INDEX.

ADMIRALTY.

1. The captain of a vessel, as such, has no authority to pledge the credit of the owner
for necessary repairs made at the home port, where the owner resides and can be
consulted, and can personally interfere. Pentz v. Clarke, 4.

2. And the fact that the captain is also a part owner of the vessel, gives him no author-
ity to pledge the credit of his co-owner for such repairs. In order to bind the owner
of a vessel for necessary repairs done at the home port, where he resides and can per-
sonally interfere, the master must have special authority for that purpose; or the
owner must have held out the master as having such authority; or he must have
ratified the contract after it was made. Ib.

3. Where a ship is necessarily delayed for repairs, the repairs having been rendered
necessary by a peril of the sea and being required to enable the ship to proceed upon
her voyage, although they are made in a port on the route of her regular voyage, the
wages and provisions of her crew during the period of detention may be allowed as
general average. And the sum paid for services and expenses of a special agent sent
to assist the ship in the port of distress may, also, be allowed. Hobson v. Lord, 257.

ASSESSMENT.

An assessment that could not have been directly levied by the legislature of a state, can-
not be legalized by an enactment of such legislature. People v. Lynch, 127.

1. An attorney at law is an officer of the court, and may be removed from office for mis-
conduct, ascertained and determined by the court after an opportunity to be heard
has been afforded. Sanborn v. Kimball, 13.

2. The statute makes a good moral character" a prerequisite of admission to the
bar; and when an attorney at law has forfeited his claim to such character by such
misconduct, professional or non-professional, in or out of court, as renders him un-
worthy to associate with gentlemen, and unfit and unsafe to be intrusted with the
powers, duties, and responsibilities of the legal profession, the court may deprive
him of the power and opportunity to do further injury under the color of his profes-
sion by removing him from the bar. Ib.

3. The evidence in this case conclusively establishes the allegation in the motion that
"the respondent does not possess a good moral character,” in that it shows that he
has committed a fraud upon the court, violated his professional oath and duty, con-
ducted dishonestly in his private dealings, and disregarded the proprieties and civil-
ities due to other members of the profession. Ib.

4. By admitting the respondent to the bar the court held him out to the public as worthy
of confidence and patronage in the line of his profession. In view of the power of
removal vested in the court, to allow the respondent to continue to exercise his pro-
fession after he has been thus proved to be unworthy of his office, would be indirectly
to involve the court in the responsibility of his acts. And further, after the disclos-
ures in this case, the court cannot forbear to pronounce the judgment of removal
from office against the respondent without abdicating the high trust which the law
confides to it in this behalf, and rendering that a nullity. Ib.

5. The respondent has been pardoned for the forgery of which he was convicted and for

which he was confined in the state prison; but the instrument forged was a deposition used in a cause before this court; and though the pardon purged him of the offence of which he was convicted, it did not affect the crime of the violation of his professional oath and duty, nor relieve him from the penalty of removal from the bar for this misconduct. Ib.

See JUDGMENT, WILL.

ATTORNEY AND CLIENT.

1. Where the parties to a fraudulent or illegal transaction are in pari delicto, the simple fact, that at the time of such transaction, the relation of client and attorney exists between them, will give the former no claim to the aid of a court of equity to have restored to him the property of which the latter has become possessed by their joint fraud. Such relation alone will not except the case from the general rule, in pari delicto potior est conditio defendentis. Roman v. Mali, 313.

2. An attorney is under no actual incapacity to deal with or purchase from his client. All that can be required is, that there has been no abuse of the confidence reposed; no imposition or undue influence practised, nor any unconscionable advantage taken by the attorney of the client. When a transaction between parties occupying such relation to each other is brought in question, the onus of the case is cast upon the attorney of showing that nothing has happened in the course of the dealing which might not have happened had no such connection subsisted, and that the transaction has been fair in all respects. If the court be satisfied that the party holding the relation of client performed the act or entered into the transaction voluntarily, deliberately, and advisedly, knowing its nature and effect, and that no concealment or undue means were used to obtain his consent to what was done, the transaction will be maintained. Ib.

BAILOR AND BAILEE.

1. Where a bailment is for the sole benefit of the bailor, the bailee is answerable only for gross neglect; when solely for the benefit of the bailee, he is responsible for slight neglect; when reciprocally beneficial to both, the bailee is responsible for ordinary neglect. First National Bank of Carlisle v. Graham, 501.

