editor of the second edition makes the second appearance of this work, perhaps, more

Vol. 4. We have already carefully reviewed the important than the first edition, and the general first three volums of this excellent and tremendous care which was used in the preparation of the

work, and have also published a most careful and

Icarned review of the books already published by second edition makes the work up to date in all

John F. Dillon, of New York city. It seems alrespects. Published by Matthew Bender, 511 und

most unnecessary to repeat the encomiums of praise 513 Broadway, Albany, N. Y.

which have already been accorded to this publicaJEWETT'S MANUAL FOR ELECTION OFFICERS AND

tion except, perhaps, to note that the same excel

lence of literary and scientific research and knowlVoters of the STATE OF NEW YORK, By F. G. edge is evinced as in the former three volumes we JEWETT, OF THE SECRETARY OF STATE OFFICE

have seen.

Vol. 4 begins with chapter 86, on the THIRD EDITION.

rights of membership, and continues with the rights The changes in the clection laws made by the last to inspect books and papers, other rights and remeLegislature made the appearance of this work a dies, remedies of shareholders in equity, injunctions necessity and practically a useful remedy and the in aid of such remedies, and when such remedies method of handling the subject in the past has been extend to winding up and when not, further as to repeated in the third edition. The scope of the the release of parties to such actions, pleadings in work in this edition has been greatly enlarged and such actions, varies matters of practice in such the work most clearly show the laws of the State in actions. Title 8 treats of ministerial officers and general with the special elections laws in relation to changes, and power of the president and other offithe cities of New York and Brooklyn. The changes cers of the corporation, the cashier of a bank, the in the Senate and Assembly districts in number and teller and other officers. Title I deals with formal in territory also made the publication of this work execution of corporate contracts, and deals with a practical benefit to lawyers as well as to officers of negotiable instruments, parol contracts and implied elections and perhaps of political organizations, and contracts. Title 10 is about notices, estoppel ratithe directions for voting contained in the work will fication, while title 11 contains chapters on franbe found of great aid to the instructors of voters at chises, privileges and exemptions. Title 12 deals the coming election. The work is complete in every with corporate powers and the doctrine of ultra respect and contains a full practical index. The vires, and has chapters on corporate powers in gene maps showing the senatorial and assembly districts ral, interpretation of charters, financial powers, while will be of considerable value to those who use such chapter 126 deals with powers relating to negotiable a work. Published by Matthew Bender, 511 & 513 papers. The enormity of the work and the manner Broadway, Albany, N. Y.

in which it deals with this large and increasing

branch of law makes the work equal to any of the THE EXCISE AND LIOTEL LAWS OF THE STATE OF standard commentaries of this or any other era.

New York, BY ROBERT C. CUMMING AND FRANK The true value of the work will have its lasting B. GILBERT, OF THE STATUTORY REVISION Com effect on the law and lawyer of this and future

generations. This is a treatises of 253 pages on this important Published by Bancroft Whitney Co., San Frausubject. The work begins with the statutory con- i cisco, Cal.


The Albany Law Journal.

ALBANY, AUGUST 14, 1895.

portionate to their injury to the State in preventing companies from doing business within our boundaries? Will it not require the use of a flood of gold to secure there repeal ? Gentle. men of the legislature, in time you may kill the goose that lays the golden egg.

Current Topics.


[All communications intended for the Editor should be ad

Commenting on the Draft Companies Act dressed simply to the Editor of TAE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other Amendment Bill which Judge Dillon writes of business inatters, should be addressed to THE ALBANY LAW

the Land Time's says : JOURNAL COMPANY.]

Everyone will hail with satisfaction the reT must be remembered that the majority of

port of this committee and its draft of a bill for companies are honestly formed for carrying amending the companies acts, and most will on a legitimate, though it may be a speculative think that a very prudent middle course has enterprise or business, and the business is con- been taken between the opposing dangers of ducted with honesty and reasonable ability and leaving 100 much to the prudence of investors, judgment.” Such is part of the report of the and of laving too heavy burdens on the backs committee appointed to make recommendations

of directors. A few matters appear to call for and changes in the English Companies Acts, comment. and if all corporations were formed honestly

