Page images
PDF
EPUB

official capacity sufficiently shows that the indorsement was made in behalf of the bank and if that is not sufficiently certain, the plaintiffs have the right now to affix the name of the corporation." In McIntyre v. Preston, 5 Gilm. 48, a note payable to a corporation was transferred by its authorized officer indorsing the same by his own name with his official designation and the indorsement was held to pass the title to the note. Maine Sup. Jud. Ct., July 21, 1881. Russell v. Folsom. Opinion by Appleton, C. J. (72 Me. 436.)

NATIONAL BANK-TAKING MORTGAGE TO SECURE DEBT WHEN NOT ULTRA VIRES MISTAKE IN DEED

USURY. (1) When several debts due to a National bank are consolidated into one, and a new note is given, the bank is not acting ultra vires in taking a mortgage on real estate to secure such note. It is competent for a National bank to purchase a note in favor of a third party, and thereby acquire incidentally a mortgage on land which had been given to secure it; and the claim so evidenced may be incorporated with other indebtedness and a new mortgage on real estate taken to secure the whole sum. Even if taking such security by the bank were ultra vires, the mortgage would not be void, but only an offense against the United States, of which the mortgagor could not avail himself to defeat his own deed. Bank v. Matthews, 98 U. S. 621; Bank v. Whiting, 103 id. 99. (2) Where, by the mistake or oversight of the makers of a deed, the same is incorrectly written, they have no equity to call upon the grantee to correct the mistake in the books of the register, as they have an ample remedy under the statute (Bat. Rev., ch. 35, § 26); and a promise by the grantee to make such correction at his own expense and trouble would be nudum pactum. Fulke v. Fulke, 7 Jones, 497; Hatchell v. Odom, 2 Dev. & Bat. 302. (3) Usurious interest previously received by a National bank in the course of renewals of a series of notes, terminating in one upon which suit is brought, cannot be pleaded by way of set-off or payment. The only remedy open to the party aggrieved is that prescribed by the act of Congress, a separate action for double the interest paid by him. Barnett v. Bank, 98 U. S. 555. North Carolina Sup. Ct., Oct. term, 1881. Oldham v. First National Bank of Wilmington. Opinion by Ruffin, J. (85 N. C. 240.)

SURETYSHIP-CREDITOR HOLDING MONEY OF PRINCIPAL DEBTOR ON DEPOSIT, NOT BOUND TO APPLY TO DEBT. — In an action against B. on a promissory note made by S. and signed by B., the defense set up was payment, under which B. offered to show by a bankbook that when the note became due S. had on deposit with plaintiff below, a bank, money subject to check sufficient to pay the note; that plaintiff was bound to apply such deposit to the payment of the note, and its failure to do so relieved B. as surety. Held, that the evidence was not admissible. The bank-book did not tend to support the plea. It merely showed the deposit of money by S. which was subject to his check. This, in the absence of any appropriation to the notes in suit, or direction to so appropriate it, was not payment. This was an equitable defense and under all the authorities was not admissible under the plea of payment. It is sufficient to refer to Updegraff v. Spring, 11 S. & R. 188; Hamilton v. Moore, 4 W. & S. 570; Coverly v. Fox, 1 Jones, 171; Holt v. Bodey, 6 Harris, 207. The plea of payment means common-law payment; actual payment. It need not be in money; it may be by the transfer of choses in action, or other property, but it must be something which is accepted as money. When payment is pleaded with leave to give the special matter in evidence, an equitable defense such as the one set up in this case may be introduced when the proper notice has been given. Such plea with notice operates substantially as a bill in equity, praying an injunction; admitting of any sug

gestion which shows, ex æquo et bono, the plaintiff ought not to recover; without notice, the door is closed upon every merely equitable consideration, which falls short of technical payment. Hawk v. Geddes, 16 S. & R. 28. Pennsylvania Sup. Ct., Oct. 24, 1881. Steiner v. Erie Dime Savings Bank. Opinion by Paxson, J.

[ocr errors]

CONTRACT BETWEEN CREDITOR AND PRINCIPAL.

