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Vol. IV.]

DIGEST OF CASES.

[No. 3.

No. 168. The Electric Match Company et al., plaintiffs in error, v. The United States. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Chief Justice Waite announced the decision of the court, affirming the judgment of the said circuit court in this cause.

No. 773. Peter Doyle, Secretary of State, Wisconsin, plaintiff in error, v. State of Wisconsin, ex rel. Drake. Mr. Chief Justice Waite delivered the opinion of the court, deny. ing the motion to set aside certain proceedings of the supreme court of Wisconsin.

DIGEST OF CASES

PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI

ODICALS.

ABBREVIATIONS. Albany L. J. – Albany Law Journal, Albany, N. Y., WEED, Parsons & Co. Am. Law Rec. — American Law Record, Cincinnati, O., H. M. Moos. Am. Law Reg. — American Law Register, Philadelphia, Pa., D. B. CANFIELD & Co. Cent. L. J. - Central Law Journal, St. Louis, Mo., Soule, THOMAS & WENTWORTH. Chicago L. N. - Chicago Legal News, Chicago, Ill., Chicago LEGAL News Co. Ins. L. J. — Insurance Law Journal, New York, C. C. Hine, 176 Broadway. Int. Rev. Rec.Internal Revenue Record, New York, W. P. & F. C. Church. La. L. J. Louisiana Law Journal, New Orleans, La Leg. Chron. Legal Chronicle, Pottsville, Pa., Sol. Foster, Jr. Leg. Int. — Legal Intelligencer, Philadelphia, Pa., J. M. Power WALLACE. Mo. West. Jur. — Monthly Western Jurist, Bloomington, Ill., T. F. Tipton. N. B. R. – National Bankruptcy Register, New York, CAMPBELL & Co. Pac. Law Rep. — Pacific Law Reporler, San Francisco, Cal., J. P. BOGARDUS. Pittsb. L. J. - Pittsburg Legal Journal, Pittsburg, Pa., J. W. & J. S. MURRAY. W. L. R. - Washington Law Reporter, Washington, D. C., Jno. L. GINCK. W. N. C. - Weekly Notes of Cases, Philadelphia, KAY & Bro. West. Jur. — Western Jurist, Des Moines, Iowa, Mills & Co.

ADMIRALTY. 1. CONTRACT TO BUILD SHIP. — OWNERSHIP. — Upon a contract to build and deliver a ship after a successful trial trip at sea, although the party for whom it is built in pursuance of the contract inspects and approves the work as it progresses and makes payments thereon, in proportion to such progress, such party does not thereby become the owner of such vessel, nor until the final completion and delivery thereof. The Revenue Cutter, D. C. U. S. Or., Pac. Law Rep., January 23, 1877.

2. MARITIME CONTRACT DEFINED. —A vessel launched and afloat upon the navigable waters of this district (Oregon) is a ship, and a contract to furnish materials for her equipment is a maritime one. The ruling in The Eliza Ladd affirmed. Ib.

3. POSSESSION DEFINED. — A party contracted with the United States to build and deliver a vessel after a successful trip at sea, and the latter in pursuance of the contract kept a superintendent at the vessel during the progress of the work, with power to reject or approve all materials

eenue Cutter," until the party

[No. 3.

Vol. IV.]

Digest Of Cases.

used in her construction. Held, that the contractor was in possession during the progress of the work and not the United States, and that the vessel was not exempt from the process of a court in a suit to enforce a lien against her for materials furnished for her equipment at the request of the contractor. Ib.

4. IBID. — The builder under such contract having failed to perform the same, and the contract being that the United States might in such case, at the option of the secretary of the treasury, complete the work at the expense of the contractor: Held, that until such option was exercised, the vessel was not and could not rightfully be taken into the possession of the United States; and that when it was, the United States would take possession merely as the agent of the contractor to finish the vessel for and on its account and risk. 16.

See PLEADING AND PRACTICE, 5.

BANKRUPTCY. 1. MECHANIC'S LIEN. — PROCEEDINGS IN BANKRUPTCY TO PRESERVE. - A mechanic's lien which derives its existence wholly from a state statute, and the continuance of which is by such statute made dependent upon the commencement of a suit within a prescribed period, is not preserved as a valid incumbrance on the property, when no suit is commenced in the state court, and no step taken in the bankrupt court equivalent to such suit, within the time limited by the statute for the preservation and enforcement of the lien, although the proceedings in bankruptcy are commenced within that period. A lien claimant can, as an equivalent for commencing a suit in a state court, prove or assert his lien in the bankruptcy proceedings within the time limited by the statute creating the lien. In re Brunquest, D. C. U. S. E. D. Wisc., 14 N. B. R. No. 12.

