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2. IN SUPREME COURT U. S. AS TO APPEAL OR WRIT OF ERROR. — Where all the defendants will be affected they must all join in the writ or appeal. Simpson v. Greely, Chicago L. N., August 15, 1874.
3. MAINTENANCE OF LUNATIC CRIMINAL. — The proper action by a county for money paid for the maintenance of a lunatic criminal is assumpsit. Director: v. County of Mountour, Leg. Int., August 28, 1874.
4. SERVICE AGAINST FOREIGN INSURANCE COMPANY. — Service of summons in a suit against a foreign insurance company upon a sub-agent appointed by a general agent is not good. Diffenderfer v. North America Life Ins. Co., Ins. L. J., August, 1874.
5. EVIDENCE. – SURPRISE. - CONTINUANCE. — In a case of surprise by the introduction of testimony which may be contradicted a continuance should be allowed. Beaumont v. Gray's Executors, Mo. West. Jur., Aug. 1874. See BANKRUPTCY, 1, 2; NEW TRIAL; REMOVAL OF CAUSES; RE
PROMISSORY NOTE. ACCOMMODATION INDORSER. — An accommodation indorser of a promissory note is to be regarded as an indorser in the usual legal sense. If there be more than one accommodation indorser, they sustain the same relations to each other as if the paper was an ordinary business note. The fact that each knew that the other was an accommodation indorser is immaterial in the absence of an agreement to share the liability. Kirschner v. Conklin, Am. Law Reg., August, 1874.
REMOVAL OF CAUSES. 1. A CORPORATION MAY REMOVE a case from a state to a federal court under the act of 1867. The necessary affidavit to procure the removal can be made by the proper officer of the corporation. Mr. Justice MILLER, DILLON, C. J. concurring. Farmers' Loan, fc. Co. v. Marquillan, West. Jur., August, 1874.
2. NATIONAL BANK. - A national bank may remove a cause from a state to a United States court. The act of July 27, 1868, does not take away such right. Chatham Nat'l Bank v. Merchants' Nat'l Bank, Daily Reg., August 24, 1874.
REPLEVIN. DAMAGES cannot be recovered in an action of replevin. Pennybecker v. McDougal, Pac. Law Rep., July 14, 1874.
DIGEST OF CASES.
2. Tax ON GROSS EARNINGS OF RAILROAD BY STATE. — The pay-
3. RES ADJUDICATA. — INJUNCTION RESTRAINING THE COLLECTION
See CONSTITUTIONAL LAW, 1, 2 ; INTERNAL REVENUE.
IN RE Tivolt Brewing Co.
tee the sale of the property should be made by his “ legal representative." The trustee having died, and a default which authorized a sale arisen, the property was sold by the trustee's administratrix. Held, that the sale was irregular and not in compliance with the deed. That as there was no grantee or assignee, and hence no “ legal representative," in the sense in which the term must be held to have been used in the deed, a new trustee should have been appointed, or the trust deed foreclosed by bill in chan-. cery as an ordinary mortgage. Warnecke v. Lembca, Mo. West. Jur., August, 1874.
TRUSTEE LIABILITY OF. — CONFEDERATE MONEY. - Where a guardian loaned money pertaining to his ward's estate and accepted payment in Confederate currency, he was held to be liable for the amount so loaned. But if any portion could not have been saved by the exercise of proper diligence during the war and afterwards, as to such portion there was no liability. Ferguson v. Lowry, Cent. L. J., August 20, 1874.
WILL. OMISSION OF NAME OF RESIDUARY LEGATEE. — A will was duly witnessed, a blank space being left for the name of the residuary legatee, which was subsequently inserted. Held, that the residuary bequest was no part of the will. Derr v. Greenawalt, Leg. Int., August 28, 1874.
DISTRICT COURT U. S.-SOUTHERN DISTRICT OF N. Y.
BANKRUPTCY. - PRACTICE UNDER ACT OF JUNE 22, 1874. — PETITION BASED UPON FAILURE TO PAY COMMERCIAL PAPER FILED LESS THAN FORTY DAYS PRIOR TO PASSAGE OF SAID ACT.
IN RE THE TIVOLI BREWING CO.
D, J. The pe The only, afell due June ad
BLATCHFORD, J. The petition in this case, in involuntary bankruptcy, was filed June 19th, 1874. The only act of bankruptcy it alleges is the failure to pay commercial paper which fell due June 4th, 1874. As under the act of June 22d, 1874, no person can be adjudged a bankrupt for the failure to pay commercial paper, on a petition filed before the expiration of forty days from the maturity of the paper (instead of fourteen days, as under the former law), and as this provision applies to cases commenced since December 1st, 1873, this petition stands now as having been prematurely filed, and cannot be availed of after the expiration of the forty days, and cannot be amended, but must be dismissed, without costs.
