Vol. IV.] NOTES OF OPINIONS, DECISIONS, AND ORDERS. [No. 1. tion on the original judgment has been issued, and a return of nulla bona made by the proper officer; that the truth of this return cannot be questioned in subsequent proceeding against the sureties. Nor can the officer making the return be compelled to amend or modify it unless he desires to do so. The fact that the defendant in the original judgment has been garnisheed, or the judgment sold at the instance of the creditors of the plaintiff, is no defence for the sureties in the proceeding against them, where they have not been made parties to any such proceeding to appropriate the original judgment against their principal. No. 109. The Indianapolis & St. Louis Railroad Co., plaintiff in error, v. Henry Horst. In error to the Circuit Court of the United States for the District of Indiana. Mr. Justice Swayne delivered the opinion of the court, affirming the judgment of the said circuit court, with costs and interest. In this case the court aflirms a judgment recovered by Horst against the company for damages sustained while travelling on a pass with his stock, in consequence of falling from the top of a car while a change of the caboose was being made, the court finding that the charge of negligence on the part of the agents of the company was sustained. No. 105. Emory E. Norton, assignee, &c. plaintiff in error, v. Edgar A. Switzer. In error to the Supreme Court of the State of Louisiana. Mr. Justice Clifford delivered the opinion of the court, affirming the judgment of the said supreme court, with costs in this court. It is here said that state legislatures have no authority to create a maritime lien; nor can they confer any jurisdiction upon a state court to enforce such a lien by a suit or proceeding in rem, as practised in admiralty courts. Causes of action giving rise to a maritime lien, whether contracts or torts, may, however, be prosecuted in other modes of proceeding as well as in rem in admiralty, if the party chooses to waive his lien and proceed in personam or at law. No. 765. A. Yznaga Del Valle, plaintiff in error, v. Charles K. Harrison et al. In error to the Circuit Court of the United States for the District of Louisiana. Mr. Chief Justice Waite delivered the opinion of the court, dismissing the writ of error for want of jurisdiction. No. 125. Frederick Herhold, plaintiff in error, v. Clark W. Upton, assignee, &c. 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, with costs and interest. No. 104. The United States, plaintiffs in error, v. Annie Fox et al. Mr. Chief Justice Waite announced the decision of the court, ordering this cause for reargument. No. 150. Robert P. Dodge et al., appellants, v. The Freedman's Savings & Trust Company. Appeal from the Supreme Court of the District of Columbia. Mr. Justice Hunt delivered the opinion of the court, affirming the decree of the said supreme court, with costs. In this case the principle is reaffirmed that declarations made by the holder of a chattel mortgage, or a promissory note, while he holds it, are not competent evidence in a suit upon it, or in relation to it by a subsequent owner; hence, the declarations of W. S. Huntington, who at one time held certain notes made by Dodge, that they were paid, are not evidence to defeat a recovery thereon in the hands of the bank. No. 3. (original). The State of Florida, complainant, v. E. C. Anderson et al. Mr. Justice Bradley delivered the opinion of the court, decreeing the amount of money returned into this court be paid over to the State of Florida. No. 118. Richard N. Windsor et al., devisees, &c. plaintiff in error, v. William N. McVeigh; No. 163. Ann Gregory, plaintiff in error, v. Wm. N. McVeigh. In error to the Corporation Court of the city and county of Alexandria, Va. Mr. Justice Field delivered the opinion of the court, affirming the judgments of the said corporation court in these causes, with costs and interest on amount of damages recovered. Dissenting, Mr. Justice Hunt, Mr. Justice Miller, and Mr. Justice Bradley. These were actions by McVeigh to recover property which had been confiscated. The court below held that McVeigh had not had suflicient notice of the confiscation proceedings, and judgment was given for him. That judgment is here affirmed, the court holding that the jurisdiction acquired by the seizure in such cases is not to pass upon the question of forfeiture absolutely, but to pass upon that question after opportunity had been afforded to the owners or parties interested to appear and be heard upon the charges against them. Some notification beyond that arising from the seizure is essential, prescribing the time within which appearance must be made, and not being given in these cases by the usual modes, the decree of condemnation is held to be void. No. 124. H. P. Bigelow, administrator, &c. plaintiff in error, v. The Berkshire Life Vol. IV.] DIGEST OF CASES. [No. 1. Insurance Co. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Justice Davis delivered the opinion of the court, affirming the judgment of the said circuit court in this cause, with costs. In this case the court held that where the policy of insurance provided that it should be void in case the insured should commit suicide, sane or insane, the fact appearing that death was by suicide, the plea of insanity or of unconsciousness of act is no answer to the allegation of suicide; and it is said that it is not perceived why insurance companies cannot limit their risks in any manner they see fit, provided the insured is told in proper language of the extent of the limitation, and it is not against public policy. DIGEST OF CASES PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI - ODICALS. ABBREVIATIONS. · Albany Law Journal, Albany, N. Y., WEED, PARSONS, & Co. Albany L. J. -American Law Register, Philadelphia, Pa., D. B. CANFIELD & Co. Ins. L. J.