- M., the holder of two notes upon which F. & Co were holden as principals, and H. (as he claimed) as surety executed, with other creditors of F. & Co., and delivered to the principals the following contract: We, the undersigned, creditors of Warren A. Farr & Co., of Boston, in the Commonwealth of Massachusetts, in consideration of one dollar and other good and sufficient considerations to us severally paid by said Warren A. Farr & Co., the receipt whereof is hereby acknowledged, do severally promise and agree with the said Warren A. Farr & Co., that we will receive in full satisfaction and discharge of our respective claims against them, the amount of sixty per cent thereof in the following manner, namely: Twenty-five per cent of said claims respectively, in thirty days from the date thereof, and the remainder in sixty days from the same date of this instrument. Witness our hands and seals, hereby severally adopting the seal set opposite the first signature hereto as the seal of each of us respectively, this thirty-first day of December, A. D. 1872." Held, that this was an executory contract; that it gave the principals no delay; that it was no bar to an instantaneous suit by M. upon the notes, and that until performed by F. & Co. M.'s debt remained unaffected thereby, and H., if a surety, was not thereby discharged. The authorities are in entire accord with this view of the case. In Clifton v. Litchfield, 106 Mass. 34, it was held that an executory contract, by way of compromise to discharge a disputed, unliquidated claim, by the giving of the debtor's promissory note, for a sum less than the amount actually due, was not a bar to a suit upon the original demand, although the note has been tendered the creditor, if it has not been accepted. In Blake v. Blake, 110 Mass. 202, the agreement was under seal. "The agreement," observes Wells, J., "to accept a part in satisfaction of the whole, so long as it remains executory, will not operate either as payment, satisfaction or discharge." In Cushing v. Wyman, 44 Me. 121, the question here presented was fully examined and considered, and it was then held that an executory agreement constituted no bar to a suit. Maine Sup. Jud. Ct., Aug. 3, 1881. Miller v. Hatch. Opinion by Appleton, C. J. (72 Me. 481.)

VAGE.

RECENT ENGLISH DECISIONS.

[ocr errors]

MARITIME LAW When a pilot has assisted in navigating a vessel from a dangerous situation to a safe anchorage, the test, whether he is entitled to be remunerated for salvage services is not on the one hand whether the vessel was at the time of succor in distress, or on the other hand whether she was then damaged; but the test is whether the risk attending the service to the vessel was such that the pilot could not be reasonably expected to perform them for the ordinary pilot's fees, or even for extraordinary pilotage reward. A vessel was, during a heavy storm, being driven to leeward toward dangerous sands; her captain was ignorant of the locality, and her loss appeared almost inevitable; some pilots seeing her danger put off to sea at the peril of their lives in order to assist her; they were unable to board her by reason of the height of the sea; but by preceding her and signalling to her, they guided her to a safe anchorage. The vessel has sustained no damage. Held, that the pilots were enti

-WHEN PILOT ENTITLED TO SAL

Opinion

tled to be remunerated for salvage services. Ct. of Appeal, June 20, 1881. Akerblom v. Price. by Brett, L. J., L. R., 7 Q. B. D.

REAL ESTATE-MINE- INJURY TO SURFACE OF THE LAND. - A clause in a mining lease that the lessee may work the mines "in the usual and most approved way in which the same is performed in other works of the like kind in the country," refers simply to the mode of carrying on the underground works for mining purposes; but does not suppose a custom to work the mines so as to injure or interfere with the rights of other people. Nor did the words that the mining lessee should have liberty to enter upon the land and carry away the minerals, and to erect buildings, and "do and execute all such other acts, works and things upon, in or under, or above the said premises, as shall be necessary or convenient for working and carrying away the same," making compensation, etc., enlarge the power so to deal with the mines as to let down the surface. Authorities referred to, Hext v. Gill, L. R., 7 Ch. App. 699; Taylor v. Shafto, 8 B. & S. 228. Lord Blackburn: In common right the person who owns the surface has a right to have it properly supported below by minerals. A court of law has to look at the documents to see whether the parties have agreed upon something different from the common right. House of Lords, May 6, 1881. Davis v. Treharne. Opinions by Lord Ch. Selborne and Lords Blackburn and Watson, L. R., 6 App. Cas. 460.

