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was brought to recover a balance on a promissory note, and the defendant answered that he had paid usurious interest, and demanded judgment by way of recoupment against the plaintiff, and the plaintiff then dismissed his action, held, that the defendant's counter-claim was no longer available under the law, and a judgment rendered thereon in his favor, against the plaintiff, was erroneous. Iq recoupment, a defendant can only use his claim in diminution of the plaintiff's cause of action, and can not, as in set-off, recover the excess of his claim over that of the plaintiff. Opinion by HOWK, J.-Holcroft v. Mellott.

MORTGAGE-PURCHASER FOR VALUABLE COXsiDERATION-EQUITY OF WIFE.-One who takes a mort. gage to secure a pre-existing debt, the time of payment not being extended and no securities being surrendered, is not a purchaser for a valuable consideration, and such a mortgagee can not set up his mortgage as against parties having prior equities adverse to such mortgage. So far as the cases of Work v. Brayton, 5 Ind. 396, and Babcock v. Jordan, 24 Ind. 14, hold a different doctrine, they are overruled. In this case Richard Hill executed to Reid a note and mortgage for a precedent debt; Reid assigned the note and mortgage to Gray, who brought this action of foreclosure. The wite of Hill answered by way of counter-claim, that the mortgaged property was purchased by her husband with her money, and the deed taken in his name without her knowledge or consent, and that the equitable title was in her. The court held that Gray could not set up his mortgage against the prior equity of Mrs. Hill in the land. Opinion by WORDEN, J.Hill et al. v. Gray.

gage debtor and wife, the assignees in insolvency were made parties defendant, and pleaded in defense the fact of the assignments, their qualifications, the giving of the required notice to creditors, and that they were actively engaged in the execution of the trust. Held, that the facts alleged did not oust or affect the jurisdiction of the court. Opinion by BOYNTON. J.-Dyer 0. Garlough.

LIEN OF JUDGMENT RENDERED IN FEDERAL COURT -LIMITATION.–1. A judgment rendered in the Circuit Court of the United States has the same lien on the lands of the debtor within the district that is given to a judgment of the state court within the the limit of its territorial jurisdiction. Sellers v. Corwin, 5 Ohio, 398, approved. 2. The words “lands and tenements of the debtor," as used in section 421 of the code, include a vested remainder held by the debtor under a legal title. 3. Where a judgment creditor, within the life of his judgment lien, commences an action to enforce his judgment against the lands of the debtor and to marshal the liens thereon, and, after decree, tinding his lien and directing a sale of the property, subject, however, to a further order adjusting priorities and for distribution, is properly made a defendant in another action in which a sale is made, such judgment creditor does not lose his right to share in the distribution of the proceeds, by reason of the fact that, during the pendency of the last action, five years elapsed from the date of the last execution issued on the original judg. ment. Motion overruled. Opinion by MCILVAINE, J. -Lavrence v. Belger,

ABSTRACT OF DECISIONS OF SUPREME

COURT OF OHIO.
December Term, 1877Filed December 18, 1877.
HON. JOHN WELCH, Chief Justice.

WM. WHITE,
WM. J. GILMORE,

Associate Justices.
GEO. W. MCILVAINE,

W. W. BOYNTON, NO APPEAL LIES FROM THE DECISON of the probate court setting aside or refusing to confirm a sale made by an assignee for the benefit of creditors. Opinion by WHITE, J.-Miller et al. v. Assignees of the J. F. Sieberling Co.

SUIT ON PROMISSORY NOTE-PLEADING.-A person, other than a payee, who brings an action against the maker, on a note payable to the order of the payee, and frames his petition under section 122 of the code, without giving a copy of an indorsement by the payee, is not entitled, under such petition, to the protection given to a bona fide indorsee for value and before maturity, although the note when offered in evidence appears with the name of the payee indorsed thereon. Judgment of the district court and the court of the common pleas reversed, and cause remanded to the common pleas for a new trial. Opinion by MCILVAINE, J.T'isen v. Hanford.