-Insurance Law Journal, New York, C. C. HINE, 176 Broadway. Leg. Chron. Legal Chronicle, Pottsville, Pa., SOL. FOSTER, JR. Leg. Gaz. Legal Gazette, Philadelphia, Pa., KING & BAIRD. Leg. Int.-Legal Intelligencer, Philadelphia, Pa., J. M. POWER Wallace. ADMIRALTY. 1. REVISED STATUTES, SECTIONS 1956 AND 4337.- A vessel is not engaged in the violation of section 1956 of the Revised Statutes, which provides that "no person shall kill any . . . . fur, seal . . . . within the limits of Alaska Territory," &c., unless such vessel is used or employed in the actual killing of such seal; and a mere preparation or intention upon the part of her master or owners so to employ her is not sufficient to constitute the offence, if for any reason no seals are killed. A vessel enrolled and licensed for the fisheries does not violate section 4337 of the Revised Statutes, which prohibits such vessel from proceeding on a foreign voyage without being registered, by touching at, or entering, the foreign port of Victoria, for supplies or any purpose other than trade, on her way from San Francisco to the fishing grounds on the northwest coast. The Ocean Spray, D. C. U. S. Or., Cent. L. J., December 1, 1876; Pac. Law Rep., December 5, 1876. 2. WHO ARE MARINERS. to assist in the main purpose [No. 1. All persons who are employed on a vessel of the voyage are mariners, and, therefore, persons who shipped on The Ocean Spray at Victoria as sealers, to take that being the object of the voyage, — are seal in the northern waters, mariners, and have a lien upon the vessel for their wages. 16. When a voyage 3. STOPPAGE OF VOYAGE. RIGHTS OF SEAMEN. is broken up or lost by the act or fault of the master or owner, the seamen are nevertheless entitled to their wages for the full voyage, or the time which it would probably require to complete it. Ib. 4. THE RULE “FREIGHT IS THE MOTHER OF WAGES," does not apply to a fishing or sealing voyage, and appears to be abolished altogether by section 4525 of the Revised Statutes. 1b. 5. MORTGAGE. WHERE THE LOCAL LAW GIVES A LIEN UPON THE VESSEL FOR SUPPLIES and repairs, and after a mortgage is given on the vessel repairs are bestowed on such vessel, that a title acquired under such mortgage is subject to the lien for such repairs. Brown v. Graves,1 D. C. U. S. N. D. N. Y. BILLS AND NOTES. See INJUNCTION; MECHANIC'S LIEN. CONSTITUTIONAL LAW. 1. RECOGNITION OF VALIDITY OF PUBLIC ACT. EFFECT OF. JOURNAL OF LEGISLATURE, ETC. Where an act of the legislature was passsed and published more than eleven years, and since that time all of the departments of the state government- the legislative, the executive, and the judicial, have held it to be valid, and its validity has never before been questioned upon the grounds urged against it, and the only objection ever before urged against its validity was that the legislature had no constitutional power to pass such acts, which objection was long ago overruled by the courts, and many rights had accrued under the act in the honest belief of its validity. Held, that unless a very clear showing of its invalidity could be made it would be the duty of the courts to hold the act valid. Where such an act was duly passed by both branches of the legislature more than eleven years before action, and the senate journal showed that the senate concurred in certain amendments made to the bill by the house, but did not show affirmatively whether the yeas and nays were taken on such concurrence, and the yeas and nays on such concurrence are not entered on the journal, and the act has generally been considered valid, and many rights have accrued thereunder: Held, that said act would not be declared invalid merely because the yeas and nays were not entered on the senate journal as aforesaid. Board, &c. of Leavenworth v. Higgenbotham, S. C. Kans., Cent. L. J., November 17, 1876. 1 Of this case the editor of the Chicago Legal News writes as follows: "It is somewhat singular that Judge WALLACE should not have referred to the opinion of Judge DRUMMOND, in Miller et al. v. The Proceeds of the Kate Hinchman, 8 Chicago Legal News, 388, in delivering his judgment in this case, as his attention had been called to it, and a conclusion directly the opposite was arrived at by Judge DRUMMOND Messrs. Ray & Mitchell, in arguing the case of The Kate Hinchman, claimed, with all the ingenuity they possessed, that the law was as now stated by Judge WALLACE, but they failed to convince the learned Judge. Judge DRUMMOND fortifies his opinion by several authorities.". EDITOR. Vol. IV.] DIGEST OF CASES. [No. 1. 2. EVIDENCES OF PASSAGE OF ACT, ETC. The signatures of the presiding officers of the two houses of the legislature to an enrolled bill are only portions of the many evidences of the due passage and validity of such bill. And courts must decide as to the passage and validity of a bill upon the whole of the legal evidence applicable in such cases. Therefore, where the enrolled bill of a certain act, and the legislative journals taken together, clearly show that the bill was duly passed by the legislature and approved by the governor, and where all the extrinsic evidence having any application to the case also shows the same thing: Held, that the bill should be held to be valid, although it may not have the signature of the presiding officer of the senate affixed to it. Ib. CONTEMPT. See RECEIVER. CONTRACT. IF IT IS THE DESIGN OF A CONTRACT TO ACCOMPLISH A SINGLE OBJECT, as building and repairing certain dams to improve navigation, and it is stipulated that a certain percentage of the price be retained until the whole is completed, it is an entire contract. Quigley v. De Haas,1 S. C. Pa., Leg. Int., December 8, 1876. CORPORATION. 