« AnteriorContinuar »
event of his death, from the custody of her mother; amount of business done by or on account of corporaand if she do so, the court has jurisdiction to order tions, will doubt for a moment. At the beginning of her to return, or to be restored to such custody. Ct. | the present century, probably not one person out of a of Q. B., Ireland, Aug. 11, 1877. In re Smythe (Ir. L. hundred had ever had dealings with a business corpoT. Rep.).
ration, and the only examples of such an institution
were an occasional bank, a few turnpike companies RECENT BANKRUPTCY DECISIONS. and perhaps half a dozen organizations for some COMPOSITION.
other purposes scattered through the country. To
day, however, every nook and corner of the nation Maker of accommodation paper not discharged by
has its little corporation for insurance, for manufacturcomposition with indorsers.- Where the holder of ac
ing, for printing, while the great railway, express and commodation paper, knowing it to be such, enters into
telegraph companies cover the land with the manifesand signs a resolution of composition in proceedings in
tations of their wealth and enterprise. Therefore, the bankruptcy instituted against the indorsers, the maker
law relating to these organizations is liable, and indeed is not thereby discharged from his liability. Sup. Jud.
certain, to be of interest to every individual in the Ct., Massachusetts. Guild v. Butler, 16 Nat. Bankr.
country, and every practicing lawyer must have Reg. 347. EXAMINATION.
questions under it presented to him almost daily.
Claims by and against banks, and against railway, Violation of order for, by debtor.-Where a bank
express, telegraph and insurance companies, are familrupt has been ordered to submit himself to further
iar to every member of the bar, and the calendars examination, a departure from the district before the
of the courts are burdened with cases in which time appointed, without examination, is such a viola
these associations are plaintiffs or defendants. tion of the order that no discharge will be granted
A knowledge of the law of corporations as it exists until it is rectified by submission to such examination.
to-day, is for this reason essential to every practiU. S. Dist. Ct., Vermont. In re Kingsley, 16 Nat.
tioner, and consequently a treatise wherein such Bankr. Reg. 301. MORTGAGE.
law, in its latest development, should be fully
and accurately presented, has for some time been When assignee permitted to redeem in foreclosure suit.
anxiously looked for, and the announcement made ser- Where the former assignee of the bankrupt, a second
eral months since, that Mr. Field, who had already mortgagee, was made a party defendant in a suit to
achieved a high position among legal writers by his foreclose the first mortgage, and died after entry of a
work on Damages, was preparing a treatise on decree pro confesso but before final decree, and his
the law of Private Corporations, was greeted with successor is not made a party to the suit, a sale will
pleasure. The ability, experience and learning of the not affect the second mortgage, and the assignee will
author were a sufficient guarantee that what he did be permitted to redeem. Sup. Ct., Michigan. Avery,
would be well done, and that the long-felt need would assignee, v. Ryerson, 16 Nat. Bankr. Reg. 289.
be met in a way that would satisfy the profession, and SURETYSHIP.
the present volume realizes all that was anticipated. Discharge in bankruptcy o sureties on an appeal
The work is divided into twenty-three chapters, a bond: when it must be pleaded. - In Mississippi a judg
chapter being devoted to each of the following topics: ment against the sureties on an appeal bond follows
Description, definitions and history; How corporaupon rendition of a judgment against the principal.
tions are created; Private corporations, nature and Where sureties upou an appeal bond are discharged in
character of; Perpetual succession; Members, stockbankruptcy pending such appeal, they must plead such
holders and stock; Directors; Officers and agents; discharge before judgment on the appeal, if they de
| Corporate meetings; Corporate contracts; The corsire to avail themselves of it as a defense. Sup. Ct.,
porate seal; By-laws; Liability of corporations for Mississippi. Jones v. Coker, 16 Nat. Bankr. Reg. 343.
torts; Suits at law by or against corporations; Suits in equity; Receivers; Amalgamation and consolida
tion; Eminent domain; Quo warranto; Liens and BOOK NOTICES.
their priority; Dissolution; Mandamus; Taxation;
Negligence and wrongful acts of agents and servants. FIELD ON CORPORATIONS.
