abstract or digest should contain a more elaborate exposition, inasmuch as the opinion is not present to explain any doubt. Reporters differ, however, concerning the matter, and a head note giving too much is better, perhaps, than one giving too little.

The more important cases of general interest in this volume are those relating to negligence and excessive damages, several of which we have noticed elsewhere.

The Code of Procedure, as amended to 1871, with notes on Practice, Pleadings and Evidence; Rules of the courts fully annotated; a complete table of cases and a full index. By William Wait, counselor at law. Albany, William Gould & Sons.

The publishers have, to repeated inquiries as to why this volume was so long delayed, responded that Mr. Wait desired to make it as full and complete as possible. We now have it, and after a somewhat thorough examination of the advance sheets, are satisfied that the excuse was real and justifiable, as the work is really as perfect and full as such an one can well be.

The page is much larger than ordinary law books, and the type is excellent. Indeed, the book is a good model for publishers. It contains, first, a table of contents; a full table of the cases cited-58 closely printed pages. 890 of matter, and an excellent index of 81 pages, making in all 1,032 pages. The sections of the code are printed in good sized type, across the page, with the annotations, in double columns of smaller type, under them. This arrangement contributes largely to the relief of the eye and facilitates examination.

In addition to the code we have, in the body of the work, all the new rules of the court of appeals, the supreme court, the New York superior court and court of common pleas, with full annotations under each. So complete are the rules that we notice even those of a special character by the different judicial departments of the supreme court; and a note under rule 54, that in the third department the court by rule has designated "Friday," instead of Thursday, as the second motion day in the first week. The annotations to the sections of the code itself are very full, with subdivisions and catch words, which enable the reader, even without an index, almost at a glance to find what there is upon the subject under consideration.

On the whole, we consider this one of the most useful and necessary books in this and other States having a code similar to our own, which has been published in a long time.

MEDICO-LEGAL SOCIETY OF THE CITY OF NEW YORK.-The annual meeting of this society was held at the college of physicians and surgeons, corner of Fourth avenue and Twenty-third street, on Thursday, October 12, 1871, at which time the following officers were elected for the ensuing year: President, Stephen Rogers, M. D.; First Vice-President, Jacob F. Miller, Esq.; Second Vice-President, Dr. R. A. Vance; Recording Secretary, Dr. James Ross; Chemist, Dr. August Wohlfarth; Corresponding Secretary, Dr. Jean F. Chauveaus; Treasurer, Dr. T. S. Bahan; Librarian, William Shrady, Esq.; Pathologist and Curator, Dr. Stephen Clark; Assistant Recording Secretary, Dr. William M. Kemp; Trustees, Jacob Shrady, Esq., Clark Bell, Esq., Drs. J. J. O'Dea, T. C. Finnell, J. C. Peters, H. P. Farnham.

A suit begins with plaintiff and defendant.
But both are plaintiffs long before the end on't.

GENERAL TERMS.

1st Monday in November, first department, New York.

2d Tuesday in November, third department, Schenectady.

3d Tuesday in November, fourth department, Syra

cuse.

2d Monday in December, second department, Brooklyn.

LEGAL NEWS.

The following United States appointments have been made: William McMichael, assistant attorney-general, and Charles Chelsey, solicitor of internal revenue.

Of forty-six judgments pronounced at the June term of the United States circuit court at Raleigh, N. C., nineteen were for ku-kluxing.

The New Jersey State school commission will bring before the legislature a bill providing that no children under sixteen years be permitted to work in factories, unless they have attended school for three months a year. In no case will they be allowed to work more than forty-eight hours per week.

A Washington special says: Although the health of Chief Justice Chase has materially improved since his trip to the north-west, his friends still think he will not be able to preside at the opening of the supreme court next month, or to do any laborious work during the winter.

There is not a law office nor a library left in Chicago, except the few small duplicate libraries at the residences of the leading lawyers. There is not a paper showing that there is a suit pending in any of the six courts of record in Cook county, including the federal court. There is not an indictment in existence in the county against any one, not a judgment, not a petition in bankruptcy in the federal court.

The Indianapolis Journal says it has been assured by persons who profess to know the truth of what they state, that Attorney-General Hanna, of Indiana, will proceed, without delay, to bring suits for the recovery of the money abstracted from the State treasury by means of bogus vouchers for State printing. And that it is also reported that he will institute proceedings to compel the State officers to account for interest received on public funds farmed out on private account.