INSURANCE LAW.

Per

FIRE POLICY- CANCELLATION OF POLICY - REBATE PREMIUM MUST BE PAID TO EFFECT CANCELLATION

— WAIVER. — T., an illiterate woman, held a fire policy upon her house in the H. insurance company. By its terms the company had the right to cancel the policy at any time by giving notice to that effect, and returning to her a ratable proportion of the premium for the unexpired term of the policy. The company gave notice that it wished to cancel the policy, and she met its agent and signed a cancellation of the policy at his request, before he said any thing about refunding money to her, and gave up her policy. He did not pay her any money, but gave her a due bill or certificate of indebtedness of the company for the amount due her, as a return premium, and explained to her in regard to its payment, and she made no reply. Before the due bill was paid, and thirteen days after it was given, the insured property was destroyed by fire. In an action on the policy the agent testified to these facts, and said that he was to pay the money when he received it from the company. The length of time required to go from the place where the agent did business to the company's place of business, was five hours. Held, that it was for the jury to determine whether H. (who was dead at the time of the trial) accepted the due bill as payment or not. If she did not, the policy was in force at the time of the loss. A clear distinction exists between taking it as a payment or as an admission of indebtedness. To extinguish the liability of the company for the insurance, actual payment of the sum to be refunded must be made. Hathorn v. Germania Ins. Co., 55 Barb. 28; Van Valkenberg v. Lennox Fire Ins. Co., 51 N. Y. 465; Etna Ins. Co. v. Maguire, 51 Ill. 242; Holden v. Putnam Fire Ins. Co., 46 N. Y. 1. Pennsylvania Sup. Ct., May 2, 1881. Home Insurance Co. v. Tighe. Opinion by Mercur, J.

[blocks in formation]

was before; and a charge based on that hypothesis was not error. (2) If the assured did not know the value of property on which he desired insurance, but bona fide stated such value on information, and so informed the insurer or its agent, the falsity of the information would not avoid the policy. (3) An absolute refusal to pay, on the part of an insurer, waives preliminary proofs. A refusal by an insurer to settle with the insured, or to fix the amount of liability, if any, during the pendency of certain garnishments, would waive proofs of loss during that time. Georgia Sup. Ct., Oct. 18, 1881. Merchants and Mechanics Insurance Co. v. Vining. Opinion by Crawford, J.

OMISSION TO STATE INCUMBRANCE -VACANCY OF PREMISES AGENCY KNOWLEDGE OF AGENT EXTRA RISK ASSIGNMENT OF INSURANCE CLAIM AFTER LOSS

[ocr errors]

CHANGE IN POSSESSION.- (1) A fire insurance policy upon premises in Wisconsin, declared that it should be invalidated by any omission to make known a material fact respecting its condition, situation, value or occupancy of the property. The assured was not asked, by the printed form of application or otherwise, whether there were incumbrances on the property. Held, that the contract was not invalidated by his mere omission to volunteer a statement of the fact that there was a lien on the property, to a large amount, for taxes; nor by his omission to disclose that he had entered into an oral executory contract to lease the property. (2) By its terms the policy was to become void if the insured premises should become vacant or unoccupied. The property consisted of distillery buildings and machinery, presumbly available for no other use; but the policy prohibited that use during its term, (three months), while expressly covering a carpenter's risk. The carpenter work contemplated was finished before the end of the term, and the building then remained unoccupied until destroyed. Held, that under the circumstances the insurer will not be heard to allege a forfeiture because the premises were unoccupied. (3) The insured applied to W., an insurance agent, to insure his property. W. placed the risk, not in any company represented by him, but in companies, including the defendant, represented by other agents; and there was no communication on the subject between the insured and such other agents. Held, that W. must be regarded as defendant's agent in respect to this insurance, under the Wisconsin statute, (R. S., § 1977); and his knowlege that the premises were unoccupied at the time of the insurance binds the defendant, and operates as a waiver of the condition as to occupancy. (4) The policy contained this clause: "Carpenter's risk granted during the term of this policy, and it is understood and agreed, and this policy is upon the express condition, that the property shall not be operated as a distillery during the term of this insurance, it being intended by this policy to cover carpenter's risk only." Held, that the word "only" must be construed as excluding merely the other extraordinary risk named (viz., running the property as a distillery), and not as excluding the general risk common to all property; and the assured may recover for a loss accruing after the occupation for carpenter work ceased. (5) A condition in an insurance policy, purporting to invalidate the contract for an assignment of the policy, made after the insurance money becomes due, would be void, as inconsistent with the covenant of indemnity, and as contrary to public policy. See Bradley v. Peixoto, 3 Ves. Jr. 324; Gart v. Insurance Co., 25 Barb. 189; Courtney v. Insurance Co., 28 id. 116; West Brancy Ins. Co. v. Helfenstein, 40 Penn. St. 149. (6) By its terms, the policy was to become void if any change should take place in the title or possession of the property by judicial decree, legal process or voluntary conveyance. The assured had entered into an oral executory contract to lease the property,