ASSIGNMENT FOR BENEFIT OF CREDITORS-DOWER -1. The power given to an assignee in insolvency, by the 5th section of the act S. & S. 359, regulating the mode of administering assignments in trust for beneefit of creditors, to sell and convey the real estate assigned, does not enable such assignee to extinguish by sale the inchoate right of dower of the wife of the assignor, in the assigned property. 2. A mortgagor of real estate, whose wife joined in the mortgage, releasing her dower interest in the property mortgaged, made, before the maturity of the mortgaged debt, an assignment, under the statute, of all his property in trust for the benefit of his creditors. In an action brought to foreclose the mortgage against the mort

ABSTRACT OF DECISIONS OF SUPREME JUDICIAL COURT OF MASSACHUSETTS.

March Term, 1877.
HON. HORACE GRAY, Chief Justice.

JAMES D. COLT,
SETH AMES,
MARCUS MORTON,

Associate Justices.
WILLIAM C. ENDÍCOTT,
OTIS P. LORD,

AUGUSTUS L. SOULE, MOTION TO DISMISS.-A motion to dismiss, whicb relates to matter of form and not of substance, can not be made for the first time in the superior court on appeal from the district court. Stat. 1864, Ch. 250, $ 2; Green v. Com., 111 Mass. 417; Com. v. Legassy, 113 Mass. 10. PER CURIAM.Com v. Lewis.

EXEMPTION FROM ARREST OF WITNESS BEFORE LEGISLATIVE COMMITTEE.-A resident of another state, while in attendance as a witness in his own behalf, before a joint committee of the legislature, having petitioned for the allowance of a claim made by him against the commonwealth, and intending to return home without unnecessary delay, is exempt from arrest or civil process. Opinion by GRAY, C. J.-Thompson's. Case.

CRIMINAL LAW-STATEMENTS MADE IN PRESENCE OF ACCUSED.-A and B were jointly indicted for the larcency of a watch. The defendants, after their arrest, were searched in the station. The watch was found upon A. The officer then, in the presence and hearing of B, asked A how he came by the watch; he replied, B gave it to him. B said nothing. Held, that B, while held in custody, had a right to keep silence as to the crime with which he was charged, and the circumstances connected with it, and was not called upon to reply to or contradict any statement made in his hearing. No inference against him was warranted by his failure to deny the truth of what A said to the officer. Com. v. Kenny, 12 Met. 239; Com. v. Walker, 13 Allen, 570. Opinion by SOULE, J.-Com. v. McDermott.

MOTION IN ARREST OF JUDGMENT-LEGALITY OF

66

COURT.-A motion in arrest of judgment, overruled in upland and flats, either separately or together. The the court below, to which exception was taken, sets strict legal meaning of the word “shore,” is doubtless forth," that it does not appear from the record that the land between ordinary high water-mark and low the complaint was heard and adjudged at a criminal water-mark; and such is its common meaning as a term of the police court of Haverhill, or at a term of definition of a boundary, when used by itself and unthe court held for the transaction of criminal busi- controlled by other expressions in the deed or instru. ness." Held, that under the Stat. 1869, Ch. 385, re- ment of conveyance. But it may be shown, by a conquiring that police courts shall be held for the trans- sideration of the whole instrument, and of monuments action of criminal business daily, and, Stat. 1877, Ch. referred to therein, to have been used untechnically and 74, providing that the police court of Haverhill shall without legal accuracy as importing low water-mark. be held for civil business on the first and third Wed- Anc. Chart. 148; Storer v. Freeman, 6 Mags. 435; Jacknesdays of each month, etc., it appearing by the record son v. B. & W. R. R. Co., 1 Cush. 575, 579; Saltoustall v that this case was tried on Wednesday, May 9, 1877, Long Wharf, 7 Cush. 195; Doane v. Wilcutt, 5 Gray, before said police court, a court required by law to be 328; Wiles v. Patch, 13 Gray, 254. , Opinion by GRAY, held on tbat day for criminal business, it is to be pre- C. J.-Hathaway v. Wilson. sumed that such a court was held in obedience to the requirement; and as this case was within the juris.. ABSTRACT OF DECISIONS OF SUPREME diction of such a court, and as the record recited that

COURT OF KANSAS. it was heard and adjudged in the police court of Haverhill on that day, it is to be presumed that it was then

July Term, 1877. engaged in the transaction of criminal business. Opin

HON. ALBERT H. HORTON, Chief Justice. ion by ENDICOTT, J.-Com. v. Brown.

