UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

ARREST-IMPRISONED DEBTOR MUST BE ACTUALLY IMPRISONED THREE MONTHS UNDER NEW YORK CODE, § 2202.-The defendant, an imprisoned debtor, petitioned for a discharge. The plaintiff opposed on the ground that the application was premature, the defendant not having been imprisoned on the execution issued from this court for a period of three months, as is required by section 2202 of New York Code of Civil Procedure. Held, that such objection was well taken. The statute in such cases must be strictly followed to give the court jurisdiction, and a discharge granted before a strict compliance with the statute in this respect would render the marshal liable in an action for an escape. In Dusart v. Delacroix, 1 Abb. Pr. (N. S.) 409, note, the precise question was decided, the court holding that the statute contemplated an actual imprisonment, under the execution, for a period of three months. See also In re Rosenberg, 10 Abb. Pr. (N. S.) 450. U. S. Cir. Ct., S. D., New York, Feb., 1883. Moran v. Secord. Opinion by Coxe, J.

CONFLICT OF LAW-JUDGMENT IN FEDERAL COURT CANNOT BE GARNISHED IN STATE COURT.-A debtor by judgment in a Federal court cannot be subjected to garnishment at the suit of a creditor who proceeds against him in a State court. Whatever the rule may be with respect to the garnishment of a judgment debtor in the same court in which the judgment was rendered, it would lead to great inconvenience and to serious conflict of jurisdiction to hold that a judgment in one court may be attached by garnishment in another, especially where the two courts are of different jurisdiction, and the decided weight of authority sustains this view. Drake, Attachm., § 625; Young v. Young, 2 Hill (S. C.), 426; Burrill v. Letson, 2 Speers, 378; Wallace v. McConnell, 13 Pet. 136; Wood v. Lake, 13 Wis. 94; Thomas v. Wooldridge, 2 Wood, 697; Franklin v. Ward, 3 Mason, 136; Freeman, Ex., § 166.

U. S. Cir. Ct., Colorado, March 28, 1883. Henry v. Gold Park Mining Co. Opinion by McCrary, J.

MARITIME LAW-CARRIER-PRESUMPTION OF NEGLIGENCE FROM FAILURE TO DELIVER GOODS.-When the evidence does not explain (to a degree sufficient to fix responsibility) the cause of the loss of a vessel, the case should be decided upon the general principles governing such cases. Non-delivery of goods shipped raises the presumption of negligence on the part of the carrier, and in an action for them, the burden is on carrier to show good excuse for the non-delivery, and if he fail to do so, he must be held liable. There be cases in which "the result is a safe criterion by which to judge of the character of the act which has caused it." See The Webb, 14 Wall. 406. For negligence or want of skill the owner or boat is responsible, although a licensed pilot was the real delinquent. See The China, 7 Wall. 67; The Merrimac, 14 id. 199; Sherlock v. Alling, 93 U. S. 105. U. S. Cir. Ct., E. D., Louisana, Jan., 1883. The Norton. Opinion by Pardee, J.

MARITIME LAW -VESSEL LIABLE FOR SEAMAN'S WAGES.-A vessel under charter is liable for the wages of seamen hired by the charterer, although the owner may not personally be liable therefor. Flaherty v. Doane, 1 L. Low. 148; The Adelphi, an unreported decision of Judge Sprague, cited in Flaherty v. Doane. A seaman is not bound by a clause in his shipping contract unfavorable to his interest, if it was concealed from him or its meaning misrepresented; and if from any cause he is unable to read the contract, he may * Appearing in 15 Federal Reporter.

show that it differs from his oral engagement upon clear proof that the written contract was not read or explained to him. Wope v. Hemmenway, 1 Spr. 300; The Quintero, 1 Low. 38. U. S. Dist. Ct., Massachusetts, Feb. 23, 1883. The Samuel Ober. Opinion by Nelson, J.

