THE AMERICAN LAW TIMES.

NEW SERIES.-JULY, 1874. — VOL. I., No. 7.

DIGEST OF CASES

PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI

MILLS & Co.

1. INABILITY OF STATE TO CREATE A MARITIME LIEN. It is settled law that a state cannot create a maritime lien nor confer jurisdiction upon a state court to enforce such a lien by proceedings in rem. Wilson v. Bell, Chicago L. N., May 9, 1874; Int. Rev. Rec., May 25, 1874.

2. MARITIME LIENS FOLLOW THE PROCEEDS, but an admiralty court has no jurisdiction to distribute the same. Ib.

3. PROCEEDS FOLLOW THE CAUSE to the circuit court where they remain as long as the litigation continues. 1b.

4. LACHES IN ENFORCING LIEN FOR WAGES. -A seaman's lien for wages will not be enforced in admiralty, as against a bona fide purchaser, after the lapse of two seasons. Such a claim has become "stale.'

Though courts of admiralty are not governed by any absolute rule of limitations, they will never do injustice to bona fide purchasers by the

DIGEST OF CASES.

[No. 7.

Vol. I.] enforcement of old secret liens. The Harriet Ann, Chicago L. N., May 9, 1874.

5. A MINOR MAY SUE IN ADMIRALTY for wages where the contract was made with him personally, and it does not appear that he has any parent, guardian, or master entitled to receive his earnings. The Mellissa, Chicago L. N., May 16, 1874.

6. STALE CLAIM. In order to maintain the defence of stale claim, it is necessary to allege and prove that the respondents are purchasers in good faith, for a valuable consideration, and without notice of the existence of the claim.

Ib.

With the exception

7. TUG AND TOW. - RESPONSIBILITY OF TUG.of steering the tow, working her pump, and handling her end of the tow line, the tug is responsible for the navigation of both vessels. Her duties are those of a private carrier of the tow for hire, just as much as if she had the tow upon her own deck instead of astern at the end of a tow line. The Merrimack, Pac. Law Rep., May 12, 1874.

8. NEGLIGENCE BY TUG HAVING TOW IN CHARGE. As a bailee for hire the master of a tug is bound to exercise ordinary skill and prudence in selecting a proper time to make the voyage with reference to the character of the tow, wind, tide, and other peculiarities of the navigation.

If the tow be placed in peril by the negligence of the tug, it is no defence that the tow might have been saved if her crew had been more skilful.

WHERE THE TOW HAS PARTED FROM THE TUG, and being in peril is injured by the tug colliding with her while attempting to rescue her crew, the tug is not liable. 16.

ATTORNEY.

A PURCHASE BY A PLAINTIFF'S ATTORNEY, at a sale under a judgment in favor of such plaintiff, has the effect of constituting the attorney a trustee. Barrett v. Bamber, Leg. Int., May 22, 1874.

BANKRUPTCY.

1. A RECEIVER OF A CORPORATION, duly appointed in pursuance of the law where the corporation was created, will be recognized in bankruptcy proceedings as the representative of the corporation for all legal purposes. In re Republic Ins. Co., Ins. L. J., May, 1874.

2. FRAUDULENT PREFERENCE.- Where it appeared that judgments were entered against the bankrupts, upon warrants of attorney, a few days before the institution of bankruptcy proceedings, and executions issued which were levied upon all their available assets and their business at once broken up, it was held that such judgments were fraudulent preferences, and that the case of Wilson v. Bank of St. Paul, 1 Am. L. T. R. N. S. 1, did not establish otherwise. Zahm v. Fry et al. Pittsb. L. J., May 20, 1874.

3. OF THE JURISDICTION OF A BANKRUPTCY COURT IN RESPECT OF STATE COURT.—A court of the United States sitting as a court of bankruptcy has power to restrain the officers of a state court as well as suitors therein, and, generally, to fulfil all the exigencies of the bankruptcy act. Ib.