The first clause, which makes the certificate and conducted without any endeavor to take of incorporation conclusive for all purposes, is advantage of the public there would be little of more importance than is generally known. necessity to have any of the present relations, For many years it was thought that associations regulations and restrictions in the corporation could be formed into companies at common laws of this State. There is little doubt, as law, and then registered under Part VII of the Judge Dillon suggests in his letter published in Companies Act 1862. As this course involved these columns, that many of the present severe a considerable saving of stamp duty, it was provisions of the corporation laws of this State largely adopted down to 1890 when the board should be modified to the end that a larger of trade refused any longer to allow it, a ruling number of business interests may be induced to which was upheld in the Court of Appeal in Ex begin their legal life and existence under our parte Johnston (1891), 2 Q. B. 598. This case State laws. How far we can loosen the restric- shows that such an association is one which tions which we now have is a difficult matter to cannot be registered, and accordingly the cerdetermine, but the changes should at least tificate of incorporation, which only deals with attain the results which Judge Dillon suggests. the forms and details of registration (sce NaAfter all, when we realize the practical results | tional Debenture Corporation (1891), 2 Ch. at of the provisions of the New York Statutes in 517), is no protection to the great number of regard to corporate companies, we must appre-companies already registered in this manner, ciate that the seemingly severe prohibitions and and if the question were raised it would probarestrictions which we have referred to, are bly be held that they are unincorporated bodpartly only imaginative and that is only neces- ies, and that the shareholders' liability is sary to resort to subterfuges to evade laws unlimited. which are shibboleths of regulations rather than The clauses of the bill which, however, arrest actualities. Corporations ille formed under most attention are those which deal with the the laws of other States and carry on business prospectus and the first allotment. here with enormous capital stock much of will dispute the advantage of compelling fuller which only represents the dreams of the incor- disclosure of preliminary contracts, of the porators. Are these restrictions in our statutes profits of vendors, of the amount of promoters' in many cases the result of the work of over remuneration, and preliminary expenses; but anxious patriots in the legislature who were not the result of a failure to make proper disclosure properly persuaded that their views und fears is dealt with in an unsatisfactory manner. The were wrong? Ire these practical benefits pro-1 matters to be disclosed are in some cases of Vol. 52

No. 8.

No one

great importance, in others they are or may be will lose the protection intended for them. It trival, e. g., the actual number of shares taken seems imperative that some provision should be by directors, or the address of auditors; but made for dealing with issues of capital other the remedy is the same in every case: “In the than the first where they amount to as much as, event of non-compliance with any of the re or more, than the amount for the time being quirements of this section with respect to a issued. prospectus, any person aggrieved shall be enti

The repeal of sect. 25 of the Companies Act tled to compensation from any director, etc.” 1867 will be received with great satisfaction Here is a splendid opening for litigation. Who by most people. But it would be well to deis a person aggrieved? Prima facie no doubt clare expressly what the position will be of a person who has applied for shares on the persons who now hold shares on which they faith of the prospectus; but will the clause also are liable, in the event of a liquidation, to extend to purchasers of shares or others indi- pay the whole amount in cash because no conrectly aggrieved ? Again, will it give relief tract has been filed. If they are freed from against loss where the non-compliance was this liability the creditors of the company may really immaterial ? And for what is the com be injured ; if not freed, their case will be a pensation? Shall the smallest omission of any hard one. matter required to be stated give a right to The provisions as to disclosure of the amount every subscriber to have all his loss made good of shares issued as fully or in part paid which to him, although arising from something wholly are to take the place of this section would be unconnected with the omission ?

sufficient, were it not that an easy method of So far the Bill seems to lay too great a re evasion presents itself. A company may consponsibility on directors, but, on the other tract to purchase property or pay for services hand, the exceptions in clause 15, sub-sect. (a) with cash, upon the understanding that the and (6) of sect. 4 will open a means of evading vendor or employe subscribes for an equal nomithe salutary provisions of the Act. Several of nal value of shares; and this may be used to the most important particulars will not require defeat the clauses relating to a minimum subto be disclosed more than one year after the scription. If the owner of a gold mine wishes formation of the company, nor need contracts to sell it for £100,000, and the prospectus of a made more than one year before the issue of company with a capital of £150,000 states that the prospectus be set forth. If a dishonest the minimum subscription will be £50,000, and trader wishes to put his business before the that the property will be purchased for £100,public without giving proper particulars, he can 000 in cash or shares at the option of the easily form it into a private company first, and, directors, and upon opening the letters of after waiting for a little over a year (during application it is found that only £10,000 which time he will, no doubt, have paid a good is subscribed for, there is nothing to predividend), he can offer the whole to the public, vent complacent directors from agreeing the concealing the particulars of the transactions purchase price at £55,000 in shares and relating to the formation of the company. £45,000 in cash, out of which latter the ven