MARITIME LAW- NON-OBSERVANCE OF RULES OF NAVIGATION-NEGLIGENCE.- The non-observance of the statutory rules of navigation is itself a fault which charges the vessel with damages, where it appears that but for this fault the collision would have been avoided. Where a steamer in a fog does not go at "moderate" speed or slacken," as soon as there is perceptible danger of collision, as required by rule 17, and a collision ensues, which would have been avoided had the rule been observed, held, that the steamer is chargeable with fault, and responsible, notwithstanding the fault of the other vessel also, without which the collision would not have happened. The Louisana, 2 Ben. 373-376; McCready v. Goldsmith, 18 How. 90; St. John v. Paine, 10 id. 583; The Eleanora, 17 Blatchf. 88, 91, 101; The Great Eastern, 11 L. T. Rep. (N. S.) 5; The Gregory, 2 Ben. 168; The Northern Indiana, 3 Blatchf. 92, 101; The Genesee Chief, 12 How. 443, 461; The Favorita, 18 Wall. 598, 603; The Farnley, 1 Fed. Rep. 631, 637. U. S. Dist. Ct., S. D., New York, March 5 1883. The City of New York. Opinion by Brown, J

PENNSYLVANIA SUPREME COURT

ABSTRACT.

ious, the city is liable as if there had been express notice. The city is presumed to have knowledge of an open defect after a reasonable time has elapsed for its ascertainment and removal. Requa v. City of Rochester, 45 N. Y. 129. Where there is a latent defect which causes an injury, the city is not liable for the damages unless it had notice; but a defect is not latent which can be seen by the exercise of reasonable care and examination. If the alleged defect in the sewer was patent for so long a time prior to the injury that it ought to have been discoversd and repaired by the city, the plaintiff may recover without establishing actual notice. Vanderslice v. City of Philadelphia. Opinion by Trunkey, J.

[Decided April 16, 1883.]

OFFICER-LIABILITY OF FROTHONOTARY SATISFYING JUDGMENT BY MISTAKE.-Where a prothonotary satisfies a judgment without authority he is liable to a person injured thereby, and so are his bondsmen, even though he makes an honest mistake. Van Etten v. Commonwealth of Pennsylvania. Opinion by Mercur, C. J.

[Decided March 26, 1883.]

PARTNERSHIP-JUDGMENT NOTE OF, IN PAYMENT OF INDIVIDUAL DEBT OF PARTNER INVALID.-A judgment note of a firm given by a partner in payment of an individual debt is invalid as to firm creditors. In Donnally v. Ryan, 5 Wright, 506, Woodward, J., says: "Where no credit is given to a firm, which in law is a distinct person from the members who compose it, why should redress be sought against the firm? As well might a creditor who had loaned his money on the credit of an individual attempt to pursue it into the business or property of third parties and hold them responsible to himself." Purdy v. Powers, 6 Barr. 492. One of the general incidents of the partnership relation is the right of each partner to apply the firm assets to the payment of its liabilities; and following out that principle, it has been held that one of several partners may justly subject the joint property to levy and sale in discharge of partnership indebtedness, by giving a judgment note therefor in the name of the firm. Grier & Co. v. Hood, 1 Casey, 430; Ross v. Howell, 3 Norris, 129. But it is a very different thing, in a legal as well as moral point of view, for a partner to thus undertake to pay his individual debt without the knowledge of his copartner. Undoubtedly, the general and well established rule is, that au auditor, in the distribution of money in court, cannot inquire into the validity of a judgment regular on its face; but it is equally well settled that a collusive judgment may be attacked collaterally by judgment or execution creditors who would otherwise be defrauded thereby. Whenever such a judgment, or the execution issued thereon, thus comes in conflict with the claims of creditors, they may avoid its effect by showing, that as to them, it is a nullity. Dougherty's Estate, 9 W. & S. 196; Lewis v. Rodgers, 4 Harris, 18; Thompson's Appeal, 7 P. F. Smith, 175, 178; Second National Bank's Appeal, 4 Norris, 528. McNaughton's Appeal. Opinion by Sterrett, J. [Decided Dec. 30, 1882.]