[No. 7.

pur

4. TITLE ACQUIRED UNDER VOIDABLE JUDGMENT. Where A chased real estate under a judgment of a state court entered before the filing of a petition in bankruptcy to set aside the judgment, and had constructive notice of the filing of the petition, and the judgment was voidable in bankruptcy on the ground of fraud, it was held that A took a good title, it not appearing that he had notice of the character of the judgment. Ib.

5. AS TO INSTRUCTION OF ASSIGNEE BY COURT. - A court of bankruptcy will not instruct an assignee, unless some question of disputable right is presented calling for judicial determination. In re Franklin Sav. Fund Society, Leg. Int., May 29, 1874.

BILLS AND NOTES.

1. PROMISSORY NOTE. - FAILURE TO READ. - NEGLIGENCE. —Held, that where the defendant signed a promissory note without reading it, supposing it to be a contract of another nature, the failure to read the note was negligence, which rendered defendant liable upon suit by an innocent holder for value. (New York Court of Appeals.) Chapman

v. Rose, Albany L. J., May 23, 1874; Central L. J., May 14, 1874. 2. NOTE WRITTEN IN GERMAN. A note written in German need not be declared upon as in the German language. Williams v. German Mut. Fire Ins. Co., Chicago L. N., May 9, 1874.

3. DUE BILL - REASONABLE TIME. - A due bill, signed by the defendants, was given in the following form :

"Due Joseph Dautel, or order, $1,619.66, being balance of principal and interest for four years and six months' services. This we will pay as soon as the crop can be sold or the money raised from any other source. Payable with interest.'

After the lapse of five years plaintiff brought suit, and it was held that he was entitled to recover. Nunez v. Dautel, Pac. Law Rep., May 19, 1874.

CONSTITUTIONAL LAW.

1. THE OBLIGATION OF CONTRACTS DEFINED AND EXPOUNDED. The obligation of a contract is the duty of performance according to its terms, the means of enforcement being a part of the obligation, which the states cannot by legislation impair. The municipal law enters into and forms part of this obligation; and to that parties must be considered as referring in order to enforce performance.

Whilst a state may modify the remedy, it is under a duty, if it interferes at all, to provide a remedy as sufficient and substantial as that subsisting when the contract was made. The remedy is inseparable from the obligation, otherwise the contract would be of the nature of those imperfect obligations or moral duties subject to the mere caprice and will of individuals. Whilst a state is free to alter the remedy, to prescribe the modes of suit and process, it cannot clog it with conditions and restrictions so as materially to impair its efficiency. Lasly v. Phipps, Am. Law Reg., April, 1874.

2. RAILROAD TARIFF. · POLICE REGULATION. tained the following:

A state law con

Vol. I.]

DIGEST OF Cases.

[No. 7.

"In the month of September, annually, each railroad company shall fix its rates of fare for passengers and freight, for transportation of timber, wood, and coal per ton, cord, or thousand feet per mile; also, its fare and freight per mile for transporting merchandise and articles of the first, second, third, and fourth grades of freight; and on the first day of October following shall put up at all stations and depots on its road a printed copy of such fare and freight, and cause a copy to remain posted during the year. For wilfully neglecting so to do, or for receiving higher rates of fare or freight than those posted, the company shall forfeit not less than one hundred dollars, nor more than two hundred dollars, to any person injured thereby and suing therefor." Held, that the law was merely a police regulation, and therefore not unconstitutional. C. & N. W. R. W. Co. v. Fuller, Albany L. J., May 16, 1874.

3. ASSESSMENT FOR PAVING STREET. An act of the legislature of New Jersey provided as follows:

"That when more than one half of the owners of the frontage on the line of any street, or section thereof, which is now paved, shall apply to have such street or section repaved, it may be lawful for the common council to order and cause the repaving thereof, and they shall assess upon the owners of the lots fronting upon the line of such street or section thereof, two thirds of the cost and expenses of such repaving, and the city treasury shall bear the remaining one third; and the city shall be entitled to all the old material, and said assessment to be made in all respects as were required by the act to which this is a supplement and the supplements thereto in cases of the original paving of streets." Held, that the provision was unconstitutional; that the benefit was local, and that, therefore, any general taxation was inadmissible. Mayor, &c. of Newark v. State, &c., Cent. L. J., May 21, 1874.