In like manner the excellent provisions re- dor will subscribe and pay for £40,000 of straining the directors from going to allotment shares, making up the required minimum subor commencing business until a certain mini-scription, but leaving only £5,000 working mum of capital has been subscribed and in part capital. paid-up, and giving the members at the statu No apology seems necessary for pointing out tory meeting a right to information on these means of “slipping out of” the bill, for important point, can be easily evaded. If a there is still time to stop up the gaps, and it is company be first registered with a small capital to be hoped that pains will be taken to do so. (say £100), and all this be subscribed, and One other point requires notice. It is properhaps fully paid, it will be free, after holding posed that unregistered mortgages shall not be the statutory meeting, to increase the capital to valid as against creditors or the liquidator. any extent, and to offer this to the public, who I There is much in favor of this, but it may work


great hardship on a purchaser of a mortgage or attention. This was in the famous “Sunday debenture not duly registered, and will make Car" case, decided in 1865 in Philadelphia. it necessary for purchasers to make inquiry While a member of the Supreme Court of the before completing the purchase, thus checking State, Justice Strong won a reputation for juthe negotiability of such securities.

dicial learning that extended far beyond its On the whole, however, the bill, if it becomes limits, and when, in 1870, President Grant law, should do much to dissipate the evil odor transmitted his name and that of the late into which the practice of company formation Justice Bradley to the Senate for confirmation has come.

as associate justices of the Supreme Court of

the United States, there was a very general The London Law Magazine says: “It will be feeling of satisfaction among the members of remembered that an Irishman, named Cleary, his profession. On January 15, 1872, Mr. Jusand his family, most cruelly burnt the wife of tice Strong announced the decision of the court the former to death, under the belief that she , affirming the constitutionality of the legal tenwas a witch, and that so soon as the victim was

der act, and Justice Bradley concurred in a consumed the real wife would appear at the

lengthy opinion. door of the cabin riding on a white horse.

But the legal tender question was not the The man has just been sentenced at the Tippe- only one of importance growing out of the war rary Assizes in Clonmell to penal servitude for in the settlement of which Mr. Justice Strong twenty years, the jury having mercifully found took a prominent part. The constitutional him guilty of manslaughter only. The learned amendments, intended to crystallize and prejudge, Mr. Justice O'Brien, expressed surprise serve the results of the war, and the congresat the degree of darkness of mind, moral ruin, sional legislation necessary to give these conand superstition existing in the nineteenth cen- stitutional provisions force and effect, were tury. Yet these are the people whom we are

before the court. In Bigelow v. Torest, Mr. told are capable of exercising the parliamen- Justice Strong prepared the decision announctary franchise.”

ing that under the Confiscation Act of July 17,

1862, a decree and sale only established a conOn Monday, August 19, 1895, ex-Justice fiscation during the life of the one for whose William Strong, of the Supreme Court of the offence the land was condemned and sold. In United States, died at Lake Minnewaska, N. Y.

Tennessee v. Davis, he delivered the opinion William Strong was the son of the Rev. Wil of the court establishing the principle that the liam Lighthouse Strong, and was born in Som-judicial power of the United States embraced ers, Tolland county, Conn., May 6, 1808.


alike civil and criminal cases arising under the was educated at the Plainfield Academy and Constitution and the laws of the United States, Yale College, graduating at the age of 20 years. and that their removal from a State to a After a brief career as school teacher, he re federal court was no invasion of State domain turned to New Haven and graduated from the and power. In Virginia v. Rives, he also preLaw School of Yale. Removing thence to pared the opinion of the court, holding that Philadelphia, he was admitted to the bar in the object of the Constitution, which author1832. The young lawyer chose Reading, Pa., ized the enactment of statutes for the removal for his home, and entered upon the practice of into the federal court of civil suits or prosecuhis profession. In 1847, having taken an ac tions against any person who was denied, or tive interest in politics, he was elected to repre could not enforce, in State courts any rights sent the district in Congress, and served two secured to him by any law providing for the terms. He then returned to the practice of his equal rights of citizens of the United States, profession, and in 1857 was elected a judge of was to place the colored race, in respect of the Supreme Court of the State of Pennsylvania civil rights, upon a level with the whites. for a term of fifteen years.