D. M. VALENTINE, Associate Justices. WARRANT-RESISTING OFFICER.—Where a building

D. J. BREWER, was occupied in separate tenements by A. and B., and a CONSTITUTIONAL LAW-TAXATION.-1. Sections 3 and search warrant authorized an officer to enter and search 4 of "An act to regulate taxation on the change of the house occupied by B., the officer is not justified in boundry lines," approved March 3, 1873 (Laws of 1873, entering the tenement occupied by A., and the latter p. 267), are constitutional and valid. Sedgwick county has a right to resist his entry, using reasonable force; v. Bunker, 16 Kansas, 498. 2. That clause of section and the fact that the officer believed that the portion of 1, article 11 of the constitution, which provides that A's tenement which he attempted to enter was in the “the legislature shall provide for a uniform and equal occupation of B., can not affect the rights of A. Com. rate of assessment and taxation," discussed and conv. Leddy, 105 Mass. 381, distinguished. Opinion by strued. Opinion by VALENTINE, J. Reversed. All MORTON, J.-Com. v. Newton.

the justices concurring.--Commissioners of Ottawa LARCENY-EVIDENCE.-The defendant was indicted County v. Nelson. for larceny of a horse and two wagons. It appeared ACTIONS AGAINST RECEIVERS — TAXES. — 1. S., a evidence that he took and sold them without authority county treasurer, filed his petition in the district court from the owner, absconded and kept the money ob

against a railroad company and B., the receiver of said tained from the sale. The defense was that he was

company appointed by the circuit court of the United authorized by the owner to sell to any purchaser he States, to recover the taxes levied upon said company could find, and on this point there was conflicting evi- for the year 1874. The petition alleged the appointment dence. It he was authorized to sell, or honestly be- of the receiver and his possession and control of the lieved he had the right to take and sell the property, road. Without, so far as the record discloses, the issue his subsequent flight and wrongful appropriation of or service of any process, the company and receiver the money, would not justify the jury in finding him

filed a joint answer in which they admit that a portion guilty of larceny. But if he was not authorized, and of the taxes are properly chargeable against the comthe taking and selling was without right or color of

pany, and consent that judgment may be rendered rigbt, then evidence of his subsequent conduct was against them in this action for that amount, and also competent to show the intent with which he took

allege the appointment of the receiver by the United and sold the property. Opinion by ENDICOTT, J.- States circuit court, that he is not amenable to the proCom. v. Hurd.

cess of the district court, and pray that as to him the AGENCY-INSTRUCTIONS_RATIFICATION.-The de. suit may be dismissed. The district court decided that fendant sold for the plaintiff, under certain instruc- it had jurisdiction, and rendered judgment against the tions, ten bonds of the U. P. R. R., and invested the receiver. Held, no error. 2. While it may be conproceeds in unregistered bonds of the I. C. R. R. The ceded that a court appointing a receiver may draw to instructions contained in plaintiff's letters, expressed itself all controversies to which the receiver is a party, a decided wish to have his money put into registered or which affect the property under his control, yet it bonds, and, after considering the subject at some does so only by direct action upon parties by way of inlength, and giving no definite instructions, he con- junction or proceedings as for contempt, and the apcluded by saying: “I shall feel under many obliga- pointment in no manner affects the ordinary jurisdictions if you will kindly make such sale and purchases tion of other tribunals. 3. An allegation, therefore, in of bonds as your good sense dictates." Held, that the an answer that the defendant is a receiver duly apdefendant was not limited to an investment of regis- pointed by another court raises do question as to the tered bonds, but that if he used his best judgment, act- jurisdiction of the court, in which the answer is filed. ing fairly, prudently and in good faith, and made as 4. Under the general tax law the valuation of real safe an investment as he reasonably could, he would not estate is fixed in the first place by the assessor and not be liable. Held, further, that it was for the jury to by the owner, and may thereafter be changed by the say whether the plaintiff, having learned the facts, by board of equalization at a regular meeting of which failing to object for two years or more, had ratified the legal and public notice is given, and, by the law of 1874, sale and purchase. Opinion by ENDICOTT, J.-Malth- the assessment and valuation of railroad property was €108 0. Fuller.