4. TITLE OF ACT. The essence of the requirement, that an act shall not contain more than one subject, which shall be clearly expressed in the title, is that all the subjects dealt with in the act shall be cognate to the title. Schall v. Norristown, Leg. Gazette, May 15, 1874.

5. PUBLIC MUNICIPAL IMPROVEMENTS.- An act which provides for the payment of the expense of the improvements of a city by those directly benefited is not unconstitutional. Ib.

CONTRACT.

1. LEGISLATIVE CONTRACT. HIGHWAY.- Although a legislative enactment creating a private corporation is a contract, it does not follow that an enactment providing for the opening of a highway in a particular manner is a contract that for all time the manner provided in the enactment shall be the only manner in which the highway may be opened. In re Girard College Grounds, Leg. Gazette, May 22, 1874; Leg. Int., May 22, 1874.

2. LEGISLATIVE CONTRACT DISTINGUISHED. - TAXATION. Where an act, under which a railroad company was formed, prescribed the payment of a particular tax, it was held that such act was not an agreement that no other tax should be levied, but a mere declaration of the tax to be paid at the time of the passage of the act. Minot v. P. W. § B. R. R., Chicago L. N., May 16, 1874.

Bankers are compe

1. AS TO GENUINENESS OF TREASURY NOTE, tent to testify as experts to determine the genuineness of a treasury note. The opinions of persons through whose hands it has passed may, however, be inadmissible. Atwood v. Cornwall, Am. Law Reg., April, 1874. 2. OPINIONS AS TO QUALITY are incompetent unless there be fraud or warranty. Whitaker v. Eastwick, Leg. Int., May 22, 1874.

3. EJECTION FROM CAR ON RAILROAD. OFFER TO PAY UPON SURRENDER OF TICKET. - A party purchased a ticket to a particular place, before arriving at which he voluntarily left the train without informing the conductor of any intention to continue the journey to the place named on the ticket. Several days afterward he attempted to ride upon the ticket to the place named, upon another train, the conductor of which took up the ticket and put the party off. In an action for damages, the exclusion of evidence that the party offered to pay upon a surrender of his ticket was held to be error. Vankirk v. Penn. R. R. Co., Leg. Gazette, May 29, 1874.

4. DECLARATIONS OF TICKET AGENT AFTER SALE OF TICKET. Evidence of the declarations of a ticket agent as to a party's right to ride upon a ticket which the agent had sold, held to be inadmissible as evidence of a contract, but not inadmissible as evidence of the good faith of the party in his claim to ride upon the ticket. 16.

5. PARTY ON RAILROAD PERMITTED TO RIDE PAST STATIONS. PUTTING PARTY OFF BETWEEN STATIONS. The conductor having suffered the plaintiff to ride past several stations before ejecting him, and then having put him out, remote from any shelter, and in a severe storm: it was held, that those circumstances might be considered by the jury in deciding whether the conductor intentionally selected an inhospitable spot, or whether it happened to be the locality of the plaintiff's persistent refusal to pay. lb.

6. AFFIRMATIVE PROOF TO REBUT EVIDENCE OF DIFFERENT STATEMENT OUT OF COURT. When an attempt is made to impeach a witness by proving former contradictory statements, he may be supported by evidence that he has made to other persons declarations consistent with his testimony. Such is the law of Indiana, and perhaps of Pennsylvania and North Carolina. In New York, as in England, after much uncertainty, the rule seems now to be settled that such evidence is ordinarily inadmissible; and in others of the states it is rejected. The best elementary writers reach the conclusion that the evidence is to be received only in exceptional cases. People v. Doyell, Pac. Law Rep., May 5, 1874.

See HUSBAND AND WIFE, 1.

HOMESTEAD EXEMPTION.

1. THE MISSISSIPPI STATUTE of 1865 held to be unconstitutional in so