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THE AMERICAN LAW TIMES.
NEW SERIES. — NOVEMBER, 1874. – Vol. I., No. 11.
DIGEST OF CASES
PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERI
ABBREVIATIONS. Albany L. J........
......... Albany Law Journal, Albany, N. Y.,
WEED, PARSONS & Co. Am. Law Rec....... ......... American Law Record, Cincinnati, O.,
H. M. Moos. Am. Law Reg.........
........ American Law Register, Philadelphia, Pa.,
V. B. CANFIELD & Co. Cent. L. J......
......... Central Law Journal, St. Louis, Mo.,
SOULE, THOMAS & WENTWORTA. Chicago L. N.
......... Chicago Legal News, Chicago, Ill.,
Chicago LEGAL News Co. Daily Reg........
.........Daily Register, New York,
303 BROADWAY, N. Y. Ins. L. J.........
.......Insurance Law Journal, New York,
C. C. HINE, 176 BROADWAY. Int. Rev. Rec......
........Internal Revenue Record, New York,
W. P. & F. C. CHURCH. Leg. Chron........
.........Legal Chronicle, Pottsville, Pa.,
Sol. FOSTER, JR. Leg. Gazette.......
......... Legal Gazette, Philadelphia, Pa.,
King & BAIRD. Leg. Int.........
..........Legal Intelligencer, Philadelphia, Pa.,
J. M. Power Wallace. Mo. West. Jur........
...........Monthly Western Jurist, Bloomington, Ill.,
THOMAS F. TIPTON. Pac. Law Rep........
.........Pacific Law Reporter, San Francisco, Cal.,
J. P. BOGARDUS. Pittsb. L. J.......
.........Pittsburg Legal Journal, Pittsburg, Pa.,
J. W. & J. S. MURRAY. West. Jur. ...... .......... Western Jurist, Des Moines, Iowa,
Mills & Co. ADMINISTRATOR. UNTIL AN ADMINISTRATOR HAS QUALIFIED and filed his bond, his appointment is in fieri. Prior v. Downey, Pac. Law Rep., Aug. 25, 1874.
Western Jurist, Del; W. & J. S. MURRAY.
ADMIRALTY. 1. COLLISION BETWEEN SAILING VESSELS. — Two sailing vessels, the Hazell Dell and Victoria, close hauled and having the wind on different sides, were beating up a narrow inlet against a head wind, when a colliVOL. I.
DIGEST OF Cases.
sion took place. Held: 1. That by the 12th and 17th Articles of the Rules and Regulations for preventing Collisions (13 Stat. 58), it was the duty of the Hazel Dell — the wind on her port side and being the overtaking vessel — to give way and to keep out of the way of the Victoria. 2. That whilst by the 18th Article the Victoria, under ordinary circumstances, was entitled to hold her course, she was bound by the 19th Article, from the special circumstances of the particular case, to depart from the rule in order to avoid the immediate danger. 3. That the evidence brought the case within the principles of The Maria Martin (12 Wall. 31), and the damages caused by the collision should be divided equally between the libellant and respondent. French v. The Victoria, Leg. Int., Sept. 11, 1874.
2. THE MISSOURI RIVER, near its upper part in the Territory of Dakotah, is within the admiralty jurisdiction of a United States court. Commings v. The Ida Stockdale, Pittsburg L. J., Sept. 9, 1874.
3. DUTY OF TUG during a storm considered. The Clematis, Chicago L. N., Sept. 12 1874.
4. COLLISION. — RINGING BELL INSTEAD OF SOUNDING FOG-HORN. – A steamer running at an undue rate of speed during a fog collided with a sailing vessel. The evidence showed that the latter was moving slowly, and that she was ringing a bell instead of sounding a fog-horn, as prescribed by law. Held, that, under the circumstances of the case, the failure of the sailing vessel to observe the rules must be regarded as a contributing cause and the fault adjudged to be mutual, with damages accordingly. The Pennsylvania, Leg. Gazette, Sept. 25, 1874.
5. SHIPPING ARTICLES. — SPECIFICATION OF PORTS. — Under the Merchant Shipping Act of England of 1873, the shipping articles need only specify the maximum duration of the engagement of a seaman, and the places or parts of the world to which it does not extend: Held, that a specification of the places to which the voyage or engagement might extend was an implied agreement that it was not to extend to any other, and therefore a sufficient compliance with the act. The Hermine, Chicago L. N., Sept. 5, 1874.