to be the same as that of other property. Opinion by TITLE TO LAND ABUTTING ON TIDE-WATER- BREWER, J. Affirmed. All the justices concurring "SHORE."-By the law of Massachusetts, the proprie

St. Joe & Denver City R. R. Co.v. Smith. tors of lands abutting on tide-water have a title in the IMMATERIAL ERRORS - INSTRUCTIONS — FELLOWshore or flats to low water-mark, where the tide does SERVANTS–EVIDENCE.-1. Where the court below Dot ebb more than one hundred rods, and may cover commits errors, but, under the facts of the case, the

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errors are immaterial, the judgment will not be re- of all description. Personally to the children and my versed therefor. 2. Where the court below commits

beloved wife I give all that remains." This instrument errors, as in charging the jury, but the errors are not

will satisfy the family and save the trouble of proving saved by any exceptions, the judgment will not be re- the old man insane. versed therefor. 3. The court below refused to give the

Hon. RICHMOND M. PEARSON, Chief Justice of the following instructions to the jury, to wit: “30. In

Supreme Court of North Carolina, while on his way weighing the testimony offered on behalf of the par.

from his home in Yadkin County, to attend at the sitties, the jury will consider that the plaintiff is deeply interested in the result of the suit, and will view his

ting of the supreme court, was stricken with paralysis. testimony with proportionate suspicion. 34. That

He was conveyed to Winston, wbere he died on the parties to suits, and their immediate relatives, are by

night of the 5th inst., in the seventy-third year of his the law beld to be more or less biased against the ad

age. Mr. Pearson was elected a judge of the superior verse party, and, in this case, the credibility of the

court of that state in 1836, and in 1848 was elected a plaintiff, his father, brother and sister, are directly in

judge of the supreme court. He served as associate issue with the plaintiff, as interested, and the other as

justice for ten years, at the end of which period he was biased witnesses against the defendant.” There was

elected chief justice, a post which he continued to fill no ground upon which to base these instructions, ex

with increasing reputation to the day of his death. He cept the mere fact of interest of the plaintiff, who was

leaves several children. One of them, Mr. Richmond a witness, and the mere fact of relationship to him of Pearson, is a practising lawyer of this city. some of the other witnesses. Held, that the supreme On Christmas day, at his residence, in St. Louis, court can not say that the court below erred in refusing died, kichard Soule, aged sixty-five. Mr. Soule, at to give these instructions; the supreme court can not the time of bls death, was preparing for the printer say that, as a matter of law, the evidence of a party must the completed manuscript of a “Reference Manual be viewed with "suspicion,” nor can the supreme court for Lawyers,” a volume of condensed legal bibliograsay that, as a matter of law, relatives must be “held

phy, which will be of great service to the American to be more or less biased against the adverse party.” bar. He was already well known to scholars by his That while it is the duty of the trial-court, if asked to “ Dictionary of English Synonymes ” and “ Manual of do so, to instruct the jury that they may take into con- English Pronunciation and Spelling," and by his lasideration the interest or relationship of any witness

bors upon Worcester's quarto dictionary, of which he in weighing his testimony, yet the court may very

was editor, under the supervision of Dr. Worcester, properly leave it to the jury to say whether such wit.

who was, at the time of its publication, too old to do acness is biased or prejudiced or not, and whether his

tive work. Mr. Soule was born in Duxbury, Mass., in testimony must be viewed with suspicion or not. 4.