Each leading principle under a topic, as a rule, ocou
pies a section, which is prefaced by a running title A Treatise on the Law of Private Corporations. By George
W. Field, Author of " A Treatise on the Law of Dam denoting its contents. These principles are usually ages," eto. Albany: John D. Parsons, Jr., 1877.
expressed in the very language of the decisions, whereA NEW work on Private Corporations has for some in they are found, with sufficient fulness to render A time been needed. The treatise of Angell & | them easily comprehended, and with sufficient of the Ames, though thoroughly excellent in every particu- | reasoning of the court to make certain their authority. lar, was of the past and could not be successfully Indeed, we think the author has in several instances made a modern book by annotations and emendations. erred in this respect, giving too much of the argument Since they wrote, extensive and important additions of the court. The quotation from Western Railway v. have been made in every department of the law of Babcock, on page 438, is an example of this corporations, both in principle and application, so that On the whole, however, the book of Mr. Field very nothing short of an entire restatement of the rules much pleases us, and we can recommend it to the progoverning that law in all their details, would faithfully fession as a work whereiu the law upon the subject of represent it as it exists at present. And that a treatise private corporations is accurately, logically and eleon the law in force to-day was needed, no one who gantly presented. The volume is excellently printed contemplates for a moment the vast body of capital and bound, contains a good index and a carefully preinvested in corporate enterprises, and the enormous | pared table of cases cited.
BLUMENSTIEL ON BANKRUPTCY.
The work contains the statutes and treaties between
the different countries and the United States in relaThe Law and Practice in Bankruptcy. A complete Treatise
of the Law of Bankruptcy, being Title LXI of the tion to the subject. The rules of the Patent Office United States Revised Statutes and Amendments, with
and the official forms required in the registration of the decisions thereunder; together with a full reference to all the important adjudications made in Eng trade-marks are also given. The volume is excellently land upon similar provisions. An exhaustive review of the practice under the law, with all the forms, rules in
printed on good paper, and is well bound. equity and general orders established by the Supreme Court of the United States, arranged in logical order. By Alexander Blumenstiel, of the New York Bar. New York: Ward & Peloubet, 1877.
CORRESPONDENCE. The field of bankruptcy law seemed to be quite well
THE GRAMMAR OF THE NEW CODE. filled by the treatises of Mr. Bump and others, yet we will not say that the present volume will prove unwel
To the Editor of the Albany Law Journal: come to those of the profession who do business in the SIR — Had the commissioners to revise the statutes bankruptcy courts. It is in several respects better authority to change the laws of the English language fitted than some of its predecessors for the use of the as well as those of the State of New York ? practitioner. It is both elaborate and logical, contain- If not, by what right have they abolished the subing the whole body of bankruptcy jurisprudence, sys
kruptcy jurisprudence, sys- | junctive mood ? tematically arranged and presented in such a way as For instance, the Old Code reads (section 104): “If to be understood by every one — something that can- | an action shall be commenced within the time prenot always be said of all works of this kind. The bank- | scribed therefor, and a judgment therein be reversed rupt law itself is far from being clear in its terms, and on appeal, the plaintiff, or if he die and the cause of the decisions of the courts as to its meaning have often | action survive," etc. The New Code changes this been contradictory - a circumstance which in some into (section 405): “If an action is commenced within degree has contributed to the popular feeling against the time limited therefor, and a judgment therein is it; and we have heretofore had no work of any size reversed on appeal * * * * the plaintiff, or if he which has undertaken to treat of it in an elementary dies and the cause of action survives," etc. Four mismanner. This we understand to be the aim of the takes in one sentence! And these blunders have plenty book before us, and we believe the author has suc | more to keep them company. ceeded in what he has attempted to do. The book is Why such a fierce hatred of the subjunctive, and well printed and bound, and carefully indexed, and this inordinate passion for the indicative? contains a table referring to the cases cited. All the In familiar conversation and correspondence, a nttie necessary forms are given, and in fact every matter in carelessness may be pardoned, but should not the law or practice that is liable to arise is referred to. statute law of a country be a model both as to style and For both the student and the practitioner the book grammar, and not a string of blunders that would diswill prove a valuable aid.
grace a school boy?