6. SUIT BY FOREIGN SEAMEN. — JURISDICTION. — A court of admiralty will not decline jurisdiction of a suit by foreign seamen against a foreign vessel to recover wages, where it appears that the voyage has been completed or broken up, or the seamen have been discharged by the wrongful act of the master. Ib.
7. DESERTION DEFINED. — A seaman is bound to stay by the vessel according to his agreement, whether the master takes any means to compel him to do so or not; and therefore where seamen leave a vessel before the completion of the voyage, although with the knowledge of the master, and upon his promise that they shall not be arrested therefor, but without his consent, they are guilty of desertion. Ib.
8. INJURY TO SEAMAN BY NEGLIGENCE OF MASTER. — To render an employer liable for injury to one in his employ, through the negligence of another person also in his employ, it must be shown that the latter was not merely a fellow-workman, but was placed in a position of such authority as fairly to represent the employer himself. The captain of a merchant ship under his control and management is not a mere fellow-work
man of the seamen on board, bound to obey him, but is such an agent or representative of the owner of the vessel, that the latter, by whom he has been appointed, will be liable for an injury to a seaman, sustained by him through the captain's negligence during the voyage, while the seaman is acting in obedience to an order given by the captain. Ramsay v. Quinn, Cent. L. J., Sept. 24, 1874.
See PLEADING AND PRACTICE, 4.
BANKRUPTCY. 1. PRACTICE UNDER ACT OF 1874. — VERIFICATION OF PETITION. — AGENT. — AMENDMENT. — Under section 12 of the Act of '74 where there are less than five signers to a petition in involuntary bankruptcy, and the petition is verified by an agent, the residences of principals need not be stated.
But where there are several signers who do not stand in the same right, the verifications must be severally sufficient. Thus a verification in the following words : “ I, Samuel Heavenrich, being duly sworn says, that he is one of the firm of Heavenrich Bros., of Detroit, Michigan, and makes this affidavit in their behalf; that he is also agent for L. Morris, Dessar, Stern & Co., and Meyer & Schwab, and has full power and authority from them to make this petition — do hereby make solemn oath that the statements contained in the foregoing petition, by me subscribed, are true of my own knowledge, so far as the same are stated on my own knowledge, and that those matters which are stated therein on information and belief, are true according to the best of my knowledge, information, and belief,” is insufficient.
But as the jurisdiction of the court does not depend upon the verification, the insufficiency may be cured by amendment. In re Simmons, Cent. L. J., Sept. 3, 1874.
2. BILL IN EQUITY BY ASSIGNEE OF BANKRUPT CORPORATION TO COLLECT ASSESSMENTS UPON STOCK. — The assignee of an insolvent corporation cannot maintain a bill in equity against the stockholders to collect assessments upon unpaid stock. The proper course would seem to be for the court to order an assessment to be collected by the assignee. Myers, Assignee, v. Seeley, Cent. L. J., Sept. 10, 1874.
3. “ COMMENCEMENT OF PROCEEDINGS ” DEFINED to mean the filing of a petition sustained by proofs of the alleged act of bankruptcy, and of the claim of the petitioning creditor. In re Rogers, Cent. L. J., Sept. 17, 1874.
4. PARTNERSHIP. — Parties holding themselves out to the world as partners may be adjudged bankrupts as such. Richardson v. McFarland, Am. Law Rec., Sept. 1874.
neT OF Procept. 10, 1874" by the
CORPORATION. DEED OF. – A corporation cannot execute a deed otherwise than under its seal ; nor can it make a deed unless the directors meet as a board and so determine. The only evidence of such meeting and action is the record kept by the secretary. In re St. Helen's Mill Co., Pac. Law Rep., Sept. 8, 1874.
See BANKRUPTCY, 2; PLEADING AND PRACTICE, 2.
