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DIGEST OF Cases.
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.
re H. CONSTRUCTO the 39th his creditors against him
BANKRUPTCY. 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, fe. Am. Law Reg., August, 1874.
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.
Digest OF CASES.
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.
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."
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.
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 pro[No. 10.
1 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.
DIGEST OF CASES.
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, fc. 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 one. Burr v. City of Carbondale, Chicago L. N., July 25, 1874.
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.
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Digest Of Cases.
CORPORATION. WHEN SIGNATURE OF PRESIDENT WILL BIND THE CORPORATION. — EVIDENCE. — CONTRACT. — A contract was made which began : “ This indenture made ..... between A of Chicago, party of the first part, and B, President of the Northwestern Distilling Co. of the same place, party of the second part.” In the body of the contract the parties were mentioned as of the first and second part, and the pronouns he, his, or him used to denote the party of the second part. One of the covenants was as follows: “ And the said party of the second part further covenants with the said party of the first part, that at the expiration of the term, he will yield up the demised premises to the said party of the first part, in as good condition as when the same were entered upon by the said party of the second part,” &c. The instrument concluded, “In testimony whereof, the said parties have hereunto set their hands and seals, the day and year first above written,” and was signed and sealed : D. R. Brant, [Seal.] Northwestern Distilling Co., [Seal.] By Edward Lawrence, President. Held, that it might be shown that it was the intention of the corporation to make the contract, and that the action was properly brought against it. N. W. Distilling Co. v. Brant, Chicago L. N., Aug. 8, 1874. See BANKRUPTCY, 4; CONSTITUTIONAL LAW, 2; ESTOPPEL; REMOVAL
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CRIMINAL LAW. 1. TWICE IN JEOPARDY. — A defendant is placed in jeopardy, when he is regularly placed on trial. His jeopardy is real unless it shall subsequently appear that a verdict could never have been rendered by reason of the death or illness of the judge or juryman, or that after due deliberation the jury could not agree, or by reason of some other like overruling necessity which compels their discharge without the consent of the defendant. People v. Hunckler, Pac. Law Rep., Aug. 11, 1874.
2. STATE OFFICER. — BRIBERY. — A state senator is “ an officer of the State ” within the meaning of the statute of Kansas touching bribery. State v. Pomeroy, Cent. L. J., Aug. 20, 1874.
3. POSSESSION OF STOLEN PROPERTY AT UNSEASONABLE HOUR.— The larceny appeared to have been committed sometime during the night, and the property was found by the police in the possession of the defendant and another person with him, in a small boat managed by them, at half after three o'clock in the morning. Held, that the possession at that unseasonable hour for lawful traffic was, within the authorities, sufficient to maintain the presumption of the defendant's criminal agency in procuring it; that it was so recent, and so suspicious, that it was consistent with no other rational conclusion than that of guilt. — Dillon v. The People, Daily Reg., Aug. 27, 1874.
See CONSTITUTIONAL LAW, 4.
Digest Of Cases.
DEBTOR AND CREDITOR.
ECCLESIASTICAL LAW. OF PROCEEDINGS BY CHURCH COURTS IN THE UNITED STATES. — THE CHENEY CASE. — In the year 1869 the Rev. Mr. Cheney, at that time a presbyter of the Protestant Episcopal Church in the diocese of Illinois, and rector of Christ Church, in the city of Chicago, was presented for violation of the constitution and canons of said church. After a church court, composed of five presbyters, the number prescribed by the canons of said church, had been organized, a bill was filed to restrain such court from proceeding, and an injunction granted, which was dissolved upon appeal. In the mean time one of the presbyters of the church court became ineligible and a trial was had by four presbyters, which resulted in the conviction of the accused, and sentence of suspension was pronounced by the bishop of the diocese.
Notwithstanding the sentence the Rev. Mr. Cheney continued to act as rector of Christ Church, whereupon he was tried, under protest, in the year 1871, by a new church tribunal, for contumacy, of which charge he was found guilty and a sentence of deposition pronounced by the bishop in due form.
Disregarding the second sentence, also, Mr. Cheney continued in charge of Christ Church, whereupon suit was brought by the complainants, communicants of the Protestant Episcopal Church and pew-holders in said Christ Church, to restrain him from officiating as rector, and the vestrymen and wardens from permitting him to officiate as rector in said Christ Church, on the ground that said Cheney had been, in May, 1871, in due form and manner, in compliance with the laws of the Protestant Episcopal Church, put upon his trial for offences against the laws of said church, and upon said trial found guilty, and thereafter sentenced and deposed from the priesthood and ministry in said church ; and that by reason of said deposition said Cheney had lost all right to the use of said church as rector, and the parsonage connected therewith, and the other defendants were perverting their trust in devoting the income of said church to the support of a deposed minister. The bill prayed for a perpetual injunction, restraining such use of the church property and such a diversion of the church income. Held, that the verdict of the first tribunal which consisted of only four presbyters, being one less than the number prescribed by canon, was a nullity, and that the verdict of the tribunal which found the accused guilty of contumacy was, consequently, equally void. The Rev. Mr. Cheney, therefore, had never been suspended or deposed and the bill was without equity.
The court discusses at great length divers points presented, affecting the jurisdiction of church tribunals, their relations to the civil courts, the powers of a bishop of the Protestant Episcopal Church in the United States, and other questions incidental to the cause. Calkins v. Cheney, Chicago L. N., August 22 and 29, 1874.