2. A bailee keeping the property of the bailor with the ordinary care with which he keeps his own, does not fulfil his duty if the contract requires strict diligence and extraordinary care. Ib.

3. Where the benefits are reciprocal, the bailee is liable for neglect of ordinary care, although he has been careless and reckless in the management of his own goods as well as those of the bailor. Ib.

4. That the bailee has dealt with his own goods and the bailor's in the same way is evidence in adjusting the standard of duty and deciding the question of performance, and as a test of the bailee's good faith. It would raise a presumption of adequate diligence. Ib.

5. The measure of the bailee's responsibility is to be determined in each case by a comparison with the conduct of classes of men, not of individuals. Ib.

6. The mere voluntary act of the cashier of a bank in receiving securities for safe keeping will not render the bank liable for their loss; but if the deposit be known to the directors and acquiesced in, the bank will be liable. Ib.

BANKS AND BANKING.

See BAILOR AND BAILEE, 6; BILLS AND NOTES, 3.

BANKRUPTCY.

1. The amendatory Bankruptcy Act of March 3, 1873, is not unconstitutional. In re Smith, 335.

2. The amendatory Bankruptcy Act of June 22, 1874, is to be regarded as amending and supplementing the Revised Statutes, notwithstanding the date of its passage and its reference to the Act of 1867. In re Oregon, &c. Co. 469.

3. The same proportion of creditors must, under existing laws, join in a petition in involuntary bankruptcy against a corporation as is required in case of a natural person. Ib.

4. The petition against a corporation must show that the corporation is a "moneyed, business, or commercial corporation." Ib.

5. The failure of the defendant to appear and defend an attachment against his prop

erty is no evidence of his having done any act to procure the attachment within the meaning of section 35 of the Bankrupt Act of 1867, or to procure or suffer his property to be taken under legal process within the meaning of section 39 of said act. Henkelman v. Smith, 283.

6. Section 14 of the bankrupt act refers and can only refer to attachments which are pending at the time the petition in bankruptcy is filed, and not to such as have been prosecuted to a judgment prior to the filing of such petition. Ib.

7. The attachment having been properly issued and prosecuted to judgment, that judgment is final, imports absolute verity, is conclusive with respect to the subject matter adjudicated, and cannot be reëxamined or impeached in a collateral proceeding. Ib. 8. Action was brought in a state court upon certain promissory notes. The defence was that defendant had been duly declared a bankrupt, that plaintiff had proved the claim sued on, and been paid a dividend thereon, and that the payment of such dividend had the effect to absolutely discharge the defendant from the whole of the claim sued on. Held, that the action was well founded, and could be maintained for the balance due in excess of the dividend. New Lamp Chimney Co. v. Ansonia Co. 110.

9. An attachment of the property of a debtor is ipso facto dissolved if proceedings in bankruptcy are commenced within four months thereafter, upon which the debtor is adjudicated a bankrupt. Rev. Sts. § 5044; § 14 of original Bankrupt Act. Brackem v. Johnston, 537.

10. A creditor who proceeds in a state court by a writ of attachment on which he seizes the property of his debtor and realizes his judgment obtained in such a suit by a sale of the property attached, is liable to the assignee in bankruptcy of the debtor appointed under proceedings commenced in the bankruptcy court within four months of the levy of the attachment, although the assignee did not appear or defend the attachment suit, or make any attempt to arrest the attachment proceedings. The case distinguished from Wilson v. City Bank, 17 Wall. 473, and Eyster v. Goff, 91 U. S. Rep. (1 Otto) 521. Ib.

See CONTRACT, 1.

BILLS AND NOTES.

1. The defendant made and indorsed in blank a note, on six months, payable to his own order, which within a week was cashed by the bank of which the plaintiff was president, under his direction without further indorsement. Hearing afterward that the maker alleged fraud in the origin of the paper, and deeming himself negligent in not requiring a second indorser, the plaintiff took the note (long after its maturity) paying his bank the amount of it: Held, that he was a bona fide holder for value and entitled to recover without regard to any fraud in the inception of the paper, or any failure of consideration between the original parties. Roberts v. Lane, 189.