669; Handley v. Statelor, 6 Litt. (Ky.) 186; Hess v. Cole, 23 N. J. Law, 116. Kepley v. Irwin. Opinion by Lake, C. J.

[Decided May 23, 1883.]

STATUTE OF FRAUDS PROMISE TO PAY DEBT OF ANOTHER.-Where the leading purpose of a person who agrees to pay the debt of another is to gain some advantage, or promote some interest or purpose of his own, and not to become a mere guarantor or surety of another debtor, and the promise is made on a sufficient consideration, it will be valid, although not in writing. Clopper v. Poland, 12 Neb. 69; Nelson v. Boynton, 3 Metc. 396. In such case the promisor assumes the debt and makes it his own. The promise is a direct undertaking on the part of the person promising to pay, not upon the failure of the debtor to pay, but to pay the debt. Such a contract rests upon the same grounds as a contract for property sold and delivered, and is not collateral. Fitzgerald v. Morrissey. Opinion by Maxwell, J.

[Decided March 20, 1883.]

SURETYSHIP-CONSTRUCTION -CONTINUING GUARANTY.-Defendant gave the following instrument to plaintiff: "Dear Sir: Please let Mr. John Newman have credit for goods to the amount of $100, and for the payment of which I hold myself responsible." This was signed by defendant. Held a continuing guaranty to the amount of $100. In Hargrave v. Smee, 6 Bing. 244, Tindal, C. J., said: "The question is, what is the fair import to be collected from the language used in this guaranty? The words employed are the words of the defendant, and there is no reason for putting on a guaranty a construction different from that which the court puts upon any other instrument. With regard to other instruments the rule is that if the party executing them leave any thing ambiguous in his expressions, such ambiguity must be taken most strongly against himself." In Mason v. Pritchard, 12 East, 227, it is said: "The words were to be taken as strongly against the party giving the guaranty as the sense of them would admit." In Lawrence v. McCalmont, 2 How. 426, it is said: "Some remarks have been made, on the argument here, upon the point, in what manner letters of guaranty are to be construedwhether they are to receive a strict or liberal interpretation. We have no difficulty whatever in saying that instruments of this sort ought to receive a liberal interpretation. By a liberal interpretation we do not mean that the words should be forced out of their natural meaning, but simply that the words should receive a fair and reasonable interpretation, so as to attain the objects for which the instrument is designed, and the purposes to which it is applied. We should never forget that letters of guaranty are commercial instruments, generally drawn up by merchants in brief language, sometimes inartificial, and often loose in their structure and form; and to construe the words of such instruments with a nice and technical care would not only defeat the intention of the parties, but render them too unsafe a basis to rely on for extensive credits." These cases, and others to the same effect, are cited with approval in the case of Ringe v. Judson, 24 N. Y. 64. In that case the guaranty was as follows: "Mr. Ringe-Sir: I will be accountable to you that Mr. Butler will pay you for a credit on glass, paints, etc., which he may require in his business, to the extent of $50. D. C. Judson." This was held to be a continuing guaranty, and the limitation was as to the extent of the guarantor's liability, and not of the credit to be given. Tootle v. Elgutter. Opinion by Maxwell, J.

[Decided March 20, 1883.]

The Albany Law Journal.

THE

us.

ALBANY, AUGUST 25, 1883.

CURRENT TOPICS.