CAMPBELL v. CAMPBELL.
SUPREME COURT OF ILLINOIS.
[TO APPEAR IN 63 ILL.]
JURISDICTION OF INFANTS. — “DUE PROCESS OF LAW " DEFINED.
CAMPBELL v. CAMPBELL.
In a proceeding for partition, in which the lands of infant defendants were ordered
to be sold, there was no actual service of process on the infant defendants, but the court appointed a guardian ad litem, who answered for them : Held, that the court
had no jurisdiction of the persons of such defendants. Although the forty-seventh section of the chancery statute seems to authorize a decree
against infant defendants without service of process on them, yet the court holds that the legislature has not the power to authorize a court to take the title of any
one without notice, actual or constructive, to appear and defend. The words “due process of law,” in the clause of the constitution forbidding the
divestiture of title except by due process of law, has reference to judicial proceedings according to the course and usage of the common law, which must always be based upon notice. The appointment of a guardian ad litem for an infant defendant, who has had no notice of the suit, is not due process of law.
Mr. Chief Justice LAWRENCE delivered the opinion of the court:
In this case the summons against the infant defendants was returned not served, but, nevertheless, the court proceeded to appoint a guardian ad litem, who filed the usual answer, and the court decreed a sale of the land. This court said, in McDurmaid v. Russell, 41 Ill. 490, and in Hickenbotham v. Blackledge, 54 Ib. 318, that infant defendants must be served before the court can acquire jurisdiction over them. It is true, the forty-seventh section of the chancery statute seems to authorize a decree without service, but we think the practice has rarely been adopted. Certainly no argument is necessary to demonstrate that the legislature cannot authorize a court to take the title of any one without notice, actual or constructive, to appear and defend. A judicial decree pronounced without jurisdiction is void. Jurisdiction over parties is only obtained by notice, actual or constructive. These are elementary principles. Yet this statute seems to authorize a court to appoint a stranger as guardian ad litem for an infant, and then to sweep away his estate without notice to him or defence in his behalf, as the guardian ad litem generally knows nothing of the facts and takes no interest in the suit. It may be asked, what is service on an infant worth? The answer is, that notice is thus given to his family, his kindred, or his guardian, and they will see that his rights are protected. But to allow the estate of an infant to be decreed away without notice to his natural or legal protectors, and upon the mere appointment of an utter stranger as a nominal guardian for the suit, is a violation of all the safeguards which the constitution has erected for the security of property, and especially of that provision which forbids the divestiture of title except by due process of law. Such a proceeding is not due process of law, as that has reference to judicial proceedings according to the course and usage of the common law, and must always be based upon notice. Vol. 1.)
Notes or New Books.
These principles are so elementary, and have become so familiar by frequent decisions, that it is unnecessary to consume time in discussing them or to cite authorities in their support. Probably no person would contend that a court could acquire jurisdiction over an adult defendant without notice, by ordering an attorney of a court to enter his appearance; and we can see no difference in principle between such a case and one where the court seeks to acquire jurisdiction by appointing a guardian ad litem for an infant, and requiring him to file an answer.
The decree of the court below is reversed and the cause remanded.
NOTES OF NEW BOOKS. FORMS AND PRACTICE, or American Precedents in Personal and Real Actions, is the title of a new work by Benjamin L. Oliver, Esq., published by Dresser, McLelland & Co., of Portland. Price $7.50 Messrs. W. H. & 0. H. MORRISON, of Washington, have ready 18th Wallace.
THE SAME PUBLISHERS have in press and will shortly issue the first volume of Mr. Justice Miller's series continuing Curtis's Decisions.
AN ATTRACTIVE LITTLE Work upon patents, entitled Manual of Patent Law, by William E. Simonds, Esq., has recently been issued. It is only objectionable as seeking to simplify a very difficult subject - "the metaphysics of the law.” It will, however, be read with profit and interest, especially by inventors.
Mrs. MYRA BRADWELL, Editor of the Chicago Legal News, has published the second volume of Reports of Examination of Law Students for Admission to the Bar as conducted by the supreme court of the State of Illinois. The object of the book is to give an idea of the requirements of the court. Price, in paper, 75 cents.
THE Fourth VOLUME of the United States Digest, new series, Little, Brown & Co. publishers, is ready for delivery.
Civil LIBERTY AND SELF-GOVERNMENT. A third edition of this great work edited by Theodore Dwight Woolsey, has been issued from the press of J. B. Lippincott & Co., of Philadelphia.
Messrs. LITTLE, BROWN & Co. announce editions of Indermur's Epitome of Leading Common Law Cases ; Roscoe's Digest ; Fearne on Remainders ; Burge's Commentaries on the Law of Suretyship. Also a new edition of Perry on Trusts, and Chaplain on the Criminal Law and Procedure of Massachusetts.
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