Judge Barnard of New York, in a recent charge to the grand jury, alluded to the irregularities existing in the city government. He said that one of the evils which should be stopped was the taking of illegal fees by the city and county officials. The election laws were flagrantly violated. It was his intention to keep the grand jury in session until after the election, so as to secure the people a fair election. In this connection he enlarged in general upon corruption, and announced it as a fact that nearly all the fast horses and fast women of the city are supported from the city treasury.

A remarkable libel suit, in which rival newspapers were plaintiff and defendant, has been decided in Bristol, England. The Western Morning News charged that the Daily Mercury made up its columns of borrowed advertisements, inserted without orders, and then tried to collect payment for them. Thereupon the Mercury sued the News for libel, and the jury actually awarded £400 damages to Mr. Latimer, the proprietor of the Mercury; the judge charging that the libel on the paper must be a libel upon somebody, and that somebody was very naturally the proprietor.

The Albany Law Journal.

ALBANY, OCTOBER 28, 1871.

THE SOCIAL EVIL.

The existence of prostitution, carried on as a trade or business, does not seem to be peculiar to civilized life. It was known and recognized in the days of Joshua, and his messengers, while investigating the strength and resources of the hostile city of Jericho, selected, as a base of operations, the house of Rahab, instead of an ordinary and more respectable inn. But, like all other occupations ministering to human passion, it finds its most luxuriant development in that period of national existence which follows the attainment of the greatest political power, and what is known as the stationary and declining period, This is evident from ancient history and modern experiIn fact, the decline of a people in political power can almost be measured by the advance of what we term the social evil. The two movements are not, indeed, simultaneous in their beginning; nor is one the cause of the other. The increasing evil is rather an indication of the coming decrease of power. Nations, as a rule, have risen suddenly, but the physical, intellectual and moral vigor which caused their rise were developed slowly; so they have gone down, not by degrees, but under some great disaster; yet the historian ascribes their fall to elements of weakness which have gradually entered into the body politic during many years.

ence.

We say that the rise of prostitution is an indication of political decline. The Athenians were apparently a powerful people in the days of Alcibiades, when prostitution was deified and worshiped. The war with Syracuse revealed their weakness. The character of this institution in Greece we know only from books and statues. But how it was in Rome and the Roman Empire we are all able to understand by more certain evidence.

Gibbon dates the decline of Rome from the age of Trajan and the Antonines. Trajan was born about A. D. 56. The city of Pompeii was buried during an eruption of Vesuvius, A. D. 79. Buried, but not destroyed, for modern explorers have dug away the lava from it and found preserved very many things that would not have lasted above ground, and which the books never told us about. The signs of the shops, taverns and bagnois remain to-day enduring witnesses of the habits and manners of Roman life. In and around the last-named establishments the indicia of business are of such a character as to shock the modesty of the not too sensitive Italians, and make known conditions of prostitution with which modern times are unfamiliar. These things were discovered in a provincial city, but they show what hardly occurred to the thoughts of the citizens of the

invincible empire, that the glory and power and intelligence of their high civilization were even then passing away.

We have had lately an evidence of what we assert to be a fact. In July, 1870, France believed herself to be the first power in Europe, and the world at large almost agreed with her in this belief. She certainly was the center of fashion, and the institution we have named flourished in her capital in a degree unequaled elsewhere in modern times. It was not as in some other countries merely tolerated, but it was taken under the protection of the law and regulated by statute. What France really was in all that makes a nation powerful and respected the war with Prussia determined.

In places where the common law is dominant, for the most part the business of prostitution is forbidden, and though the laws against it are, to a great extent, unexecuted, their existence doubtless has a great effect in limiting its results.

Propositions have been made, however, for adopting the French system and licensing houses of ill fame as inns are licensed, and we believe in one city this is actually done. It is claimed that if the law takes cognizance of the subject, and endeavors not to perform impossibilities by forbidding the existence of prostitution, but places all who are engaged in it under the surveillance of police authority, its evils, such as they are, will be, to as great an extent as is possible, remedied. We confess our unbelief in the advantages of such a course. While the laws against prostitution do not and never will eradicate it, they have an influence to make it disreputable, and so long as it is disreputable it will not increase very rapidly. Make it a legitimate employment, and its followers will acquire at once, what they do not have now, a sort of social standing. To-day our only pariah class are those women who offer their honor for sale. They are social and legal outlaws, and while they, in most instances, escape the penalty of the municipal law, they do not that of the law of society. This pursues them almost vindictively and allows no pardon, and while it sometimes seems unjust and cruel, its severity furnishes an inducement to female chastity that we ought to hesitate about weakening. That the adoption of the French system will weaken this inducement is evident from its effect in France. It is said that in speaking of a female who gains her livelihood from the town, the Parisian uses no distinctive appellation, but simply calls her a woman. When a prostitute loses her distinctive name here, we shall have little doubt about the approach of a national catastrophe as disastrous to us as the war of 1870 was to France.

