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Vol. I.]

NOTES OF NEW BOOKS.

[No. 9.

[NOTE. The above act has been construed by the newspapers to be a measure of real importance and one conferring privileges which did not exist prior to its passage. An examination of its provisions will, however, disclose that it has practically no force whatever, other than to decrease the labors of the Librarian of Congress at the expense of the Commissioner of Patents.

Manufacturers are permitted to file their labels, &c., in the Patent Office upon paying a duty of six dollars, but they do not thereby acquire a right of action, nor is the label clothed with new attributes of any kind. Numerous parties may deposit the same design, and, whatever the facts as to ownership, each design will be duly "registered" without let or hindrance or even examination, except to determine whether or not it pertains to the fine arts and whether or not it is a trade-mark. In short, substantially the only privilege conferred is that of paying six dollars.

To pronounce the act an anomaly is to cloak its almost ridiculous character. It is neither more nor less than an imposition upon the public. It provides for the payment of a duty without the semblance of a return. It appeals effectively to a class long accustomed to a misconstruction of the copyright laws, and its only success will consist in fleecing them, along with others, of six dollars for every label, instead of fifty cents as hitherto. A more arrant blunder is not to be found in the history of American legislation. EDITOR LAW TIMES.

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NOTES OF NEW BOOKS.

MESSRS. A. L. BANCROFT & Co. of San Francisco will publish during the present month a second edition of Freeman on Judgments, a work of great merit. Price $7.50. FORTESCUE'S DE LAUDIBUS LEGUM ANGLIAE is announced as in press by Messrs. Robert Clarke & Co. The edition will contain a life of the author by Lord Clermont, one of his descendants, and will be attractively published.

MESSRS. LITTLE, BROWN & Co. propose to reprint the entire series of the Reports of Crown Cases Reserved, to be embraced in six volumes, and edited with notes and references by F. F. Heard, Esq.

THE SAME HOUSE have in preparation Cox's Criminal Law Cases, containing cases in criminal law determined in all the English and Irish courts from 1843 to the present time. PHILLIPS'S MECHANICS' LIENS, and a new edition of Story on Agency, the eighth, published also by Messrs. L., B. & Co., are now ready. Price of either, $7.50.

THE STATUTES of the United States relating to Bankruptcy, with notes by Seymour D. Thompson, Esq., of the Central Law Journal, is offered by Messrs. Soule, Thomas & Wentworth of St. Louis. Price 75 cts.

MESSRS. BAKER, VOORHIS & Co. announce a number of acceptable works, among which are A Digest of the Law of Railways; Decolyar on the Law of Guarantees, with notes and references to American cases; Heard's Criminal Pleadings; Tyler's Mitford's Chancery Pleadings, seventh American edition; Leading Cases on the Law of Damages; Digest of the Law of Evidence at Nisi Prius, arranged for American Practice on the plan of Roscoe's popular English work, and Leading English Patent Cases, with references to American decisions.

MESSRS. WM. GOULD & SON, of Albany, have now ready the sixth volume of Moak's English Reports. Price $6.

THE THIRD VOLUME of American Railway Reports, Jas. Cockcroft & Co., of New York, publishers, has been issued. Price $6.

THE AMERICAN LAW TIMES.

NEW SERIES.-OCTOBER, 1874.- VOL. I., No. 10.

DIGEST OF CASES

PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI

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ODICALS.

ABBREVIATIONS.

•Albany Law Journal, Albany, N. Y.,
WEED, PARSONS & Co.
.American Law Record, Cincinnati, O.,
H. M. Moos.
.American Law Register, Philadelphia, Pa.,
D. B. CANFIELD & Co.

. Central Law Journal, St. Louis, Mo., SOULE, THOMAS & WENTWORTH. ...Chicago Legal News, Chicago, Ill.,

CHICAGO LEGAL NEWS Co.

.Daily Register, New York,

303 BROADWAY, N. Y.
.Insurance Law Journal, New York,
C. C. HINE, 176 BROADWAY.
..Internal Revenue Record, New York,
W. P. & F. C. CHURCH.
.Legal Chronicle, Pottsville, Pa.,

SOL. FOSTER, JR.

..Legal Gazette, Philadelphia, Pa.,

KING & BAIRD.

Legal Intelligencer, Philadelphia, Pa.,
J. M. POWER WALLACE.
...Monthly Western Jurist, Bloomington, Ill.,
THOMAS F. TIPTON.

