Vol. I.] DIGEST OF CASES. [No. 9. SPECIAL LAW. See CONSTITUTIONAL LAW. PLAT AND MONUMENT. SURVEY. Held, that if there be a discrepancy between the location of a line as shown by a plat and monument, the latter should prevail. Lull v. City of Chicago, Chicago L. N., July 4, 1874. TRADE-MARK. GEOGRAPHICAL NAME. -The name of a town or borough cannot be used as a trade-mark by one of its residents to the exclusion of other residents of such town or borough, even if the name was adopted prior to the act of incorporation. The adoption of the name as a geographical designation gives to it a public character which makes it the common property of the public for all legitimate purposes. The authorities do not conflict with this doctrine, but on the contrary support it. Glendon Iron Co. v. Uhler, Leg. Gazette, July 3, 1874; Leg. Chron., July 11, 1874. TRADE NAME. EQUITY WILL NOT PROTECT PRIVATE PARTIES IN THE USE OF A FIRM NAME IMPLYING THAT THERE IS A CORPORATION. A and B, the plaintiffs, were engaged in business, without an act of incorporation of any kind, under the name and style of the "Galaxy Publishing Company.' Defendants adopted the same name. Held, that plaintiffs having been guilty of a fraud upon the public in adopting a name that was calculated to mislead, could have no standing in a court of equity. McNair v. Cleave, Leg. Int., July 3, 1874. TRESPASS. See PLEADING AND PRACTICE, 1, USURY. - MUNICIPAL BONDS. RETROACTIVE STATUTE. CONSTITUTIONAL LAW. In the year 1863 the town of Danville, Virginia, executed certain certificates of indebtedness, a part of which passed into plaintiffs' hands. In 1873 a law was enacted by the State of Virginia, one section of which was as follows: "No corporation shall hereafter interpose the defence of usury in any action, nor shall any bond, note, debt, or contract of such corporation be set aside, impaired, or adjudged invalid by reason of anything contained in the laws prohibiting usury." Held, that said section was retroactive in its character, and embraced all contracts of corporations whether entered into before or after its adoption. That although retroactive it was not an infraction of the Constitution of the United States, it being well settled, that although a statute may take away vested rights, it is not, for that reason merely, to be treated as repugnant to any provision of the federal organic law. Nor was it invalid as impairing the obligation of a contract; nor in contravention of the constitution of the State of Virginia. Vol. I.] DIGEST OF CASES. [No. 9. That usury laws are founded upon considerations of public policy, and are to be regarded as purely remedial and subject to the modification and control of the legislative department, even as applied to transactions which took place prior to their being in force. Therefore in an action by the plaintiff against the town of Danville, the town could not plead usury. Danville v. Pace, Albany L. J., July 25, 1874. WILL. 1. INTENTION. MISTAKE AS TO VALUE BY TESTATOR. Where it appeared that the testator was mistaken as to the value of his estate, and his intention was clearly to provide for a daughter, the allowance to such daughter was increased. Snyder's App., Leg. Gazette, May 15, 1874. - 2. CONSTRUCTION.-LIFE ESTATE. A will contained the following: "Item, I give and bequeath to my beloved wife Jane one third of all my personal property, and one third part of all the income, rents, and use of my real estate." "İtem, I do give and bequeath unto my son William all the residue and remainder of my estate, real or personal." Held, that the wife took a life estate. France's App., Leg. Gazette, May 29, 1874; Leg. Int., May 29, 1874. 3. CONSTRUCTION LIFE ESTATE. - A will contained the following: "I give and bequeath to my beloved wife, Nancy Sinclair, all my estate both real and personal; that is to say, all my lands, cattle, horses, farming utensils, household and kitchen furniture, with everything that I possess ; to have and to hold during her life, and to do with as she sees proper before her death." Held, that the devisee had power to dispose of the real estate of testator. Brant v. Va. Coal & Iron Co., Chicago L. N., May 30, 1874. 