Is this massacre of subjunctives a cruel deed, done
with malice aforethought, or must the commissioners CODDINGTON'S DIGEST OF TRADE-MARKS.
plead Dr. Johnson's frank excuse: “Ignorance, A Digest of the Law of Trade-Marks, as presented in the re madam, pure ignorance !"
T. C. ported adjudications of the courts of the United States,
NEW YORK, 17th December, 1877. Great Britain, Ireland, Canada and France, from the earliest period to the present time; together with an appendix containing the United States statutes and the treaties of the United States concerning trade-marks, COMPELLING PRISONER TO FURNISH EVIDENCE, ETC. and the rules and forms of the United States Patent Office for their registration. By Charles E. Coddington,
To the Editor of the Albany Law Journal: Counselor at Law. New York: Ward & Peloubet, 1877.
SIR– In reading your comments on 21 Am. Rep., in This work must prove of great value to those among the December number of your excellent journal, I was the profession who are called upon to act in cases in struck with the justness of your comment upon the volving trade-marks, as it collects together a mass of case of State v. Graham, 74 N. C. 646. The evidence law very widely scattered, and to most persons inac. against the prisoner was most certainly incompetent. cessible. There are several valuable elementary trea- No man shall be compelled to furnish evidence against tises upon the subject, and a very good collection of himself is the edict of the organic law of our governleading cases; but heretofore no digest, containing | ment, and upon this express ground, the Supreme every thing in English, French, Canadian and Ameri- Court of our State reversed a case at its last term where can law, has appeared. The law regulating trade the prisoner, who stood indicted for murder and was marks, though of somewhat ancient origin, is very compelled to put his foot into sand so that his track largely of quite modern production. Nine-tenths of might be identified as the same one found in the mud, the decisions upon this topic have been made within near the scene of the murder. To compel the prisoner the last thirty years, and more than half of them since to "put his foot in it,” is only another way of making the year 1865. The materials for the digest, therefore, | him say " I did it/" have accumulated only within a very brief period. As to the case of The State v. Neely, 74 N. C., it is The volume before us appears to have been carefully sufficient to say that the opinion of the court convictprepared. The arrangement combines the analytical | ing the prisoner because he ran after the girl, is an and alphabetical methods, and the index being full absurdity so gross that it blunts common sense. The and systematic, the contents are rendered easily ac- judge who delivered it should have been “on the cessible to every one. The French decisions are given jury," with an enligthened judge presiding to curb his separately. A table of cases affirmed, criticised, re- "experience" and prejudice. versed and cited in opinions in cases referred to is
J. W. Judd. given in addition to the usual table of cases cited. | SPRINGFIELD, TENN., Dec. 4, 1877.
COURT OF APPEALS DECISIONS.
The London Punch furnishes the latest judicial THE following decisions were handed down on Tues charge. It is the case of Brown v. Jones, just tried 1 day, December 18, 1877:
before the Lord Chief Baron. It was a case of little Judgment affirmed, with costs -- Collins v. N. Y. C., interest. The plaintiff sued the defendant for money etc., R. R. Co.; Nelson v. Sun Mutual Ins. Co.; Knapp lent upon a bill of exchange. The bill was presented V. Anderson; Brown v. Kiefer; Taber v. Delaware, in due course and dishonored. There was practically etc., R. R. Co.---- Order affirmed, with costs - In the no defense. The Lord Chief Baron, in summing up, matter of Hermance v. Supervisors.--- Appeal dis- said he was delighted to have this opportunity of missed, with costs -- Stewart v. McCool.- Order addressing the jury upon several subjects of importgranting new trial affirmed and judgment absolute for ance. The other day he had given the Lord Mayor plaintiff, with costs — Worster v. Forty-third Street, his opinion about the present war - a war which was etc., R. R. Co.- Order of General Term affirmed a disgrace to the Emperor of Russia and a scandal to and judgment absolute for plaintiffon stipulation, Europe. On this occasion he would touch upon other with costs --- Knolls v. Barnhardt.- Judgment re | topics of international interest. He wished to call their versed and new trial granted, costs to abide event attention to Prince Bismarck. To the far-seeing cruelty Cowing v. Altman.--- Order of General Term re of this statesman France owed her present painful versed and judgment on report of referee affirmed, position. Had the German premier been satisfied to with costs – Cougblin ». New York Central, etc., R. conclude the war before the late Emperor of the R. Co.-- Order granting new trial reversed and French had surrendered at Sedan, there is every reajudgment at Circuit affirmed, with costs — Knox v. son to believe that a Napoleon would have been seated Hexter.