2. The person who puts in suit a note shown to have been obtained from the maker by fraud, assumes the burden of establishing his own good faith. This he may do by showing that he, or any prior holder to whose rights he succeeds, has taken the note fairly for value before maturity in the due course of business, and without knowledge of the fraud, or notice of any circumstances of suspicion conneeted with the paper. It is immaterial what the plaintiff's knowledge may be, if any prior owner whose rights he has was a bonâ fide holder of the note as above explained. It does not affect the principles of law above stated, that the note was made to the maker's order and bore only his indorsement, so that it passed by delivery, and the title was apparently derived directly from him, if it is shown that in fact it was purchased by the plaintiff's predecessor in title, in good faith, and for value, of him to whom the maker first gave it. Ib.

3. It is no defence to a note made and indorsed only by one and the same person, that the plaintiff bought it of a bank which is prohibited by the R. S. c. 47, § 14, from discounting paper without having at least two names to it. This provision is for the security of the stockholders, and does not concern him who obtains the loan upon it. Ib.

4. A note in the ordinary form, payable to order at a definite time, for a specified sum in money, is negotiable, notwithstanding the addition of the words, "said promise made for a colt, this day taken; said colt holden for the payment of said amount." Collins v. Bradbury, 67.

5. A nonsuit will not be ordered for a slight verbal variance between the note in suit and the declaration, when the person and case can be rightly understood," and it is apparent that the declaration was intended to and does embrace the note in suit. Ib.

6. The defendant was induced to sign his name, as maker, to a negotiable promissory
note, by the false and fraudulent representations that it was a contract of an entirely
different character, whereby he would incur no pecuniary liability; but it appeared
further, that it was a negligent act on his part to sign the note without ascertaining
whether it was what the payee represented, or something else. Held, that the defend-
ant was precluded by his negligence from setting up the fraud against a bonâ fide
holder of the note who had purchased it for value before due. Citizens' National
Bank v. Smith, 248; Kellogg v. Curtis, 419.

See GUARANTY.

CONFEDERATE STATES.

See CONSTITUTIONAL LAW, 1.

CONSTITUTIONAL LAW.

1. A statute of North Carolina of March, 1866, enacting that in all civil actions "for
debts contracted during the late war, in which the nature of the obligation is not set
forth, nor the value of the property for which such debts were created is stated, it
shall be admissible for either party to show on the trial, by affidavit or otherwise, what
was the consideration of the contract; and that the jury in making up their verdict
shall take the same into consideration, and determine the value of said contract in
present currency, in the particular locality in which it is to be performed, and render
their verdict accordingly," in so far as the same authorizes the jury in such actions
upon the evidence thus before them to place their own estimate upon the value of the
contracts, instead of taking the value stipulated by the parties, impairs the obligation
of such contracts, and is, therefore, within the inhibition upon the state of the federal
Constitution. Accordingly, in an action upon a contract for wood sold in that state
during the war, at a price payable in Confederate currency, an instruction of the
court to the jury that the plaintiff was entitled to recover the value of the wood with-
out reference to the value of the currency stipulated was erroneous. W. & W. R. R.
Co. v. King, 1.

2. An act which has the effect of rendering valid formal judgments, entered by a court
without jurisdiction, is to be regarded as an exercise of judicial functions by the legis-
lature, and as a contravention of the provision that no person shall be deprived of
property without due process of law, and is, therefore, void. Pryor v. Downey, 68.
3. The Act of May 31, 1870 (16 Stats. at Large, 140), known as the "Enforcement
Act," is so general in its provisions that it cannot be regarded as appropriate legis-
lation" for the effectuation of the purposes of the fifteenth amendment to the Con-
stitution of the United States. It is to all intents and purposes inoperative. United
States v. Reese, 201.

66

4. The "Enforcement Act."- Construction of section six. Of the insufficiency of
indictments thereunder which do not charge a conspiracy to hinder or prevent the en-
joyment of a right granted or secured by the Constitution of the United States. — Of
the nature of state and United States citizenship, and the nature and powers of the
state and general governments. United States v. Cruikshank, 206.

5. The provision of the section 23, art. 4, of the Constitution of Nevada, that the enact-
ing clause of every law shall be as follows: "The People of the State of Nevada rep-
resented in Senate and Assembly do enact as follows," is mandatory. The omission
of the words "Senate and" from the enacting clause of an act of the legislature,
renders the act unconstitutional and void. State of Nevada v. Rogers, 339.

6. The fourteenth amendment of the federal Constitution provides that no state shall
deprive any person of liberty without due process of law. Held, that the ex parte
determination of two overseers of the poor is not such process. City of Portland v.
City of Bangor, 435.