4. UNHARVESTED CROPS go to the devisee of the land and not to the executor. As against the heirs at law they go to the executor, but as against the devisee they do not. Dennett v. Hopkinson, Am. Law Reg., June, 1874. HARVESTED CROPS in a barn pass by virtue of a bequest of "all the household furniture and other articles of personal property in and about the buildings." Ib. 5. FUND FROM POLICY OF INSURANCE. -INFERENCES CONCERNING an intention on the part of a testator, by his will, to dispose of the fund arising from an insurance policy upon his life, will not be inferred from the fact that his bequests were ultimately found to exceed the whole amount of his estate exclusive of this fund; nor from the fact that he designated a person as the legatee of the residue of his property of every description whatsoever. The testator's intention to change the description which the law gives to this very peculiar species of property is not to be inferred from general provisions in his will, the fulfilment of which might require the use of such money, but must be explicitly declared. Hathaway v. Sherman, Ins. L. J., June, 1874. Vol. I.] IN RE ANGELL. [No. 9. DISTRICT COURT U. S.- EASTERN DISTRICT OF MICHIGAN. [JULY, 1874.] ADJUDICATED CASES NOT AFFECTED BY ACT OF JUNE 22, 1874. IN RE ANGELL. The retroactive provision of section 12 of the Bankruptcy Act of June 22, 1874, does not apply to cases in which adjudications had passed before the approval of the act. On the motion of the bankrupt to dismiss the proceedings unless the petitioning creditor shall procure other creditors to join with him in the petition for adjudication, so that the petitioning creditors shall constitute at least one fourth in number of all the creditors, and whose aggregate debts shall amount to at least one third of the debts provable, &c., as required by the act of Congress approved June 22d, 1874, entitled "An Act to amend and supplement an act entitled An Act to establish a uniform system of bankruptcy," &c. The case is one of compulsory or involuntary bankruptcy. The petition for adjudication was filed on the 28th day of May, 1874, by a single creditor; and, having been filed before the recent act, it of course contains no allegation as to number and amount of creditors and debts; and it is conceded that the number and amount is less than one fourth and one third, as required in those respects by said act. The debtor failed to appear, and on the 8th day of June, 1874, the return day of the order to show cause, he was duly adjudicated a bankrupt; and the usual warrant was at once issued and was executed. All of which proceedings took place, as will be observed, after the 1st day of December, 1873, and before the recent act. No objection whatever is taken, nor does any exist, to the sufficiency of the petition, to the jurisdiction of the court, or to the regularity of the proceedings, as the law then was; and it is fully conceded that but for the said act of June 22, 1874, the proceedings and adjudication are unimpeachable. The provisions of the act upon which this motion is founded are contained in section thirty-nine of the original act, as amended and reënacted, being section twelve of the amendatory act, and they are as follows (the portions here involved being in italics): "Section 39. That any person residing and owing debts as aforesaid, who, after the passage of this act, shall (commit certain specific acts), "shall be deemed to have committed an act of bankruptcy, and, subject to the conditions hereinafter prescribed, shall be adjudged a bankrupt on the petition of one or more of his creditors, who shall constitute one fourth thereof, at least, in number, and the aggregate of whose debts provable under this act amounts to at least one third of the debts so provable: Provided, that such petition is brought within six months after such act of bankruptcy shall have been committed. And the provisions of this section shall apply to all cases of compulsory or involuntary bankruptcy, Vol. I.] IN RE ANGELL. [No. 9. commenced since the first day of December, 1873, and prior to the passage of this act, as well as to those commenced hereafter," &c. LONGYEAR, J. That the provisions of the recent act requiring one fourth in number, and one third in amount, of the creditors, to join in an involuntary petition for adjudication of bankruptcy were intended to apply, and can and must be applied to all cases commenced between December 1, 1873, and the passage of that act, in which there has been no adjudication, I entertain no doubt; and it has been so held by the district court for the Northern District of Illinois; In re Scammon, 1 Am. L. T. R., N. S; but the question here goes beyond that. It is whether those provisions were intended to apply, and can be applied, to cases so commenced, which had passed into judgment before the passage of the act. The act cannot be