HE relief of the United States Supreme Court is so important a matter that we have not hesitated to reiterate our own views, perhaps tediously, and to publish all conflicting views that are sent to We take pleasure in laying before our readers, therefore, the following communication from Mr. B. F. Lee, chairman of a special committee of the Association of the Bar of the city of New York, appointed last fall, on the "Bill to establish a Court of Appeals." The association recommended the Davis bill. Having already published Mr. Clifford Hand's views in opposition, we deem it fair to give Mr. Lee's. Mr. Lee says: "In your discussion of the subject of Federal appeals you seem uniformly to lose sight of the great oppression now caused by the practical absence of any appeal from the erroneous decisions of judges sitting alone. Where an injunction is granted the appeal is usually of no practical value. A prompt appeal to any sort of a court composed of three or more judges would be a great improvement, and relieve much injustice. As it is now, all suitors having cases involving less than $5,000 (a small class of cases being excepted) must content themselves with the decision of the court that first tries the cause or hears the motion. In cases of injunction, defendant's now are usually compelled to surrender and settle on plaintiff's own terms. Numerous such cases have come before my own observation, involving patents, subsequently declared void by the Supreme Court, after years of unjust extortion that would have been impossible if provision had existed for the review of orders and judgments by the Circuit Court of the Circuit sitting in banc. All the arguments you urge against the Davis bill would equally support a proposition to abolish the General Terms of our New York courts, thus compelling all suitors to seek redress from improper orders in the Court of Appeals alone. The relief of the Supreme Court is at present a matter of comparative insignificance, when we reflect upon the wide-spread injustice now resulting to suitors, who in some cases are actually and in others practically concluded by the decision of a single judge. It seems to me that there is great force in the suggestion, that the Supreme Court should not be troubled with appeals from the Circuit Court until after the judges of the Circuit sitting in banc have considered and decided the cases. Let them then go to the court of last resort. The single intermediate appellate court lately proposed would be soon overburdened, and become useless more so than would a single General Term for all the various courts of this State. Give us Federal General Terms of some sort, with three or more judges, and make them easily accessible to the suitors even if they cannot afford the luxury of $5,000 cases. If I am not much mistaken, a bill VOL. 28 No. 8.

in accordance with these views, introduced by Judge McCrary, when he was in Congress, received your most cordial support. I hope to see you again support some such measure for the relief of those of us whose practice is largely in the Federal Courts."

In the excellent "Notes" of the current number of American Law Review we greet a resuscitation of passages from an article in the old Southern Law Review, by Mr. John M. Shirley (probably), of New Hampshire, on "Reports, Reporters and Reporting." We are sure that our readers will be obliged to us for reproducing, for vacation reading, a few of the good things in which that article abounded, and that they will agree with the Review in its amazement that he came to know so much about " the manner in which judges do their work." The writer said: "One of the foremost jurists in New England, endowed with a mind of great strength and extraordinary celerity, weighted down with the necessity of examination, has been compelled to toil seventeen hours a day, at least six days in a week, for seventeen of the past twenty years. But even his iron constitution is beginning to bend under this terrible strain; young, he is rapidly growing old. He thinks he has discovered the sovereign panacea, the fountain of eternal youth and freshness. It is, to use the United States Digest to find the cases upon a given point and then read nothing but the reports. But for the reasons already assigned, the remedy will soon be worse than the disease, even for him; and others who lack his marvellous gifts can never hope to pattern his lightning pace." "In theory, each judge prepares the opinion to which his name is prefixed or appended, and the fact accords with it oftener than otherwise; but it is not universally true. In some instances, where the same question has arisen in two or more jurisdictions, a judge sometimes takes a published opinion, changes the names, dates, and localities, reads it to his associates, gets their assent, and lets it go down in the books as his own. Much oftener, he takes the reasoning of one or several opinions, or that of some friend in whom he has confidence, tinkers the phrases, interlards here a bit and there a little with his own language or illustrations, and gives it to the world in this new dress. But this frequently happens in another way. An important case is assigned; the judge sits down alone with his books, and works upon it for days; and then, to use the expressive language of an eminent jurist of fifteen years' experience upon the Supreme bench, finds himself 'unable to pick his way out of the woods.' He calls in aid some gifted associate, quick to see, full of resources, fertile in expedients, and ready with the pen. The result is, that the opinion which goes into the report, except, perhaps, a few prefatory lines, a change here and there in the form of expression, and a few of the concluding sentences,-- or at least the spinal marrow of the whole, is the offspring of another's brain. Such opinions are some