CRIMINAL LAW. SALE OF INTOXICATING LIQUORS. — INSTRUCTIONS OF COURT. - The court instructed the jury as follows: “If you find that the defendants sold any of the intoxicating liquors named in the instrument, at the times and places named therein, notwithstanding they may have put into it roots and tinctures, unless it changed the nature or character of the liquors, so that it was no longer whiskey or brandy, or whatever it may have been originally, at the time of the sale, it was a violation of law. If its distinctive character as an intoxicating liquor was so destroyed that it could not be used as a beverage, and it became in fact a medicine to be used for diseases, and of such a character that it could not, in reason, be styled or used as an intoxicating drink, its sale was not a violation of law.” Held, in the appellate court, to be a correct statement of the law. State v. Laffer, West. Jur., Sept. 1874.
See EVIDENCE, 4, 5; HUSBAND AND WIFE, 3.
CUSTOMS. UNDER-VALUATION. — FALSE INVOICE. — Held, that it was error to refuse to admit the invoice of a previous shipment at a higher valuation as evidence that the claimant had guilty knowledge of the under-valuation in this case, and also in the instruction given to the jury that they could not return a verdict for the United States even if they found that the invoice value of the merchandise, as given in the invoice presented to the collector, did not conform to the value of such goods in the actual markets of the country of production, unless they should also find that such discrepancy was not the result of honest error on the part of the owner, consignee, or agent in respect to matters of law or fact, but that it was made knowingly and with design to evade the payment of the duty which he knew was legally chargeable on said merchandise. This instruction to the jury is directly opposed to the rule adopted by the unanimous decision of the supreme court. United States v. 146,650 Clapboards, Int. Rev. Rec., September 28, 1874.
DAMAGES. WHERE LAND IS CONDEMNED FOR PUBLIC PURPOSE. — The theory of the statute of California is that the land-owner shall receive a fair, just .compensation for the damage he suffers; and if that portion of his tract which is not taken will be enhanced in value, his damages will be diminished to the extent of the enhancement; and hence the statute contem
Digest OF CASES.
plates that by deducting this benefit from the damages, the sum which remains will constitute a “just compensation "in the sense of the constitution. Cal. Pac. R. R. Co. v. Armstrong, Cent. L. J., Sept. 10, 1874.
See EMINENT DOMAIN.
EMINENT DOMAIN. WHERE PROPERTY IS CONDEMNED FOR RAILROAD PURPOSES AFTER THE TRACK HAS BEEN LAID, the track is not to be regarded as a part of the realty to be estimated in computing the damages. The law contemplates “ just compensation,” no less and no more. Cal. Pac. R. R. Co. V. Armstrong, Cent. L. J., September 10, 1874.
ation, in computing is not to be reo PURPOSES AF
EVIDENCE. 1. PURCHASE OF BUSINESS AND PROMISE TO PAY DEBTS. — A purchased the business of B, assuming to pay his debts. C, a creditor of B, brought suit upon A's promise against A. Held, that it might be shown that at the time A made the purchase, B exhibited a list of his debts, on the strength of which the purchase and promise to pay B's debts were made, and that such list did not include C's debt. Torrent v. Campbell, Leg. Int., September 4, 1874.
2. WHERE A DEFENDANT CALLS A PLAINTIFF as a witness the examination may be conducted as if the witness was under cross-examination. Brubaker's Adm’rs v. Taylor, Leg. Int., September 25, 1874.
3. RECORDED DEED. BURNT RECORDS. - EFFECT OF RECORD. — An original deed, bearing certificate of having been duly recorded, is the highest class of evidence, and may be read whether the official record book be in existence or not.
Where a record of deeds is destroyed, the index book in which the deed is described, and its record in the proper book certified, is good evidence of the fact that a deed was recorded.
The notice which the due recording of a deed gives to all the world is not extinguished or lost by the destruction of the record book ; nor can one who obtains adverse title be deemed an innocent purchaser. Alvis v. Morrison, Chicago, L. N., September 12, 1874.
4. FLIGHT IN CRIMINAL CASE. — Evidence of flight is not admissible as a badge of guilt; but it may be properly shown that there was a pursuit during which stolen property, not found upon the person of the accused when arrested, might have been thrown away. People v. Collins, Pac. Law Rep., September 1, 1874.
5. PARDON DEFINED. — The record of the conviction and sentence of a witness having been introduced, he submitted a document signed by the governor purporting to have been executed in pursuance of law, by which the release of witness was ordered upon a particular day; and it was further ordered that upon the same day he be " restored to all the rights and privileges of citizenship to which he was entitled before the aforesaid con