2. SEPARATE BUSINESS AND ACCOUNTS. — If the bankrupts, in addition to other business, carried on a brokerage business, for which they kept a separate account, and a separate bank account, a party whose bonds were sold is entitled to payment in full, if the amount in the bank is more than sufficient to pay all claims against the brokerage department. Voight v. Lewis, Trustee, D. C. U. S. E. D. Pa., Ib.

3. ATTACHMENT. — BILL OF SALE. — PREFERENCE. If an insolvent defendant in an attachment suit gives a bill of sale of the attached property to the receiptor, with the understanding that the property shall be sold and the property applied towards the payment of the debt of the attaching creditor, without regard to the attachment, and without a demand perfected in execution, the bill of sale is a preference; but if the understanding was that the proceeds should be applied only upon demand duly made on execution, it is valid. Parsons v. Topliff, S. C. Mass., Ib.

4. IF THERE IS AN OMISSION TO ENTER AN ORDER REFUSING A DISCHARGE, the bankrupt court may make it nunc pro tunc if no rights of third parties have intervened which can be prejudiced by making the record speak the truth. In re Drisco, C. C. Ú. Š. Mass., Ib.

5. SECOND PETITION. — If a party has contracted new debts, since the filing of the first petition, he may file a second petition in bankruptcy. Ib.

Vol. IV.)

DIGEST OF Cases.

[No. 3.

6. GOODS ON COMMISSION. — FIDUCIARY DEBT. — If goods were consigned to the bankrupt to sell on commission, and he failed to account for the proceeds, this is a fiduciary debt, and will not be released by a discharge. — Meador v. Sharpe, S. C. Ga., Ib. No. 11.

7. THE COST OF AN ATTACHMENT which has been dissolved by bankruptcy may be paid out of the fund; unless that the attachment did not and could not operate to preserve the property for the general creditors. Ex parte Holmes, S. C. Mass., Ib.

8. IF THE BANKRUPT, BEING TRUSTEE, DEPOSITED THE TRUST FUNDS IN BANK with his own in his own name, the mode of ascertaining how much belongs to the trust estate is to take the deposits and withdrawals in the order of their dates, find out how much of the balance belongs to the trust, and how much to the general fund, and divide accordingly. Ex parte Hobbs, D.IC. U. S. Mass., Ib.

9. MARSHAL'S FEES. — COMMISSIONS FOR DISBURSEMENTS. — The marshal is entitled to a fee of two dollars for serving a copy of the petition as well as the order to show cause on the debtor in an involuntary case. The allowance of a commission for disbursements is not limited to disbursements for court expenses. The marshal is not entitled to a commission on the value of property for the seizure or custody thereof. In re Burnell Brothers, D. C. U. Š. E. D. Wisc., Ib.

10. THE MEANING OF THE WORD " TRADESMAN" in section 5110, is substantially the same as shopkeeper. Persons who buy and sell in a small way, merely by way of eking out their living, which is principally earned in other ways, are not tradesmen. As the word tradesman is in a section that is almost penal, it should be confined in its meaning. In re Cote, D. C. U. S. Mass., Ib.

11. COMPOSITION. — SECURED CREDITOR. — LEVY OF EXECUTION ON PERSONAL PROPERTY. — If a resolution of composition has been duly ratified, it confines the secured creditor to his security, and discharges the debtor from personal liability for the secured debt. If a composition is entered into for cash payments, secured by a mortgage on real estate, the district court has no jurisdiction to restrain a creditor from levying an execution on personal property, although the name of such creditor was properly placed on the list of creditors. In re Lytle, D. C. U. S. W. D. Pa., Ib. No. 10.

BILLS AND NOTES. FRAUD OR ILLEGALITY, IN THE INCEPTION OF A NEGOTIABLE PROMISSORY NOTE TRANSFERRED BEFORE MATURITY, will vitiate the same in the hands of a person having knowledge of the fraud or illegality; and when such fraud or illegality is established, the burden of proof is devolved upon the holder, to show that he took the note in good faith or for value. But when such note is taken in good faith and for value, the holder is vested with a good title, notwithstanding there may have been circumstances connected with the transfer to him sufficient to put an ordinarily prudent man on inquiry. Hamilton v. Marks, S. C. Mo., Am. Law Reg., January, 1877.

BROKERAGE. RIGHT OF BROKER TO COMMISSIONS. — When a broker authorized to sell at private sale has commenced a negotiation, the owner cannot, pend

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ing the negotiation, take it into his own hands and complete it either at or below the price limited, and then refuse to pay the commissions. Plaintiff's right to recover commissions for making a sale is not affected by the fact that he was to be one of the purchasers if he acted openly and fairly. Reed v. Reed, S. C. Pa., Leg. Int., February 9, 1877.