on the throne of France at this very moment. To the
overthrow of the empire may be traced the terrors of NOTES.
the commune. Bismarck also had a hand in the THE Journal of Jurisprudence and Scottish Law Danish and Austrian wars — two campaigns full of I Magazine, for December, contains several articles disaster to the natural allies of England. Altogether, of more than usual interest. In the leader, entitled he thought it his duty, sitting there as he did in the “Our Majority,” the Journal commemorates the com character of a judge of the land, to condemn the conpletion of its twenty-first year, and reviews the im- duct of the German statesman in the strongest possible portant legal incidents which have occurred during language. He must add, too, that he looked with the period covered by its publication. “Scottish Pris some alarm at the warlike preparation reported to be ons" is an interesting contribution upon the now making in Italy. Why should Italy arm? Did she prominent subject of prison reform. “Notes on the wish to attack the Turks? Was she playing into the Social Science Congress," at Aberdeen, contains crit-hands of the Russians? These questions some judges iques upon the essays read on "The Law of Infanti- would leave to the jury to decide. He refused to do cide," on “Prison and Reformatory Labor," and on any thing of the sort. He thought it his duty, as "Our Detectives." Under the head of “Reviews,” | Lord Chief Baron, to rule that the Italians were dethe leading legal periodicals of England and America cidedly wrong. They must take this from him seated are mentioned, with such criticisms or commendation on the bench. His lordship then severely criticised as the reviewer deems each to be entitled to. Of the the conduct of the Khedive of Egypt and reviewed ALBANY LAW JOURNAL he speaks thus;
the history of Spain during the last five years. At "The ALBANY LAW JOURNAL is one of the most en- this point the fifth edition of the evening paper was terprising and largely circulated of American legal
handed in. The Lord Chief Baron, having hastily weeklies. During the year 1877 it has kept up to its usual high standard of excellence. Its reports of cases glauced at the latest intelligence, continued his sumare carefully prepared and well selected, while its ming up. There was nothing knew in the paper beoriginal articles speak well for the learning and ability
fore him. Of course, there was a great many rumors; of the members of the legal profession of the State of New York."
but they might take it from him that rumors must be
received with the greatest possible caution. He had A somewhat novel case was recently decided by the
no wish to embarrass Lord Beaconsfield by any reSupreme Court of Pennsylvania. One Barclay was
mark that he might make while in discharge of his the owner of a ticket in a lottery, which he passed
judicial duties; still, he thought it only right to over to an acquaintance named Newhouse. The ticket tell the jury that unless the Premier walked in drew a pair of horses, of which Newhouse obtained
the ways of the late Lord Palmerston, England's possession. Barclay transferred all his right to one
prosperity might become a thing of the past. We Kestner, who went to Newhouse, and by threats and
had great interests in India, and those interests must menaces succeeded in acquiring possession of the
be carefully watched and guarded. His lordship hero horses. Newhouse then brought an action of replevin
read several extracts from the works of Captain Burfor the horses against Kestner. The evidence was
naby to prove that the Turk was infinitely to be preconflicting as to whether the transaction was a gift of ferred to the Russian. His lordship regretted that he the ticket and of whatever it might draw, or whether had not a large map and a black board, it was handed to Newhouse to obtain what it might
magic lantern, with a few dissolving views. Had he
these useful articles, he ventured to think he could draw, as agent for Barclay. The court held that New
have made his lecture, if not more intelligible, at least house could recover, saying he had the actual posses more entertaining. He regretted the lateness of the sion of the horses under a claim of title. Kestner hour prevented him from saying a great deal more sought to prove property through an illegal transac
upon the very interesting subjects that had been
attracting their attention. In conclusion, he could tion, which could give him no right. The jury has | have no hesitation in directing the jury to find a ver found that he obtained the possession of the property dict against the Russians generally, and in the present from Newhouse against bis will, and by threats,
case to give the plaintiff the money that clearly was menace, duress or force. This leaves Kestner with
due to him. The jury (having been awakened by the
usher) immediately found a verdict for the plaintiti, out any foundation upon which to rest a claim. | and the proceedings terminated.
And communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.
Communications on business matters should be addressed to the publishers.
policies when so disposed. Other things, also, will | engage legislative attention, but if the law is made what it ought to be in the matters we have mentioned, the work of the session will satisfy the people generally.
The Albany Law Journal.
The Court of Appeals of Maryland has decided
that a negro is not entitled to admission to the bar ALBANY, DECEMBER 29, 1877.
of that State. One, Charles Taylor, who has for some time been studying in a lawyer's office in
Baltimore, and as to whose intellectual and moral CURRENT TOPICS,
qualifications there appears to have been no dispute, THE legislature of this State, which assembles for
and who has recently been admitted to practice in its regular annual session next week, bids fair the Federal courts there, applied for admission to have presented for its consideration an unusual to practice in the State courts. The Court of amount of business. The law regulating procedure Appeals refused to grant his request on the simple was left last spring in an unfinished condition, and ground 'that the law forbade it. The decision will, there will be an earnest demand that what was undoubtedly, be used as an argument that the black undertaken be finished or that a step backward be man is not given the same rights as the white man taken; that is, that the nine chapters necessary to in Maryland, but we do not regard it in that light. complete the new Code be enacted or that the old The privilege of practicing at the bar as an Code be restored. Those who are active in advo- attorney and counselor is in no sense a right. The cating the restoration of the old Code, or something | law-making power may impose such restrictions as like it, will probably ask that other important it pleases upon admission, or may commit the whole changes be made in the statute law, perhaps the
matter to the courts. It is incumbent upon the adoption of the Codes prepared some years since by
authorities having the matter in charge to establish the commissioners appointed by the legislature for
reasonable regulations, just as it is incumbent upon that purpose. These Codes have been approved the legislature to make reasonable laws, but in and adopted wholly or in part in a majority of the making such regulations the interests of suitors, States, while not a single one of them has been not those of applicants for admission, are to be conenacted here. The excise law has given so much
sulted. If it is best for suitors that those who are trouble during the past year since the meaning of to conduct their cases shall be selected from a paran important section has been settled by the Court | ticular sex and a particular race, and such is the of Appeals, that a very urgent effort will be made rule, no one has any legal or moral right to comfor its modification. It is to be hoped that a law plain. It seems best to those having the matter in may be devised that can be enforced. The present charge, in most parts of Christendom, that educated statute is full of traps and pitfalls put there, not for males of full age shall alone be permitted to reprethe purpose of regulating, but of preventing, the sent litigants before the courts. In Maryland, and sale of liquor, and is so uncertain and dishonest in | probably in some other of the Southern States, only its provisions that public opinion will not sustain it, white males of proper age and qualifications are and if not abolished it must remain to a very large given the privilege, while in some of the Western extent a dead letter. Both it and the civil damage States the opportunity to act as attorney and counlaw are a discredit to our statute book, and it is to selor is open to all, without distinction of race or be hoped that the present legislature may erase sex, and we think, in one or two localities, without them therefrom. We presume the usual attempts other qualification than that of age. As to which will be made to abrogate the usury law, and we
rule is the best opinions will differ, but we must trust that the legislative mind may be sufficiently confess that the bar of those States where the enlightened to render those attempts successful. It stricter rule prevails, contains a larger proportion of is to be hoped that the exposure during the past individuals, who possess the qualities which go to season of the dishonest practices of managers of make up the model lawyer – intellectual ability, insurance companies may encourage the passage of
learning and high moral character -- than does that laws regulating the contract of insurance. The de
of those where every one that wishes may enter relopments made in the investigation of the affairs the profession. of the American Popular and other life companies, show that the various conditions inserted in policies The Governor has, we understand, selected Mr. are placed there, not to protect the companies against Justice Ingalls, of the third district, as one of the fraudulent practices on the part of applicants for general term judges of the first department. The insurance, but to enable the companies to avoid the bar of the third district very much regret that
Vol. 16.– No. 26.