given the application and effect contended for, because it involves the vacating and annulling the judgment of the court, and granting a new trial. No rule of constitutional law is better settled than that in a constitutional government, with a division of powers like that of the United States, no legislative enactment can have the effect and operation to annul the judgment of a court already rendered, or grant a new trial, especially as it respects adjudications upon the private rights of parties. "When they have passed into judgment," says Justice Nelson, in State v. Wheeling Bridge Company, cited below, "the right becomes absolute, and it is the duty of the court to enforce it." Cooley's Const. Lim. 93 and 95 and cases cited; The State v. Wheeling, &c. Bridge Co. 18 How. 421, 431, and see also the dissenting opinions of Justices McLean, Grier, and Wayne, at pages 437, 449; Mason v. White, decided by the supreme court of Michigan at the January term of 1874, not yet reported. Courts will not presume that Congress intended to exceed its powers, or in any manner to invade the domain of the judiciary, unless such intent is clearly expressed by the words used, or by necessary implication. The words used in a statute may be broad enough, and they probably are in the statute under consideration, to admit of such a construction; but the courts will in no case give them a construction that involves the exercise of an excess of power, where, by a more limited application of them, such exercise of power is not involved. In the present instance the enactment in question is given full effect, and in my opinion all the effect Congress intended it should have, by applying and limiting it to cases still pending, and undisposed of by adjudication. It is abundantly evident that Congress did not intend these provisions to apply to cases already adjudicated, for the following reasons: 1. It was not in their power to do so, as already shown. 2. They did not so expressly enact. 3. The provisions can have full and consistent effect without giving them such application. 4. They made no provision for the saving of rights accrued or acts done under adjudications in cases where the proceedings might, under the provisions in question, eventually fail and be dismissed. And this has still greater force from the further fact that they did make such saving provision in case of a discontinuance of proceedings as provided by section Vol. I.] NEW ACT AFFECTING COPYRIGHTS, ETC. [No. 9. 14. Other reasons will readily suggest themselves, but the foregoing I consider conclusive. I hold, therefore, that the provisions in question apply only to cases where the petition for adjudication is still pending, and not to cases in which adjudications had passed upon the petition before the approval of the act. It results that the motion must be denied. Ordered accordingly. THE NEW ACT AFFECTING COPYRIGHTS, ETC. AN ACT to amend the Law relating to Patents, Trade-marks, and Copyrights. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz.: "Entered according to act of Congress, in the year by A. B., in the office of the Librarian of Congress, at Washington; or, at his option, the word "Copyright," together with the year the copyright was entered, and the name of the party by whom it was taken out; thus: "Copyright, 18-, by A. B." 66 SEC. 2. That for recording and certifying any instrument of writing for the assignment of a copyright, the Librarian of Congress shall receive from the persons to whom the service is rendered one dollar; and for every copy of an assignment, one dollar; said fee to cover, in either case, a certificate of the record, under seal of the Librarian of Congress; and all fees so received shall be paid into the Treasury of the United States. SEC. 3. That in the construction of this act, the words " Engraving," cut," and "print" shall be applied only to pictorial illustrations or works connected with the fine arts; and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office. And the Commissioner of Patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print or label not a trade-mark, six dollars, which shall cover the expense of furnishing a copy of the record, under the seal of the Commissioner of Patents, to the party entering the same. SEC. 4. That all laws and parts of laws inconsistent with the foregoing provisions be and the same are hereby repealed. SEC. 5. That this act shall take effect on and after the first day of August, eighteen hundred and seventy-four. Approved, June 18, 1874. |