On October 1, In ex parte Virginia, Judge Strong an1868, he resigned that office and resumed his nounced the decision of the court that whopractice at the bar. One of his decisions on ever, by virtue of public position under a State the supreme bench of the State attracted great government, deprived another of life, liberty,

or property, without due process of law, or de- is by the political development of many generanied or took away the equal protection of the tions of men, and it is not the mere sole crea-laws, violated the constitutional inhibition ; tion of the Philadelphia convention. that his act, as such officer, was the act of the

Mr. Ellis Stevens, in the work before us, State; that power was given to Congress to en treats of that document which goes by the force its provisions by appropriate legislation, name of The American Constitution, and avoids and that such legislation must act not upon the all side issues. He deals with the making of abstract thing called the State, but upon the the constitution, its legislative organism, its legispersons who are agents of the State.

lative powers, points out in what man:er its Justice Strong was designated by the Elec-executive is related to the ancient executive of toral Commission Act of 1877, as one of the England, discloses the popular feeling of Amerijudicial members of the famous tripartite tri- cans against kingship- an opposition largely due bunal which passed upon the contested presi- to the fact that the struggle for emancipation had dential election of 1876. In 1880 Mr. Justice been forced upon them by their sovereign in Strong, having reached the age at which person -- and describes the derivation of the retirement from the bench after ten years' ser

American courts from the English colonial vice thereon is permitted, retired, and had courts and judges, and explains, in a very lucid since made his home in Washington.

manner, the continuity of our bill of rights in It is always of importance in determining the acts of American legislation. An excellent

treatise on an interesting subject, well digested value of oneself or of a condition of affairs to

and clearly evolved. secure the opinion of others and to regard their view in passing and forming judgment.

“Mr. Borgeau devotes his work to the process The Law Magasine, of London, in its review of Constitution-making in those States which on works called the “Sources of the Constitu- admit of an isolated treatment, and render tion of the United States," by Ellis Stevens, possible the attainment of a general theory. and “Adoption and Amendment of Constitu- He points out that a constitution is the fundations in Europe and America,” by Charles Bor- mental law according to which the government geau, shows how our English cousins regard of a State is organized and the relations of inthe Constitution of the United States and its dividuals with society regulated; it may either history. The Magasine says:

be a code or a collection of texts promulgated Mr. Gladstone has observed that “as the at a certain time by a sovereign authority, or British Constitution is the most subtle organism in the second place it may be the result of a which has proceeded from progressive history, so series of legislative acts, judicial decisions, pre the American Constitution is the most wonderful cedents and traditions of dissimilar origin and work ever struck off at a given time by the unequal value. brain and purpose of man." There is some

“The English Constitution, the oldest of all truth in this, for the American Constitution, constitutions-belongs to the second division. established as a written document by the con- The private law of the United Kingdom is vention and in circumstances quite unique, has uncodified, and her fundamental law is unwritmany elements peculiar and characteristic; but ten. An unwritten constitution does not, as a it is beginning to be realized that the American whole, furnish innovators with a definite conConstitution, though possessing elements of crete point of attack; but as it lies within the novelty, is not after all the new creation that ordinary competence of Parliament to increase Mr. Gladstone would imply. It is not the or diminish it by mere statutes, indirect blows original composition of one body of men nor may be aimed at it all the more danganous, bethe outcome of one definite epoch. It rests cause not immediately and generally apparent. upon very old principles, laboriously worked Mr. Borgeau directs his study to those counout by long ages of constitutional struggles ; it tries which may be said to fall within the first looks back to the annals of the colonies and of division; they are becoming more and more the motherland for its sources and its explana- numerous, their public law may be considered tion. The constitution has been made what it I apart from the power which creates it, and

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