Judge Ingalls is thus to be taken from them. While by making it profitable to those who conduct the there is in the first department a vast amount of business of the courts. Until our justices' court business, and its bench may be entitled to the most system is entirely reorganized this court will reable and experienced judges in the State, the third main an instrument of wrong to rich and poor alike, district should not be called upon to part with one and a scandal to our judicial organization. so well fitted to perform the duties of the circuit as is Judge Ingalls. It is understood that he is himself averse to the designated change, and would prefer
The New York Herald, in a recent issue, intimates
that the public have lost confidence in the justice to retain the place he occupies at present. Besides, the business of the third district is so large as to
and independence of the Federal Supreme Court in require all the judicial officers, residing therein, to
consequenee of several decisions on questions of imattend to it. If the Governor persists in his inten
portance made during the past few years, particu
larly in those cases known as the "legal tender" tion the large cities of Albany and Troy will be left
and “granger" cases. The decision in the Chicago without a resident judge who transacts special term
elevator case, Munn v.Ilinois, is declared to authorbusiness. Mr. Justice Learned is absent at general
ize a “clear invasion of private rights, and to be an term a very large part of the time, and if Judge
attack upon private property." The Herald, thereIngalls is taken to New York the lawyers of the
fore, concludes that there is but little hope left that two cities named must go to Catskill or Kingston
the Supreme Court will remain what it has been for every special term order required, when there is
supposed to be, the impregnable bulwark of private no regular special term in session in one or other of
rights, and it looks with apprehension for its decissuch cities. The action of the Governor will result
ion upon certain important questions now pending in great inconvenience to the profession, which might
before it. The reasons given by the court for its have been avoided if another selection had been
decision in the case of Munn v. Illinois seem to us made.
to be amply sufficient to sustain not only its correctIt will be noticed from the announcement else
ness but the propriety of laws of the character of
those whose validity was passed upon. But the where that the Court of Appeals closed the busi
question before the court was not what the Herald ness of the present term on the 21st inst., and adjourned sine die. An order was handed down con
assumes it to be, whether the statutes regulating the
price of storage in the elevator were just, but vening the court for a new term to commence on
whether the State of Illinois had the right to pass the third Tuesday of next month, when a new calendar will be made of appeals wherein returns are
them. The Supreme Court said that the State had properly filed and which are properly noticed for
power to pass them and that was all. It is the duty argument. The court has, during the past term,
of the courts to declare what the law is and pot
what it ought to be, and the Supreme Court of the decided some very important cases, notable among
United States, when the constitutionality of a State which are the suits relating to the New York ele
law comes before it, can examine only that question. vated railways. Two cases of unusual interest in
The laws of some of the States are frequently unjust volving the constitutionality of the civil damage
and sometimes designedly so, yet as long as they do law, and others of less importance, are held under advisement until the re-assembling of the court in
not infringe the provisions of the Federal Consti
tution, the Supreme Court cannot enjoin their enJanuary.
forcement. The tribunal may not agree with us The killing of a constable, in Chicagoby a upon every question, but we believe it is more likely woman, against whom he was endeavoring to en
to be right than we are or than any newspaper in force an execution, has called the attention of the
the land. public in that city to the disgraceful character of the ordinary business done in justices' courts there.
Those interested in litigation in the District of It does not follow, however, that justices' courts in
Columbia have long felt the need of a thorough Chicago are in themselves any worse than the same reorganization of its judicial system. The laws of institutions are elsewhere, but, as they afford greater
Maryland regulating practice, which were in force at opportunities therefor, the exposures made de
the time of the formation of the district, still prevelop more cases of oppression and wrong, than vail. While changes have been made in methods would probably be discovered in another place. of procedure in every part of the country, the disThe cause of this state of affairs is attributed to the trict retains the old cumbrous and technical commoncircumstance that the constables who execute the | law system. There is a prospect that this condition process of the courts are chosen from a very low of things will not much longer continue, as an elabclass of men, but this is not the true one. The orate bill has been prepared under the supervision fault is in the system, which gives great opportunity of leading members of the bar of both political for petty injustice, and encourages such injustice l parties, for the establishment of an entirely new