1812, and was graduated at Harvard College in 1832. Where the plaintiff was injured by the fall of a derrick

While resident in Boston, he filled several public while in the employ of a railroad company as a laborer in building a culvert, and it was shown on the trial

offices. A year or two ago he moved to St. Louis,

where he has since resided with a son. He was perthat 0. superintended the work in building said culvert for said railroad company, that he hired the plain

sonally known to many of our readers, and to most of tiff and all the other laborers on the work, and had the

them was well known through his works. power to hire and discharge such laborers whenever

A WASHINGTON dispatch of the 6th inst., says: The he thought proper to do so, and although the materials United States Supreme Court will resume its session and machinery for the work were furnished to 0. by

to-morrow, pursuant to holiday adjournment. The other and superior agents of the railroad company, yet Credit Mobilier case will be argued before the full that it was the duty of 0. to inspect such machinery,

bench at some early date. The court, in view of the to see that it continued in good order, and to report to

great importance of the Charleston city-tax cases, and his superiors so that they might furnish him other ma

of the fact that the bench was not full when they were chinery if it became defective, and while he was using

argued about a month ago, has ordered them to be resaid derrick it became defective and he knew it, but

argued early next month. The question brought benevertheless continued the work and continued to use fore the court by these cases is, whether a city or other it, and in consequence of such defect it fell and injured

municipal corporation under a state law can impose a the plaintiff while he was at work for the company,

tax upon its own obligations in the hands of non-resi. and under the orders of (., held, that the plaintiff

dents. The city of Charleston levied two per cent. and 0. were not mere fellow-servants of the railroad upon its six per cent. stock, and directed its treasurer company, but that 0., with reference to the plaintiff,

to withhold the amount of tax from interest due. was a superior servant or agent and the representa

Messrs. Murray and Jenkins, one a resident of Gertive of the railroad company, and that the company is

many, and the other of Maryland, brought suit in state responsible to the plaintiff for his said injuries caused courts to recover amounts thus withheld from them, by the negligence of 0. 5. The court below did not and a majority of the South Carolina Supreme Court err in admitting evidence as to what 0. said, or what

sustained the validity of the city's action. This deciwas said to him prior to said accident concerning the sion was appealed to the supreme court on the ground insufficiency of said derrick; such evidence was proper

tbat the law imposing such taxation was an act imfor the purpose of showing that (). knew that the der- pairing the obligation of a contract, and therefore a rick was unsafe. Opinion by VALENTINE, J. Al

violation of the federal constitution. The cases attract firmed. All the justices concurring.-kan. Pacific R. great attention in financial and business circles, as it R. Co. v. Little.

is perceived that the acknowledgment by the supreme

court of the power thus claimed, to treat municipal NOTES.

debts due to non-residents as property liable to local

taxation, may lead in many instances to their being IF I am asked a question of common law, I should be taxed out of existence; or, in other words, to repudiaashamed it I could not immediately answer it; but it tion under the form of taxation. In a similar case, I am asked a question of statute law, I should be namely, that of the Cleveland and Ashtabula Railroad ashamed to answer it without referring to the statute Co. v. The State of Pennsylvania, five of nine members book.- Coke.

of the supreme court held that the state could not tax A NEW YORK paper says the will of the rich man of non-resident holders of railroad bonds, but the result the future will read, “ To the respective attorneys of of the pending cases is considered extremely doubtmy children, I give my entire estate and worldly goods ful

The Central Law Journal. oner indicted for a capital crime must be pres

ent, it is well settled, at the arraignment: Ja

cobs v. Com., 5 S. & R. 315; Hall v. The SAINT LOUIS, JANUARY 25, 1878.

State, 40 Ala. 698. And when the judge

charges the jury: Wade v. The State, 12 CURRENT TOPICS.

Ga. 25 ; State v. Blackwelder, 1 Phillips (N.