exceptions to be heard at General Term, in the first instance. That court being composed of Judges Beckwith aud Smith, before whom the cause was argued, Judge Smith was for affirmance, Judge Beckwith dis

and in the meantime, during the term of insurance, the intended lessee entered into actual possession, under a parol license from the assured, for the single purpose of making repairs. Held, that there was no change of possession within the meaning of said condi-sented, and it is claimed that by section 281 of the tion. Wisconsin Sup. Ct., Oct. 18, 1881. Alkan v. New Hampshire Insurance Co. Opinion by Lyon, J. NEW YORK COURT OF APPEALS DECISIONS.

[blocks in formation]
[ocr errors]

Ap

Order reversed and judgment on the verdict affirmed with costs - Neil v. Thorn. Judgment affirmed with costs Christal v. Kelly. Order reversed and motion to correct computation granted, with costs Erwin v. The Neversink Steamboat Co. · Order affirmed, with costs - In the Matter of the Application of the New York & Lockport & Western Railroad Co. v. The New York, Lake Erie & Western Railroad Co.; Hall v. The United States Reflector Co. Order appealed from by plaintiff, reversed, and order appealed from by defendants, affirmed, with costs of one appeal to be paid to plaintiff — Randall v. Carpenter. peal dismissed with costs - Ferris v. Hard. -Appeal dismissed without costs-The Commercial National Bank of Oskosh v. The Niagara Fire Insurance Co. -Motions to put causes on calendar denied The Nassau Gas Light Co. v. The City of Brooklyn; King v. Mackellar; The People ex rel. The Eastern Transportation Line v. The Commissioners of Taxes; Same v. The Board of Aldermen of New York. - Motion to strike causes from preferred calendar denied Ellsworth v. The Etna Insurance Co.; Platz v. The City of Cohoes. - Motion to put cause on calendar granted - In re Lockport and Buffalo Railroad Company. - Motion for corrected returng ranted without costs Scott v. Morgan. · Motion for re-argument denied with $10 costs-Hopkins v. Lane.

CORRESPONDENCE.

REFEREE'S LIEN ON REPORT.

Editor of the Albany Law Journal:

I would ask through your valuable journal whether section 1019 of the Code of Civil Procedure is to be construed as meaning that a referee can hold his report until his demand therefor is paid, he demanding more than legal fees, and sue for and recover the legal fees, after a notice required to be given by the above section has been served, after the expiration of the sixty days and before the report is filed or delivered? I ask it because the question is not settled and the Superior Court of Buffalo has refused to allow the question to go to the Court of Appeals, the amount involved being less than $500. The case is as follows: One W., an attorney, was appointed referee in a suit commenced in the Superior Court of Buffalo by Gieb v. Topping, reported in 83 N. Y. 46. The case was tried before the referee and submitted December 30, and on January 6, following, the referee informed the attorneys for both parties, that the report was ready and that he had found for the plaintiff $256.92; that he had spent fortyfive days in hearing the evidence and making up his report, and demanded $260 as his fees. Plaintiff's counsel refused to pay it (no agreement as to fees having been made). On March 2, following (sixty days having elapsed), defendant's attorney served a notice ending the reference; notice of that fact was given to the referee. He subsequently had the fees taxed by the clerk, who allowed the referee $135. The referee thereupon sued the plaintiff for these fees (still retaining his report, and the cause having been noticed and retried before a jury). The referee's action came on before Judge Sheldon and a jury, but the judge relieved the jury and ordered judgment for plaintiff, the