Judge John McKinney, United States judge for the southern district of Florida, died on Thursday, the 12th instant, on board the steamer City of Houston, while on his way from Key West to his home in Pennsylvania. He was buried at Seguin's Point.

BANKRUPTCY POWER AND JURISDICTION.

The power lodged in a judge by the United States bankrupt law and the ramifications of the results of apparently incidental decisions, as well as the effect which the operation of this law has had and is having upon the commercial community and upon litigants, clients and lawyers, have commanded the attention of eminent jurists as to the usefulness of the law itself, while scarcely a man at the bar will venture a belief that it is just in all its workings. The imposing array of additional clerks, registers, messengers, assignees and other expensive employees, known to habitues in bankruptcy, are not the only source of dismay to client and practitioner. There are few negotiations concluded in which the advice of counsel is sought that may not, in some features, expose themselves to attack under the bankrupt law; and, unless each party is satisfied and acquainted with the positive solvency of all with whom he is dealing, a prospective litigation disturbs the balance of the transaction.

It is too common a remark among lawyers not residing at places where the United States district courts hold their sessions, that they do not pretend to know any thing about bankruptcy, much less to do any thing in its practice. This remark is neither fair to the profession nor to the gentlemen themselves. There is nothing new, abstruse or difficult to understand in the law itself, giving us, as it does in perhaps a simpler form, a system of bankruptcy borrowed from the old-established and frequently-revised English system. Scarcely a question arises under the United States law but finds its substantial counterpart in English reports, except those differences growing out of the peculiar relations of State and United States courts. Many subjects presented to our bankrupt courts as novel and perplexing questions might find a readier and sometimes a more healthy determination, if considered by the light of English law.

It cannot fairly be said that the operation of either of the earlier acts of congress, relating to bankruptcy, continued long enough to erect upon them any strata of American bankrupt law; yet the few reported contested cases under the law of '41 exhibit a breadth of research and a strict adherence to recognized principles on the part of bench or bar, with which the mass of accumulating discussions in the reported bankrupt cases of the present day do not favorably

The broad mantle of the language of the bankrupt act covers almost every weapon, and its defenseless victim sometimes quite suddenly finds himself before the bar for even-handed bankrupt justice.

Following the letter of the statute there seems little room for dispute in many cases which have received dispute most learned.

It is believed, however, that there are few matters of substantial litigation coming before our bankrupt courts under the present law which may not be readily solved by the application to each case of two inquiries, viz.: 1. What is the power of the court in the case? and, 2. In what way is the power of the court-if any. to be exercised?

Among the most important of the powers granted by the present statute are those which relate to the exercise of a summary jurisdiction.

There is vested in certain specified cases a power to seize the person of a debtor, as well as the power to seize or attach his property; the power to restrain him from his personal liberty or to make any disposition whatever of his own affairs, as well as the power to bring under the restraining influence of the court divers third persons who may or may not have any interest in the matters in controversy, and to restrain people generally from meddling with matters of which it is proposed the court shall take sole cognizance. Thus, the power to arrest, to attach and to enjoin may be exercised separately, or, indeed, conjointly and ex parte, and this without any statutory provision for security that the innocent may be in part protected. The court, has not adequate means to protect itself from imposition, or to shield innocent parties from the effects of orders which may prove to have been improperly granted; and rights are perhaps destroyed which the bankrupt court is powerless to restore, and for which it can afford the sufferers no remedy.

This is a power which is not, in this unqualified way, vested in any one court by any State in the Union.

It is a power which combines the exercise of the highest functions of a court of equity with the ordinary writs which issue from courts of law, usually as matters of cause, but only upon filing security. It is a power which in its various elements has in fact been already vested in the United States courts, but under statutory restrictions, and apportioned between the district court and the circuit court. While thus reposed, the limited jurisdiction of these courts made such powers of comparatively insignificant importance in our United States judiciary system. But now it is difficult to place a limit to the claims of the jurisdiction of a bankrupt court, and a jurisdiction once assumed carries with it these extraordinary and consolidated powers. We propose to examine the power and practice of our bankrupt court in relation to

INJUNCTIONS.

The district court in bankruptcy may issue its writs

of injunction in three classes of cases: 1. Against the alleged bankrupt himself; 2. Against other persons who it is alleged interfere with the alleged bankrupt's estate; 3. Against those whom the assignee in bankruptcy is entitled to have enjoined in a proper suit brought by him.