1 GORDON, J., writes as follows: "The rule as adopted in the case of Lucesco Oil Co. v. Brewer, 16 Sm. 31, from Parson on Contracts, that if the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such contract will generally be held to be severable, is certainly applicable to contracts such as that which was under consideration in that case. But it is not even intimated that the circumstances therein stated would over-ride the clear intention of the parties, if such intention were apparent from the whole face of the agreement. Indeed, it is expressly said by the author, by whom the above rule is stated, that no precise rule can be given by which this question, in a given case may be settled, but, like most other questions of construction, it must depend upon the intention of the parties as gathered from the whole subject matter of the contract. 2 Par. on Cont. 517. In any view, this contract must be taken as entire. It was designed to accomplish a single object, to wit, the navigability of the stream therein mentioned. It was one job, though made up of several items; there was one price, though, for convenience, because the work was to be paid for as it progressed, it was apportioned to the several items. Even this apportionment must be taken as inseparable from the whole work, for it is more than probable that, for instance, the price of fourteen hundred dollars for building each dam, was a value put upon such dams as part of the whole job, rather than as separate isolated items; for the dams would be worth little or nothing with the remainder o. the creek unimproved. The parties themselves have, however, put this matter beyond doubt by the following clause in their agreement, to wit: Out of all the above estimated costs of each of the respective divisions of work, Quigley and Bailey shall be privileged to retain fifteen per centum until the whole is completed, in a satisfactory manner, according to contract.' That this provision was designed to secure the proper completion of the whole work is not open to doubt, and if the plaintiff is permitted to recover full price for a partial performance, it is certain that this covenant is, in effect, abrogated. We conclude, therefore, that the court below was wrong in holding the subject matter of this contract to be severable."— ÉDITOR. Vol. IV.] DIGEST OF CASES. [No. 1. BURGLARY. CRIMINAL LAW. The unlatching or breaking of a door, in an attempt to escape, does not constitute burglary under a statute making it burglary to break or enter. Rolland v. The Commonwealth, S. C. Pa., Leg. Int., November 10, 1876. DEED. 1. THE ACKNOWLEDGMENT OF A DEED BY A MARRIED WOMAN substantially complies with the act if it sets forth an examination apart from the husband, her full knowledge of its contents, and her execution of it without fear or compulsion of her husband. The latter is equivalent to a declaration of free will. Miller v. Wentworth, S. C. Pa., Leg. Int., December 8, 1876. 2. WHEN AN, ORIGINAL DEED HAD BEEN DESTROYED before stamping, and no copy preserved, a draft made, as nearly as possible, from memoranda, the survey, and memory, was presented to the judge, permitted to be stamped and certified under the Act of Congress of July 23d, 1874. Held, sufficient to restore the instrument as evidence. Ib. DOWER. 1. THE WIFE MAY MAINTAIN AN ACTION TO PRESERVE HER RIGHT OF DOWER WHILE HER HUSBAND IS LIVING; as: where by fraud the husband is allowing his real estate to be sold under execution, in order to defeat the dower of his wife, she may have the sale set aside so far as to protect her dower.1 Buzick v. Buzick, S. C. Iowa, West. Jur., November, 1876: Cent. L. J., December 8, 1876. 2. JOINTURE OR MARRIAGE SETTLEMENT IN LIEU OF DOWER. REQUISITES OF. Under section two of the Dower Act of Ohio (1 S. & C. 516), an estate conveyed as jointure, to be a good legal or statutory bar to dower, must be such an estate, as to certainty and kind, that the wife, on the death of her husband, may take possession of, and hold in severalty, and not in common with others. If the estate so conveyed be such as that at common law dower could be assigned by metes and bounds, then in such case the jointure, to be a legal bar to dower, should be an estate in severalty, so that the widow may enter and hold in severalty, without being compelled to resort to an action to have her jointure assigned to her by metes and bounds. Grogan v. Garrison, S. C. Ohio, Am. Law Reg., November, 1876. 3. AN ANTENUPTIAL CONTRACT WHICH conveys an undivided one third part, or any other interest in common with others, in lieu of dower, is not a good statutory bar. Whether such an estate will constitute a good equitable jointure depends on the facts and circumstances of the case, and when such contract is pleaded by way of equitable defence to an action for dower, the facts. upon which it depends, and not the pleader's conclusions from the facts, must be stated. Ib. 1 Under the statutes of Iowa the wife is endowed of one third in fee of all real estate owned by the husband during coverture and which has not been alienated under judicial sale. EDITOR. |