Pacific Law Reporter, San Francisco, Cal.,
J. P. BOGARDUS.
Pittsburg Legal Journal, Pittsburg, Pa.,
J. W. & J. S. MURRAY.
Western Jurist, Des Moines, Iowa,
MILLS & Co.

ADMIRALTY.

MARITIME LIEN FOR REPAIRS AND SUPPLIES IN HOME AND FOREIGN PORTS. Held: 1. That while in foreign ports the presumption of a necessity for relying upon the credit of the vessel for repairs arises from the necessity of repairs to enable the vessel to prosecute the voyage; in home ports the presumption of a necessity for relying upon the credit of the vessel does not exist.

2. That in a foreign port the master, as performing the duties of that officer, has authority to bind the vessel and her owners for the necessary expenses of the boat, but in the home port he has not that right.

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3. That while in a foreign port the necessary repairs are restricted to such as will enable the vessel to pursue her voyage with safety, the repairs in the home port where they may be ordered by the owners, are not of necessity restricted within such narrow limits.

4. Those who in a home port furnish repairs and supplies must show affirmatively, in order to have a lien on the vessel, that is was necessary to rely on the credit of the vessel, or in other words, that the credit of the owners was not such as would justify a prudent man in furnishing the repairs and supplies solely on their personal credit. Many persons in the home ports have been accustomed, in consequence of the state boat acts, to suppose that repairs and supplies furnished there at the instance of the master gave a lien irrespective of all other considerations; but as they — so far as they trespass upon admiralty jurisdiction — are void, it is important that material-men in home ports bear in mind the distinction above stated, and the elements out of which a lien in a home port springs. Taylor v. The Commonwealth, Am. Law Reg., August, 1874.

BANKRUPTCY.

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1. PRACTICE. WITHDRAWAL OF CREDITORS. Creditors who, since the amendment of June 2d, 1874, have joined in the petition, cannot afterwards be allowed to withdraw from the proceedings. Such a practice would lead to underhanded agreements between the debtor and a part of his creditors at the expense of the others, and cannot be allowed.

Semble: If all desire to dismiss the proceedings it could be done. In re Heffron, Chicago L. N., August 1, 1874.

2. CONSTRUCTION OF SEC. 39 AS AMENDED BY ACT OF' 74. — Under the amendment to the 39th section of the bankrupt law, the debtor will be required to file a list of his creditors, and the amount of their claims, where an involuntary petition was filed against him since December 1, 1873, to which he had made a denial and a demand for a jury trial, and had since filed a demurrer. Warren Savings Bank v. Palmer, Chicago L. N., August 8, 1874; Leg. Int., August 14, 1874.

3. ACT OF BANKRUPTCY. MORTGAGE. FRAUDULENT PREFERENCE. -A mortgage by a railroad company to secure all its creditors equally out of its earnings is not a fraudulent preference or an act of bankruptcy. In re Union Pac. R. R. Co., Leg. Int., August 14, 1874.

4. SET-OFF. PUBLIC POLICY.- An insurance company reinsured certain of its policies in another company and subsequently became insolvent. The company in which the reinsurance was effected purchased outstanding policies of the other company at a large discount. In a suit to recover the reinsurance it was held, that the purchase by the second company was not in excess of its corporate powers nor contrary to public policy. And that the policies purchased could be set off at their face value against the reinsurance. SWING, D. J., Hovey v. Assignees, &c. Am. Law Reg., August, 1874.

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5. ACT OF '74 NOT RETROACTIVE IN RESPECT OF FRAUDULENT CONVEYANCES MADE PRIOR TO DEC. 1, 1873. — The amendatory act of June 22, 1874, cannot be construed to affect a fraudulent conveyance made prior to December 1, 1873.

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HOPKINS, J, writes as follows: "In almost every case where the jury would be warranted in finding that the party had good reason to believe,' under the old statute, they would be justified in finding that he knew' under the amended law, so that practically the amendment is merely a verbal one in that respect. It is a rule of universal application, in all cases of fraud on the part of the debtor or seller of property, that notice of facts sufficient to put a party upon inquiry amounts in judgment of law, to notice, and is sufficient to charge the purchaser with knowledge of the matters and things it is reasonable to suppose such inquiry or investigation would have discovered. Inquiry on the part of the purchaser having such notice becomes a duty, and diligence an act of justice. A scienter may be shown by circumstances, and whatever fairly puts a party upon inquiry, when the means of knowledge are supposed to be at hand, if he omits to inquire, he does so at his peril, and he is chargeable with a knowledge of all facts which, by a proper inquiry, he might have ascertained. Hamlin v. Pettibone, Central L. J., August 13, 1874; Albany L. J., August 29, 1874.