C.), 38; Wilt v. The State, 5 Coldw. 11; A BILL, introduced by Mr. Frye, of Maine,

The People v. Kohler, 5 Cal. 72; Jackson making all persons charged with crimes and

v. Com. 19 Gratt. 656. And when the veroffenses competent witnesses in their own be

dict is returned: King v. Ladsingham, T. half, in the courts of the United States, has

Raym. 393; Dunn v. Com. 6 Barr, 384; been passed by the House of Representatives.

Rose v. The State, 20 Ohio, 31; Sargent It is in the following words: “In the trial of all

v. The State, 11 Id. 472. And, also, when indictments, informations, complaints and other proceedings against persons charged Holt, 399; 1 Salk, 400; People v. Win

the sentence is pronounced: Rex v. Duke, with commission of crimes, offenses and mis

chell, 7 Cow. 521; Jacobs v. Commonwealth. demeanors in the United States Courts, Terri

But less strictness is required in cases not captorial Courts, Courts Martial and Courts of In

ital: Holmes v. Com., 25 Penn. St. 221; State quiry, in any state or territory, including the

v. Craton, 6 Ired. 164; Stephens v. The PeoDistrict of Columbia, the person so charged

ple, 19 N. Y. 549; Grimm v. The People, 14 shall, at his own request, but not otherwise, be a

Mich. 300; State v. Steeffle, 13 Ia. 603. The competent witness, and his failure to make such request shall not create any presumption against rendition of a verdict in the absence of a pris

oner works only a mis-trial, and the verdict him.”—The Queen's speech, delivered at the

should be set aside and the defendant tried opening of the English Parliament, announces

again: People v. Perkins, 1 Wend. 91 ; State that the government intends to introduce dur

v. Hughes, 2 Alabama, 102; Younger v. State, ing the session a bill “ to simplify and express

2 W. Va. 579. And if present when the verin one act the whole law and procedure relat

dict is returned, but absent when sentence is ing to indictable offenses.” This will be a considerable step towards the complete codifica

pronounced, he is not entitled to a new trial, tion of the criminal law. —A bill is before

but only to a new sentence. If the former

judgment is reversed on error for the prisonthe Ohio legislature giving a first lien upon the

er's absence, he is simply remanded for senproperty of the corporation for supplies, materials and labor furnished to railroads. The

tence according to law: Cole v. The State, 5

Eng. 318; Kelly v. The State, 3 Sm. & Mar. Canadian government will soon pass an extra

518. Neither the prisoner nor his counsel can mural act, ļ, e., a statute providing for the employment of peons, convicted of offenses

waive, it is said, this right to be present: Noagainst municipal purpose.

1 ordinances, upon

maque v. People, Breese, 109; Prine v. Com., the streets and re, Single New

6 Harris, 103. But in misdemeanors less strictdules and towns..

ness is required, and the trial may, by leave of A PRISONER incepared to

or a felony has no right court, often proceed and the verdict be rento be personally present at the hearing of a dered, and sentence of a fine be pronounced, motion for a new trial, and his absence will in the defendant's absence. See United States not invalidate a sentence subsequently passed v. Mayo, 1 Curtis C. C. 433; Sou v. The upon him when le is present. This is held by People, 12 Wend. 344; Canada v. Com., 9 the Supreme Julicial Court of Massachusetts, Dana, 304; Warren v. The State, 19 Ark. 214; in Com. v. Castllo, reported 16 Am. L. R. 735, Holliday v. The People, 4 Gil. 111. with a learnediote by Mr. Bennett. See Rex v. Gibson, 2 Sra. 968; s. C., Cunningham, 29; The Judges of the Superior Courts of Phila2 Barnard, 42, 418. See, also, 1 Chit. Crim. delphia have presented a memorial to the govLaw, 659, 63; The Queen v. Caudwell, 17

ernor, asking to be relieved from the duty now Q. B. 503 ;State v. Rippon, 2 Bay, 99; Jew- imposed upon them by law, of making appointell v. Com 22 Penn. St. 94, 101 ; Donnelly v. ments to various city offices.