7. The city of Portland sued the city of Bangor for supplies furnished the alleged pau-
per, in the workhouse of the plaintiff city, committed under a warrant of two overseers
of the poor. Held, that the commitment was illegal, that the plaintiffs could not re-
cover, and that the decisions in Nott's case, 11 Maine, 208, and in Portland v. Bangor,
42 Maine, 403, holding to the contrary, are inconsistent with the fourteenth amend-
ment of the federal Constitution. Ib.

8. The omission to provide for notice to parties in interest does not render a statute
invalid. State v. Doyle, 450.

9. The case of the City of New York v. Miln, 11 Peters, 103, decided no more than

that the requirement from the master of a vessel of a catalogue of his passengers landed in the city, rendered to the mayor on oath, with a correct description of their names, ages, occupations, places of birth, and of last legal settlement, was a police regulation within the power of the state to enact, and not inconsistent with the Constitution of the United States. Henderson v. Wickham, Mayor, 227.

10. The result of the Passenger Cases, 7 How. 283, was to hold that a tax demanded of the master or owner of the vessel for every such passenger was a regulation of commerce by the state, in conflict with the Constitution and laws of the United States, and, therefore, void.

Ib.

11. These cases criticised, and the weight due to them as authority considered. Ib. 12. In whatever language a statute may be framed, its purpose and its constitutional validity must be determined by its natural and reasonable effect. lb.

13. Hence, a statute which imposes a burdensome and almost impossible condition on the ship-master as a prerequisite to his landing his passengers with an alternative payment of a small sum of money for each one of them is, in fact, a tax on the ship-owner for the right to land such passengers, and in effect, on the passenger himself, since the ship-master makes him pay it in advance as part of his fare. Ib.

14. Such a statute of a state is a regulation of commerce, and when applied to passengers from foreign countries is a regulation of commerce with foreign nations. Ib. 15. It is no answer to the charge that such regulation of commerce by a state is forbidden by the Constitution to say that it falls within the police power of the states, for to whatever class of legislative powers it may belong, it is prohibited to the states if granted exclusively to Congress by that instrument. Ib.

16. Though it may be conceded that there is a class of legislation which may affect commerce, both with foreign nations and between the states, in regard to which the laws of the states may be valid in the absence of action under the authority of Congress on the same subjects, this can have no reference to matters which are, in their nature, national, or which admit of a uniform system or plan of regulation. Ib.

17. The statutes of New York and Louisiana, here under consideration, are intended to regulate commercial matters which are not only of national but of international concern, and which are also best regulated by one uniform rule, applicable alike to all the seaports of the United States. These statutes are, therefore, void, because legislation on the subjects which they cover is confided exclusively to Congress by the clause of the Constitution which gives to that body the "right to regulate commerce with foreign nations." Ib.

18. The constitutional objection to this tax on the passenger is not removed because the penalty for failure to pay does not accrue until twenty-four hours after he is landed. The penalty is incurred by the act of landing him without payment, and is, in fact, for the act of bringing him into the state. lb.

19. This court does not, in this case, undertake to decide whether or not a state may, in the absence of all legislation by Congress on the same subject, pass a statute strictly limited to defending itself against paupers, convicted criminals, and others of that class, but is of opinion that to Congress rightfully and appropriately belongs the power of legislating on the whole subject. Ib.

20. The statute of California which is the subject of consideration in this case does not require a bond for every passenger, or commutation in money, as the statutes of New York and Louisiana do, but only for certain enumerated classes, among which are "lewd and debauched women." But the features of the statute are such as to show very clearly that the purpose is to extort money from a large class of passengers, or to prevent their immigration to California altogether. Chy Lung v. Freeman, 407. 21. The statute also operates directly on the passenger, for, unless the master or owner of the vessel gives an onerous bond for the future protection of the state against the support of the passenger, or pays such sum as the commissioner of immigration chooses to exact, he is not permitted to land from the vessel. Ib.

22. The powers which the commissioner is authorized to exercise under this statute are such as to bring the United States into conflict with foreign nations, and which can only belong to the federal government. Ib.

23. If the right of the states to pass statutes to protect themselves in regard to the criminal, the pauper, and the diseased foreigner landing within their borders exists at all, it is limited to such laws as are absolutely necessary for that purpose; and this mere police regulation cannot extend so far as to prevent or obstruct other classes of persons from the right to hold personal and commercial intercourse with the people of the United States. Ib.

24. The statute of California in this respect extends far beyond the necessity in which