CONFEDERATE MONEY.

See TRUSTEE.

CONFEDERATE SERVICE.

See MORTGAGE.

CONSTITUTIONAL LAW.

1. UNCONSTITUTIONALITY OF THE LAW CREATING THE STATE BOARD OF EQUALIZATION OF CALIFORNIA. - The constitution of California contains the following provisions: "The powers of the Government of the State of California shall be divided into three separate departments the Legislative, the Executive, and the Judicial." "The Legislative power of this State shall be vested in a Senate and Assembly." The Political Code contains the following section: "The State Board of Equalization must determine and transmit to the Board of Supervisors of each county the rate of state tax to be levied and collected, which, after allowing for delinquency in the collection of taxes, must be sufficient to raise the specific amount of revenue directed to be raised by the Legislature for state purposes.

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Held, that said section of the Code was unconstitutional in that it attempted to confer upon the state board the power to add to the amount of tax to be levied by law; that the legislature had no power to commit to the board the exercise of functions which are confided by the organic law to the legislative branch and which pertain to it alone. Houghton v. Austin, Pac. Law Rep., Aug. 18, 1874.

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2. TAXATION OF PROPERTY OF CORPORATIONS. The constitution of Iowa contains the following provisions: "The property of all corporations for pecuniary profit shall be subject to taxation, the same as that of individuals." An act was passed, one section of which was as follows: " Every railroad company which shall have paid all taxes on gross earnings pro1 An interesting review of this case antago- lished in the issue of the Central Law Journal nistic to the opinion of Judge HOPKINS, is pub- for August 27, 1874.

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vided for by chapter 106, of the acts of the Thirteenth General Assembly, shall be released from the payment of all other taxes which may have been levied upon the road-bed, right of way, track, rolling stock, and necessary buildings for operating their road, and no taxes for prior years for state, county, municipal, or any other purpose for which any tax can be levied under the laws of the State, up to the first day of January last, shall be collected from any such railroad company on such property." Held, that the act was a violation of the provision of the constitution quoted, in that it was a discrimination in favor of railroad corporations against individuals. Davenport v. Chicago, &c. R. R. Co., West. Jur., August, 1874.

3. THE ACT AUTHORIZING the issue of bonds in aid of the Southern Normal University of Illinois is constitutional, the object being a public Burr v. City of Carbondale, Chicago L. N., July 25, 1874.

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4. ACT AUTHORIZING ISSUE OF CRIMINAL WARRANTS WITHOUT PROOF OF PROBABLE CAUSE. An act which authorized a state's attorney to file informations upon which criminal warrants were to issue, without proof of probable cause, held to be inhibited by the constitution of the State of Illinois. People v. Brown, Chicago L. N., Aug. 29, 1874.

CONTEMPT.

LETTER IN NEWSPAPER. JURISDICTION OF COUNTY COURT JUDGE. A judge of an English county court had summoned the applicant to answer for contempt of court in writing to a local newspaper a letter which contained reflections upon the judge's conduct in a case judicially before him: Held, upon a prohibition to restrain the judge from proceeding upon the summons, that a court of record of inferior jurisdiction has no authority to interfere summarily with contempts of this kind out of court. In re Jolliffe, Chicago L. N., Aug. 15, 1874.

CONTRACT.

EXECUTORY CONTRACT. WARRANTY. SALE WITHOUT DELIVERY. -A sold B a certain number of barrels of sugar by sample, at an agreed price, the sugar to be delivered when called for. No time was specified for the delivery, and there was no setting apart of the specific number of barrels sold. Shortly after the sale, within a reasonable time, B sent for the sugar, and upon opening it found it to be in an unmerchantable condition, whereupon he offered to return it and A declined to receive it. Held, that the contract was executory, and that the law would imply that the parties contemplated that the sugar should be of a fair and merchantable quality and raise a warranty to that effect; that the contract being executory, the law gave B a reasonable time in which to make a fair examination and see if the sugar answered the character of that called for by the contract; that what constituted a reasonable time was a question for a jury. And that if B failed to make the examination within such reasonable time he would be precluded from rescinding the contract, but would still have the right to rely upon the implied warranty in mitigation, or, in other words, would be liable only upon a quantum meruit for the goods. Doane v. Dunham, Mo. West. Jur., August, 1874.

See CORPORATION.

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