Code of Civil Procedure the judgment was affirmed by one judge. Virtually deciding that a referee can charge an illegal fee, refuse to deliver or file his report, if not paid, so that judgment could not be entered if the illegal fee is not paid; and yet the referee may sue and recover the fees allowed by statute, ignoring section 1019. If this is the law, should not this section be stricken out? Again, can one judge at a General Term of a Superior Court, composed of three judges, affirm a judgment when sent there by the trial judge (one of the three) in the first instance, when one of the other two judges dissents?

Deeming these grave questions, affecting both lawyers and suitors, and inasmuch as some of the judges of the Superior Court of Buffalo have seen fit to restrict the question to their own court, and deprive us of the benefit of the opinion of the Court of Appeals, we seek light from this source.

The court, in 83 N. Y. 46, hints at the law in the case, but it was not then definitely decided, and hence the injustice in not allowing the case to go to the court of last resort. Yours, respectfully,

THE

FREDERICK R. MARCH.

NOTES.

THE American Law Review for March contains the following leading articles: Some features of maritime liens, by Frank Goodwin; Objections to grand jurors, by Edwin G. Merriam. The American Law Register for March contains the following cases in full: Davis v. Smith (Mo.), on married woman's personal liability on her contract, with note by Henry Wade Rogers; Vanhorn v. Gilbough (Penn.), on stock exchange usages, with note by Francis A. Lewis, Jr.; O'Connor v. City of Memphis (Tenn.), on effect on municipal debts of repeal of city charter and incorporation under a new charter, with note by H. H. Ingersoll; State v. Smith (Ind.), on “unlawfully" in indictment, with note by W. W. Thornton. The Western Jurist for February contains a leading article by Judge Thompson, on Place of making corporate contracts and doiug corporate acts.

Errata. The case of James v. Campbell, ante, 133, was reversed in the Supreme Court, instead of "affirmed." For "Kentuckians," ante p. 142, read North Carolinians.-A lawyer in Cleveland has been disbarred for sheep stealing. He probably merely wanted to rebind his library. The plan, referred to by a correspondent, of hauging up at the door of a lawyer's office a bag full of pocket almanacs-exhibiting, on the reverse, in a form convenient for intending clients, the name, whereabouts from day to day, and scale of charges of the practitioner within-is an ingenious combination worthy of the most enterprising seller of fancy goods. The contrivance of a pocket calendar as a make-weight to an advertisement prevents the recipient, if he be a thrifty man, from immediately throwing away the document, and by good fortune, he may even be induced to keep the almanac, and the advertisement with it, in his purse for the whole year. "Please take one," is the insinuating plea set up in a chemist's shop over a packet recommending the virtues of a panacea. The use of a bag into which clients may dip and draw out luck is, we believe, entirely original. At the bottom of the bag, as in Pandora's box, thore is, no doubt, hope; but youth and hope are not sufficient excuses for degrading a profession into a trade.-London Law Journal.

The Albany Law Journal.

ALBANY, MARCH 18, 1882.

CURRENT TOPICS.

the army, with forfeiture of pay, and to eight years of hard labor in the Albany penitentiary. This is severe, but none too severe. Doubtless the man expected fame and reward for trying to kill the president's assassin. But his act was if possible even more reprehensible than Guiteau's. He tried to murder his defenseless prisoner, whom he was ap

N connection with Prof. Davies' article on Con- pointed and had impliedly promised to protect as

IN connection with Prof. Davies' article on con

called to Ross v. State, 10 Tex. Ct. App. 455, holding that one may justify resistance to an unlawful arrest of his brother, opposing force to force, to any necessary extent, even to killing. The court say: "As to the right of Alonzo Ross to act in the protection of the life, liberty and property of his brother William, there can be no question." The question was more carefully examined in Alfred v. State, &- id. 545, where the court, referring to Tooley's case, 2 Ld. Raym. 1296, holding that killing in resistance to unlawful arrest is manslaughter, say that the "case has received much adverse criticism, notably from Foster, in his Discourses; but these criticisms relate chiefly to the power of interference by entire strangers in behalf of a prisoner already in confinement, and concede the lawfulness of such interference by a fellow-servant, friend, or brother of the prisoner incarcerated." It must be noted however that the Texas Criminal Code provides that resistance may be made either by the person about to be injured, or by some person in his behalf.”

