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THE

AMERICAN LAW TIMES.

PUBLISHED IN CONNECTION WITH THE

AMERICAN LAW TIMES REPORTS.

EDITED BY

ROWLAND COX.

NEW SERIES, VOLUME 4.

NEW YORK:
PUBLISHED BY HURD AND HOUGHTON.
Cambridge: The Riverside Press.

1877.

RIVERSIDE, CAMBRIDGE:

PRINTED BY H. 0. HOUGHTON AND COMPANY.

THE AMERICAN LAW TIMES.

New SERIES. — JANUARY, 1877. — Vol. IV., No. 1.

RIES.

NOTES OF OPINIONS, DECISIONS, AND ORDERS

OF THE

SUPREME COURT OF THE UNITED STATES.

DECEMBER TERM, 1876.

Monday, November 13, 1876. No. 82. James A. Lovejoy et al., plaintiffs in error, v. Carroll C. Spofford et al. In error to the Circuit Court of the United States for the District of Minnesota. Mr. Justice Hunt delivered the opinion of the court, reversing the judgment of the said circuit court, with costs, and remanding the cause, with directions to award a new trial.

In this case it is held that to discharge a member of a firm from the claim of one who has had no dealing with it prior to its dissolution, but who knew of its existence, and who were its members, it is not necessary that either actual notice or public notice in a newspaper be shown, but only that the notice of dissolution was so generally communicated to the business men of the vicinity as to be likely to come to the knowledge of all, and a judgment, based on a refusal to charge the jury that if such notice was given the jury were at liberty to infer knowledge, is reversed.

No. 48. Horace B. Claflin, plaintiff' in error, v. Julius Houseman, assignee, &c. In error to the Supreme Court of the State of New York. Mr. Justice Bradley delivered the opinion of the court, affirming the judgment of the said supreme court, with costs.

In this case the court affirm a judgment recovered against the plaintiff in error by the assignee in bankruptcy in the state court for the amount of a judgment obtained by him against bankrupts four months prior to the commencement of proceedings in bankruptcy, holding that an assignee in bankruptcy, under the Act of 1867, as it stood before the revision, had authority to bring suit in the state courts wherever these courts are invested with appropriate jurisdiction suited to the nature of the case.

No. 61. The United States, plaintiff in error, v. Bernard Lariviere et al. In error to the Circuit Court of the United States for the District of Minnesota. Mr. Justice Davis delivered the opinion of the court, reversing the judgment of the said circuit court, and remanding the cause with directions to overrule the demurrer and to proceed in accordance with law and justice.

The defendants in error in this case were indicted for selling liquor in the Indian country. As it appeared that the territory where the offence was committed was a portion of the State of Minnesota, the court below sustained a demurrer to the indictment, holding that the effect of the admission of Minnesota into the Union was to withdraw this territory from the Indian country. It is here said that as the prohibition was extended to the lands when ceded by the Indians to the United States, the provisions of the treaty still apply to them. The fact that the ceded territory is within the limits of Minnesota is a mere incident and not the foundation of the prohibition. The act of Congress, imported into the treaty, applies alike to all Indian tribes occupying a particular country, whether within or without the state lines, and, as it is based exclusively on the federal authority over the subject matter, there is no disturbance of the principle of

VOL. IV.

[No. 1.

Vol. IV.)

NOTES OF OPINIONS, DECISIONS, AND ORDERS.

state equality. The power to make treaties with the Indian tribes, it is said, is coextensive with the power to make treaties with foreign nations.

No. 53. Michael O'Hara et al., appellants, v. John G. Mac Connell et al., assignees. Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. Mr. Justice Miller delivered the opinion of the court, reversing the original de cree of the said circuit court, with costs, and remanding the cause for further proceedings in accordance with law and justice.

In this case the court reversed the decree below, holding that it was the duty of the court, when the bill on its face showed that the party whose interest was the principal one to be affected by the decree was both a minor and a femme couvert, and that no one appeared for her in any manner to protect her interest, to have appointed a guardian ad litem for that purpose. If neither her husband nor he who is styled her guardian in the bill appeared to defend her interest, it was the more imperative that the court should have appointed some one to do so; also, that if Mrs. O'Hara had been under no disabilities, it was error to have taken the bill for confessed, for want of appearance on the return day of the writ.

No. 43. Samuel J. Sherman, plaintiff in error, v. D. S. D. Buick. In error to the Supreme Court of the State of California. Mr. Justice Miller delivered the opinion of the court, reversing the judgment of the said supreme court, with costs, and remanding the cause with instructions to order a new trial, in conformity with the opinion of this court.

In this case the court reversed a judgment below sustaining the claim of the defendant to land in California, under a patent from the state, and upholds a patent from the United States to the plaintiff for such lands, holding that the state patent was issued without authority; as the grant from the United States to the state provided that when the grant covered lands which had been taken up by private parties the state should select other lands in lieu thereof, and finding that the plaintiff had settled upon the lands and ever since remained in possession. Mr. Justice Field did not sit in this cause, and took no part in its decision.

No. 297. Charles Kerrison, assignee, 8c. appellant, v. A. T. Stewart & Co. Appeal from the Circuit Court of the United States for the District of South Carolina. Mr. Chief Justice Waite delivered the opinion of the court, affirming the decree of the said circuit court, with costs.