I. The bankrupt is in fact enjoined from the moment he learns of proceedings against him, or from the moment he may himself initiate proceedings. He is then in fact within the court, and he deals with his own affairs at his peril.

The statute leaves little room for dispute here, unless it be as to the proper cases wherein, on the application of a creditor, an alleged bankrupt may be enjoined. A party may or may not be a bona fide creditor, yet if he so alleges himself, gives prima facie proof thereof, and then sets forth the commission of acts prohibited by the statute, without further form the alleged bankrupt is enjoined from all business and called to answer the allegations of the petitioner. The injunction is practically an incident to an allegation of bankruptcy which may or may not have substantial merit, and which may or may not be essential in case the petitioner proved to be without standing as a bona fide creditor.

But the alleged bankrupt is in fact a defendant, and while he may suffer temporarily by the injunction, yet he may test the allegations against him by jury or otherwise, as provided by the statute, and save his commercial destruction if he can by refuting in a substantial trial the allegations of the petitioner. II. How is it, however, with the second class of cases; those "other persons" who may be enjoined from interfering with the bankrupt's estate?

1. The causes for each of these injunctions are similar. They are enumerated in the following extract:

SEC. 40. Upon filing the petition (of a creditor), if it shall appear that sufficient grounds exist therefor, the court shall direct the entry of an order requiring the debtor to appear and show cause, etc., why the prayer of the petition shall not be granted; and may also by its injunctions restrain the debtor and any other person, in the mean time, from making any transfer or disposition of any part of the debtor's property not excepted by this act from the operation thereof and from any interference therewith. * *

*

Now the term "other persons" is exceedingly broad, and includes any person, officer or corporation, who may be described to the court as having, claiming, or about to have or claím, some substantial benefit in and about the alleged bankrupt's estate. The power of the court, to apply one test, to enjoin "other persons" has a limitation that may be legally defined, and the manner of its exercise may be more accurately determined by an established standard than by the discretion of an individual. The power to enjoin "other persons" is evidently intended as a power to be exercised in the early stages of the bankruptcy proceedings. The injunction is intended for "in the mean time," i. e., until the return day of

the order obtained as the creditor's petition. It is before the appointment of an assignee, and the language seems to imply that it is designed as a conservative measure, to preserve intact the existing status of the bankrupt's estate and affairs until they can be seized and managed by his authorized representative in bankruptcy; to protect the estate until an assignee shall be chosen, when the assignee may assert or defend the bankrupt's rights. The bankrupt then has a legal representative, who is to stand in his shoes toward all his debtors, creditors and miscellaneous claimants. There is no reason to believe that the act meant that "other persons' can be enjoined any longer than until this opportunity had been afforded an assignee; for then the latter's rights are vested and can be enforced in every court and against all the world. Indeed no proper case is presented to the court in the proceedings up to this period which would authorize the bankrupt court to issue its perpetual injunction against "other persons" than the bankrupt, because no party has asked or is entitled to such a remedy, and no person except the bankrupt is yet proceeded against. It is only that a creditor has asked the court to assist him in preserving the estate; and now the individual creditor is, we may say, merged into the community of creditors represented by the assignee. The latter then seeks the enjoined and pursues them for his rights or abandons them. If he abandons them, the "enjoined" are placed in the dilemma of disposing of the property which it was designed by the court they should not dispose of, or of asking the court to remove from them an injunction which the assignee virtually acknowledges is inoperative against them. This awkward attitude is | avoided by the construction that "other persons," under this section of the statute, are only to be enjoined until the appointment of an assignee and a reasonable time thereafter for him to assert the rights the enjoined were about to have disturbed. This is the only reasonable and consistent interpretation of the statute.

2. Now in what manner ought this power to enjoin "other persons" to be exercised? This is a power granted in derogation of the common law, and the statute in regard to it should be strictly construed. The principles of equity are part of our common law, and injunctions, temporary or permanent, never issue except against a party to a suit (Fellows v. Fellows, 4 I. Ch. R. 25), and then before judgment only upon special cause shown. If an injunction is asked for against persons not parties, these other persons are brought in by a supplemental bill, and they then may answer and defend, or apply upon petition or new affidavits to dissolve the injunction.

It is sometimes claimed that the bankruptcy proceedings take the place of a suit. For some purposes they do. But the test is, who would be bound as to the right or wrong of this injunction by their determination? Certainly not "other persons" not par

ties to the proceedings, and who, perhaps, claim adversely to the bankrupt court and all who invoke its powers against him, and who have not been afforded opportunity to test their claim upon a proper trial.