It seems that a "brilliant" member of the Canada Legislature having recently been denied admission to the bar without pursuing the usual course of study, the Legislature have taken measures to avenge the slight, and as the Legal News "have says, resolved to make the way clear for the future to all men alike, whether they have been engaged in making laws or studying them." The News further says: "The three years spent in a law office is very apt to beget habits of laziness, because the time is so much longer than is needed to learn what is now required upon the examinations. On the other hand, a man who could pass the most severe examination after a short time of study, might be entirely without the experience which is needed and only comes with long office practice." It is our belief that some time spent in a practicing attorney's office is indispensable to fitness for admission. Much of course depends upon the office and the nearness to business to which the student is admitted. many city offices the student does not come in contact with business to the same extent as in most country offices. But the copying of papers, and the familiarizing with forms, and the practical contact with real business, in other ways, are very instructive to the student. The law school is not the best place to teach practice.

In

Sergeant Mason, who shot at Guiteau, whom he was set to guard, has been convicted by court-martial, and sentenced to dishonorable discharge from VOL. 25-No. 11.

well as to watch, and simply because as he says he was disgusted with the duty of guarding such a wretch. We are glad that the court have imposed the severest sentence they could, and we hope it will be carried out without any sentimentalizing or implied approval of lyr.ch law. It is fit that the government should teach men that the life of a prisoner in its hands is sacred, and only to be attempted or taken under the solemn and formal sanctions of the law. We hope too that the other rascal, who shot at Gaiteau in the street, will be duly punished. The greatest stigma on the administration of justice in this country is the fundamental disregard of the sacredness of human life, and the tacit approval of the adoption of private means of administering what would be justice if inflicted by the State. This practical willingness to farm out the administration of justice to private individuals, and this applause of men who are bold and reckless enough to take the law into their own hands, are indications of barbarism. The government itself must not only execute justice more certainly, promptly, and inexorably, but it must severely punish all who try to usurp these functions.

-

The "side-judge" has been overhauled in our Legislature. An attempt has been made in the senate to abolish him — unsuccessfully, thus far, we believe. As a general thing the side-judges do no hurt. Occasionally, where as in Brooklyn they overrule the presiding judge on the question of the term of imprisonment to be inflicted, they become dangerous and insufferable. Probably their advice is valuable in many cases. They are generally better acquainted with the antecedents, reputation and circumstances of the criminals brought before them, and with those of jurors, than the presiding judge can be, and their counsel and information as to questions influenced by these considerations may be quite useful. But perhaps it would be well to restrict their functions to the advisory, and to deprive them of their veto or overruling power. Even as to this we would not express a confident opinion with our present lights. The Legislature may justifiably use caution in abolishing so ancient an institution, even if its apparent uses are not very great, but they may very well inquire into the propriety of imposing some checks upon a power out of propor

tion to its usefulness.

Mr. Titus has introduced a bill in our State senate for the abolition of imprisonment in civil actions. This measure was some time ago suggested and advocated in this JOURNAL by Judge Arnoux,