In this cause the rule is announced that under some circumstances a trustee may represent his beneficiaries in all things relating to their common interest in the trust property. He may be invested with such powers and subjected to such obligations that those for whom he holds will be bound by what is done against him, as well as by what is done by him. The difficulty lies in ascertaining whether he occupies such a position, not in determining its effect if he does. If he has been made such a representative, it is well settled that his beneficiaries are not necessary parties to a suit by him against a stranger to enforce the trust, or to one by a stranger against him to defeat it in whole or in part. In such cases the trustee is in court for and on behalf of the beneficiaries, and they, though not parties, are bound by the judgment unless it is impeached for fraud or collusion between him and the adverse party.

Monday, November 20, 1876. No. 69. The Home Insurance Co., plaintiff in error, v. The Baltimore Warehouse Co. In error to the Circuit Court of the United States for the District of Maryland. Mr. Justice Strong delivered the opinion of the court, affirming the judgment of the said circuit court, with costs and interest.

In this case it is held that a policy of insurance taken out by warehouse-keepers against loss, &c., on “ merchandise, their own or held by them in trust, or in which they have an interest or liability," contained in a designated warehouse, covers the merchandise itself, and not merely the interest or claim of warehouse-keepers. If the merchandise be destroyed by fire the assured may recover the entire value of the goods not exceeding the sum insured, holding the remainder of the amount, after satisfying their own loss, as trustees for the owners. In such a case, where the warehousemen and the depositors take out policies covering the same goods, the second policies constitute double insurance, and they bear a loss proportionately. In a case of contributing policies, adjustment of loss made by an expert may be submitted to the jury, not as evidence of the facts therein or as obligatory, but for the purpose of assisting the jury

Vol. IV.]

NOTES OF OPINIONS, DECISIONS, AND ORDERS.

(No. 1.

in calculating the amount of liability of the insurer upon the several hypotheses of facts maintained in the adjustments if they find either hypothesis correct. No part of a letter written as an offer of compromise is admissible in evidence.

No. 652. Charles Morgan, plaintiff in error, v. The State of Louisiana. In error to the Supreme Court of the State of Louisiana. Mr. Justice Field delivered the opinion of the court, atlirming the judgment of the said supreme court, with costs.

The plaintiff in error claimed that certain property of the New Orleans, Opelousas & Great Western Railroad Company, which had come into his hands by purchase at a mortgage sale and at a sheriff's sale, was exempt from taxation as his property, because it was exempt by law while the property of the company. The court hold that only a francbise of a railroad company, which is defined as a right or privilege essential to the operations of the corporation, such as the franchise to run cars, to take tolls, to appropriate earth and gravel for the bed of its road, or water for its engines, and the like, may be conveyed to a purchaser of the road as part of the property of the company; that immunity from taxation is not one of these positive rights or privileges essential to the working of the road, but is personal in its character and incapable of transfer without express statutory direction.

No. 75. James Hendricks, plaintiff in error, v. A. G. Lindsay et al. In error to the Circuit Court of the United States for the Northern District of New York. Mr. Justice Davis delivered the opinion of the court, affirming the judgment of the said circuit court, with costs and interest. This cause involved only questions of fact.

No. 88. Alfred E. and Chas. E. Tilton, appellants, v. Jos. B. Cofield et al. Appeal from the supreme court of the Territory of Colorado. Mr. Justice Swayne delivered the opinion of the court, reversing the decree of the said supreme court, with costs, and remanding the cause with directions to dismiss the bill. In this cause the court rules that the facts do not show such fraud as to sustain the bill.

No. 47. The Steamboat Atlas, &c. appellants, v. The Phenix Insurance Co. Appeal from the Circuit Court of the United States for the Eastern District of New York. Mr. Justice Clifford delivered the opinion of the court, reversing the decree of the said circuit court, with costs, and remanding the cause with directions to reverse the decree of the district court, and to enter a new decree in favor of the libellants for the entire damages ascertained by the commissioner.

It appeared from the record in this cause that the libellants became the insurers of the cargo of the canal-boat named in the libel, consisting of linseed, in the sum of fourteen thousand five hundred dollars, for a voyage from the port of New York to the port of New Brunswick, in the State of New Jersey ; that the canal-boat, with her cargo on board, was taken in tow at the port of departure by the steam-tug called The Kate; that the steam-tug with her tow, including the canal-boat and two other vessels, proceeded in safety to New Brighton, where the whole flotilla remained until the next morning, when they started for the port of destination, the steam-tug heading northwest-by-north, and taking her course across the kills directly for Port Johnson, on the Jersey shore; that the steam-tug with the canal-boat and the two other vessels in tow kept that course until she was within one hundred and fifty yards of the shore, when the master, being then in the pilot-house, heard the whistle of a steamboat about one tenth of a mile distant; that it was a single blast, being the signal that the respective boats as they approached should pass to port; that the master of the steam-tug having the canal-boat in tow answered the signal by blowing his whistle twice, which is the proper signal that the boats should pass to starboard, it being unsafe for him, owing to the state of the tide and the conformation of the adjacent shore, to attempt to pass the approaching vessel on the port side; that the signal given was the proper one; and the charge is that the master of the steam-tug immediately starboarded his helm and that the approaching vessel, which proved to be the steam-tug The Atlas, within a minute ran into the steam-tug having the canal-boat in tow, with great force and violence, staving her in from her plank-shear to the third plank below her water line, which caused the steam-tug and canal-boat she had in tow to sink, whereby the cargo of the canal-boat became a total loss. It was decreed below that the libellants should recover one half the damages. This decree is here reversed, the court holding that the decree should have been for the entire amount of damages as ascertained by the master.

No. 122. H. W. Shacker, plaintiff in error, v. The Hartford Fire Insurance Co. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Chief Justice Waite delivered the opinion of the court, dismissing the writ of error in tbis cause for the want of jurisdiction.

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