The true rule, therefore, is, that the power in section 40 to enjoin "other persons" is circumscribed, and only to be exercised according to the established legal principles applicable to the use of the power to enjoin. Although the authority is discretionary, that discretion is to be exercised in close analogy to the ordinary proceedings in chancery. 1 Atk. 77; 3 id. 817; 19 Ves. 235 (note).

3. The injunction contemplated by this section is interlocutory; it is invoked by one of the parties to the proceedings, either by the bankrupt or the creditor pursuing him in bankruptcy; it is summary in its character; it is issued not as the result of a trial, or of a suit wherein that is the whole or a part of the relief sought, but upon affidavits, and irrespective of any rights assumed or to be contested on the part of the party enjoined. It follows, then, that this injunction assimilates itself to that granted for a temporary purpose in other proceedings where a temporary injunction is necessary and proper. There is, then, no reason why the established principles of law and the practice of equity should not apply with equal force to these as well as to any other interlocutory injunctions.

There is nothing in the bankrupt act, or the rules of practice prescribed under it, or in the judicial history of other bankrupt laws, that removes the bankrupt court beyond the authority of well-settled principles of law and practice.

Indeed, the United States statutes, which have so carefully guarded and described the powers and practices of United States courts, impose a duty on United States judges, as well when sitting in bankruptcy as on other occasions, to adhere faithfully to established precedent when it can be found, and to the strict construction of the statute when no precedent is at hand.

It is, for instance, provided by section 5, of the act of March 2, 1793, that injunctions shall only issue from United States courts upon notice; and, in exercising this power to enjoin under previous statutes applicable to special cases, it has been held, that the court must proceed according to the standard rules in equity. 11 Peters, 166.

Some have gone further, and insisted that the statute is literally applicable to all cases in United States courts where an injunction is sought for. There does not seem to be any thing unreasonable or inconsistent in this conclusion; because the power to enjoin without notice, although formerly possessed by an equity court of general jurisdiction, was always cautiously exercised, and, except in rare cases, where time appeared essential to justice, injunctions were not issued unless upon notice and after hearing.

Storey, J., in the early administration of the bank

rupt act of 1841, once expressed an opinion that the acts of congress touching the jurisdiction of district courts in issuing injunctions do not apply to bankrupt cases. He gives no reason, however, for his opinion except to say that the acts "leave the jurisdiction to grant injunctions upon the general practice and principles which govern courts of equity." 1 N. Y. Leg. Obs. 292. Now section 6, act of 1841, says that the jurisdiction in bankruptcy matters is "to be exercised summarily in the nature of summary proceedings in equity." The case is not reported as a well considered one, although it may have been.

It is questioned whether all the powers of a court of equity exist in a bankrupt court as such, or whether the equity jurisdiction of the district court in bankruptcy is not confined to the suits which the statute says the assignee may bring (section 1, act of March 2, 1867) on the equity side of the court.

The opinion of Story loses more force as a present authority when it is remembered that the act of 1841 had no provision expressly for a temporary injunction, and injunctions under this opinion would only be granted in suits where the relief was appropriate, or upon the same showing as would be necessary if a suit were brought. The paramount United States statute applicable to this equitable remedy modifies the common-law practice of dispensing with notice in unusual emergencies and demands notice in all cases. Judge Story cites no cases, and omits comment on the reasoning that the statutes as to notice are broad enough to apply to all cases where the remedy by injunction is sought to be employed.

Betts, J., better expressed the principle that the bankrupt court, in issuing equitable remedies, must conform to established principles and practice of equity when he said, "it is not the course of the court to allow an injunction merely on the apprehension of a creditor. * The court interferes with this high process only in case of actual and imminent danger to the property of the bankrupt, and not as a mere preventive against its possible waste or misapplication." 1 N. Y. Leg. Obs. 8.

*

And even where, by connivance of third parties, a clear case of an embezzlement of bankrupt's estate was made out, he required notice and security before enjoining the suspected parties, and he placed the power of the court to enjoin under the high equity powers given to the bankrupt court. Ib. 249.

It is, then, in the exercise of special equity power granted by statute, established in its use and application for centuries, and modified in its practice by United States statutes applicable to the use of such a power, that the remedy of an injunction is employed in bankruptcy. And if it is assumed that the statutes as to notice in the United States courts do not apply to bankrupt injunctions against "other persons" under section 40, which is the present theory governing their practice, it is incontestible that these injunctions do come under the established principle and practice