COMMISSION.
See BROKERAGE.

COMMON CARRIER. NEGLIGENCE. — LIMITING COMMON LAW LIABILITY BY SPECIAL CONTRACT. — Where a railway company has, in fact, only one rate at which it carries or offers to carry cattle from 0. to S., although it may have posted up, in the office of its agent at O. other and higher rates; and an owner of cattle, without anything being said about any special contract, but with the consent of the company, places his cattle in the company's cars at O., to be transported to S.; and the agent of the company at 0. then presents to the shipper a certain special contract for carrying said cattle at the full rate at which the company carries cattle, though less than said posted rates and with certain restrictions, limitations, &c., as to the company's responsibility; and the agent then demands that the shipper shall sign said special contract or have his cattle unloaded ; and the agent gives to the shipper no other option or alternative; and the shipper then signs said special contract: Held, that said special contract, so far as it attempts to restrict the liability of the railway company, or to impose additional burdens upon the shipper as conditions precedent to a recovery for damages resulting from the negligence of the railway company, is without consideration and void. Kans. Pac. R. W. Co. v. Reynolds, S. C. Kans., Cent. L. J., January 19, 1877.

CONSTITUTIONAL LAW. OF THE POWER OF THE COURTS TO EXAMINE INTO MANNER IN WHICH ACT WAS PASSED. — A valid statute can only be passed in the manner prescribed by the Constitution; and when the provisions of that instrument, in regard to the manner of enacting laws, are wholly disregarded in respect to a particular act, it must be declared a nullity, though having the forms of authenticity.

Whenever a question arises in a court of law as to the existence of a statute, or as to the time when it took effect, or as to its precise terms, the judges who are called upon to decide such question have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; the best and most satisfactory evidence in all cases being required. And if a statute can be shown by undoubted and competent evidence never to have passed the two houses of the legislature, substantially, as it was approved by the governor, and sealed with the great seal, and published, it is a nullity; and it is the duty of the court so to declare it. Legg V. Mayor of Annapolis, Ct. App. Md., Am. Law Reg., January, 1877. See MUNICIPAL BONDS, 2 ; PLEADING AND PRACTICE, 4; TAXATION. Vol. IV.)

DIGEST OF CASES.

[No. 3.

CONTRACT.
See ADMIRALTY, 1; COMMON CARRIER ; MUNICIPAL BONDS.

CONVERSION OF STOCK.

See DAMAGES.

CRIMINAL LAW. 1. SENTENCE AFTER ADJOURNMENT OF COURT FOR TERM AT WHICH TRIAL IS HAD. — If the judge who tries an indictment upon which a verdict of guilty is found fails to pronounce sentence during the term of the court at which the verdict was found, by accident, mistake, or design, he may do so at any subsequent term, and so may any other judge holding the same court. U. S. v. May, S. C. D. C., W. L. R., January 22, 1877.

2. ASSAULT WITH INTENT TO COMMIT MANSLAUGHTER. — Under a statutę which provides that “if any person shall unlawfully kill any human being without malice express or implied, either voluntarily upon a sudden heat, or involuntarily, but in the commission of some unlawful act, such person shall be deemed guilty of manslaughter ;” and a person indicted for an assault, or an assault and battery with intent to commit manslaughter, may be convicted of the whole charge, or acquitted of the attempt to commit manslaughter and found guilty of the misdemeanor only. State v. Throckmorton, S. C. Ind., West Jur., January, 1877.

DAMAGES. CONVERSION OF STOCK. — In an action for conversion of stock, if plaintiff waives the tort and sues in assumpsit, the measure of damages is the market value of the stock at the time of conversion. It is not the rule, even in the action of trover in such a case, that the plaintiff is entitled to recover the highest price which the stock would have commanded at any time before the trial. That rule is confined to the case where there is a duty or obligation devolved upon a defendant to deliver such stock at a particular time, and that duty or obligation has not been fulfilled. Wagner v. Peterson, S. C. Pa., Leg. Int., February 9, 1877.

DIVORCE.
See PLEADING AND PRACTICE, 1.

ELECTION. 1. PRESIDENTIAL ELECTOR. — A MEMBER OF THE CENTENNIAL COMMISSION holds an office of trust under the United States which makes him ineligible as a presidential elector. In re Corliss, S. C. R. I., Am. Law Reg., January, 1877.

2. INELIGIBLITY BY REASON OF HOLDING SUCH OFFICE at the time of the election cannot be removed by a subsequent resignation of the office. 1b.

3. THE EFFECT OF SUCH INELIGIBILITY of the person receiving the

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