Every lawyer knows that the remedy in question is of very little practical benefit. Every defendant against whom a civil judgment would be of any value, car procure bail, and indeed almost any man, however irresponsible, can do so. If the judgment is collectible, the arrest is of no value. If the judgment is not collectible, the remedy simply amounts to keeping the defendant on the jail limits until he can procure his discharge. So much for its practical use. In principle we believe it to be wrong and unequal. If a man commits a crime or a criminal fraud, of any moment to the public, let | him be punished by criminal proceedings on behalf of the public, but let us not even indirectly help creditors to get their pay by giving them the power to imprison their debtors in civil transactions. Some States have refused to extradite fugitives where it was evident that the pursuit was merely to enforce payment of a civil debt. In a word, nothing but crime justifies imprisonment, and crime should be punished by the public alone. It is difficult, for example, to see why a man should be put in prison for breach of a contract to marry a woman; but if this matter is criminal, constitute it a crime, and punish it publicly. This reductio ad absurdum is sufficient to test the theory. No one would argue that any of the causes of arrest and civil imprisonment, with very few exceptions, would theoretically justify a public prosecution. Let those of public importance be made indictable, if they are not so already, and abolish the rest. If fraud amounts to false pretenses, or hiding a chattel amounts to larceny, there is already a public remedy, and it is not politic or dignified for the State to let the citizen use its powers to collect his debt, and it is unjust to allow an imprisoment for a fraud or a hiding

that is not criminal.

this State is better qualified for this position, by attainments, experience, character, and judicial gifts, than Judge Blatchford.

In another column Mr. Field calls attention, in a very concise manner, to the necessity for general codification of the common law, and the history of the proposed Code now pending before our Legisla ture. The opponents of codification will no doubt be on hand as usual, trying to make the Legislature believe that law is something so "elastic," variable, and uncertain that it cannot all be written. Of course, every gentleman, who wants a bill passed on a particular subject, concedes that it is easy to write the law on that subject; and the Legislature, and the public who have been so long bewailing the uncertainty of law, will be pretty apt to believe that the only distinction between writing the law on one subject and on all subjects is one merely of industry and application. In fact, the law has all been written as much as it needs to be, for seventeen years, and no very serious objections have been raised to the manner of the writing, and the objections raised can easily be obviated. Let the Legislative committees bear in mind that the objections are really not so much to Mr. Field's proposed Code, as to any and all Codes, although this general skepticism is veiled under specific objections to this Code.

THE

NOTES OF CASES.

THE German Life Insurance Company of Lubeck had loaned to Count N., a resident of Austria, 875,700 florins, Austrian currency, for which he gave his note (or bond), dated at Vienna, April 7,

1872. We hope that the bill in ques

tion will be reported favorably and passed.

Now that Mr. Conkling and Mr. Edmunds have declined, and Chief Justice Andrews apparently does not desire it, the President has nominated Judge Blatchford for the vacancy on the Federal Supreme Court bench. This gentleman is one whom we early suggested as the fittest for the position, all things considered. Much as we admire Senator Edmunds, and conceding his eminent fitness, his appointment would have been a repetition of the grave error of the President's two immediate predecessors, and would have given to New England, Ohio, and New Jersey, with a population not much greater than that of New York, five Justices on this bench, and left New York without any. As Ohio has two, which is certainly one too many, and New England has one, which is certainly enough, and New Jersey has one, which some will think too many, and certainly is enough, it is fitting that New York should have one. We do not know what proportion of the Supreme Court business comes from this State, but we suppose a very large proportion, and it seems politic, if not absolutely essential, to have a representative on that bench acquainted with our laws and in sympathy with our interests. No citizen of

The note was secured by the hypothecation of an estate situated in Austria, and held by the count as a fidei commissum. The consent of the proper Austrian authorities was procured for such hypothecation. The money was paid the count in Berlin. To the note (or bond) there was appended a "plan for repayment," in which the count undertook to pay the interest and the principal in installments, in Austrian silver currency or in Prussian thalers, Austria and Prussia then having a monetary union, under whose stipulation silver was the basis of the currency, and the coins of each country had legal currency in the other, a florin being worth two-thirds of a thaler, and a thaler one and onehalf florins. The payments were made as stipulated, till the enactment of the new monetary laws of the German Empire, by which gold was made the basis of the currency and a "mark" the unit. The Lubeck insurance company then demanded that the payments should be made in the new currency on the gold basis. Gold being considerably dearer than silver, Count N. refused, and offered to pay in Austrian silver florins. The company brought suit against him, claiming that as the contract had become effective only by the payment of the money to Count N., which took place in Berlin, it was governed by the laws of the German Empire, although the negotiations were made and the bond

« PreviousContinue »