There can State, 2 ntcher, 601; Com. v. Andrews, 97 be no doubt of the great impropriety of the Mass. 54; Anon., 31 Maine, 592. A pris- | legislature imposing such duties upon the judi

Vol. 6.-No. 4.

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ciary. The executive and judicial branches of judicial in either case, in the sense in which the government should be kept separate at any, judicial power is granted by the Constitution price; and if the legislature does not suffi- to the courts of the United States.” United ciently comprehend the danger of such legis-, States v. Ferveria, 13 How. 40. See opinion

of White, J., 22 Pitts. L. J., 129, refusing to performance of extra-judicial duties by de- appoint assessors, as required by a state act. claring such statutes unconstitutional. This | The Supreme Court of Massachusetts, in has been done heretofore in several cases. In the Case of the Supervisors of Election, 114 1792 Congress passed an act authorizing and Mass.,, 247, declared that an act requiring directing the Circuit Courts of the United them to appoint overseers, was unconstituStates to receive and examine the applications tional, as that was not a judicial duty, and, in of soldiers of the Revolution to be placed on Minnesota, the supreme court of that state the pension list, and certify them to the Secre- held that an act, empowering either house of tary of War, but several judges refused to act. the legislature to obtain the opinion of the The Circuit Judges of New York, consisting supreme court, was unconstitutional. In Conof Jay, Chief Justice, and Cushing, Justice, necticut the same course has been followed. held that the act was unconstitutional. “By See Reply of the Judges, 33 Con. 586 ; contra, the Constitution of the United States," it was People v. Provines, 34 Cal. 520; People v said, “the government thereof is divided into Bush, 40 id. 344. three distinct and independent branches, and it is the duty of each to abstain from, and to SEVERAL interesting cases upon covenants oppose encroachments on either. Neither affecting land have been recently decided in the legislature nor the executive, branches the English courts. In German v. Chapman, 26 can constitutionally assign to the judici-W. R. 158, a deed contained a covenant not to ary any duties but such as are properly use any building erected on the land “otherjudicial, and to be performed 'in a judicial wise than as and for a private residence only, manner.” Hayburn's. case, 2 Dallas, 409. and not for any purpose of trade." The court The Supreme Court of New York also held that of appeal granted an injunction restraining the the act was unconstitutional, because it im- erection of a building to be used as a school posed duties upon the court which were not of or home for orphan daughters of missionaries, a judicial character, or to be performed in a holding that the words not for any purpose judicial manner. And it was further held, of trade,"' were words of addition, and not of that, because the act imposed the duties upon limitation. Several previous decisons were the court, the judges could not act as commis- cited. Kemp v. S Sim. N. S. 517, sioners, and their acts as such were unauthor- where the covenant

carry on any ized and void. See Chief Justice Taney's trade, business, Os

hateter, and it note to U. S. v. Ferveria, 13 Howard, 52 was held that us case for a girls' similar question came before the Supreme school was a breach Keeling, 1 M. Court of the United States in 1851. By a & S. 95, the words

trade or busispecial act of Congress, the judge of the Dis- ness whatsoever,

school was detrict Court of the Northern District of Florida cided to be within

ase & house was authorized to receive and adjudicate the as a private lunatie as s not considered claim of a Spanish citizen against the United to be a breach of the covenant in Doe v. Bird, States, arising under the treaty of 1819. Hay- | 2 A. & E. 161, because there the words burn's case was referred to, and the opinions "trade or business were xplained by an expressed by the judges of the circuit court enumeration of particular tredes, and by the approved. Chief Justice Taney, in de general words“ or any ofensive trade," livering the opinion of the court, refer- 1 showing that only trades conucted by buyring to the acts of Congress, said: “The ing and selling were meant. 'n Wickenden powers conferred by these acts of Congress v. Webster, 4 W. R. 562, 6 E.'B. 387, the upon the judge, as well as the secretary, lessee was not to carry on any pblic trade or are, it is true, judicial in their nature. business whatsoever, and the hote was to be For judgment and discretion must be exer- used as a private clwelling-house cly. There cised by both of them.

But it is not it was held that using the houses a school

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