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Vol. I.)


(No. 9.


[JULY, 1874.]


22, 1874.

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 80 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.)


(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 Ilinois ; 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, fc. 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.]



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 wbich 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.”

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


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.

Vol. I.)

NOTES OF New Books.

(No. 9.

[NOTE. The above act has been construed by the newspapers to be a measure of real importance and one conferring privileges which did not exist prior to its passage. An examination of its provisions will, however, disclose that it has practically no force whatever, other than to decrease the labors of the Librarian of Congress at the expense of the Commissioner of Patents.

Manufacturers are permitted to file their labels, &c., in the Patent Office upon paying a duty of six dollars, but they do not thereby acquire a right of action, nor is the label clothed with new attributes of any kind. Numerous parties may deposit the same design, and, whatever the facts as to ownership, each design will be duly “registered” without let or hindrance or even examination, except to determine whether or not it pertains to the fine arts and whether or not it is a trade-mark. In short, substantially the only privilege conferred is that of paying six dollars.

To pronounce the act an anomaly is to cloak its almost ridiculous character. It is neither more nor less than an imposition upon the public. It provides for the payment of a duty without the semblance of a return. It appeals effectively to a class long accustomed to a misconstruction of the copyright laws, and its only success will consist in fleecing them, along with others, of six dollars for every label, instead of fifty cents as hitherto.

A more arrant blunder is not to be found in the history of American legislation. EDITOR LAW TIMES.


Messrs. A. L. BANCROFT & Co. of San Francisco will publish during the present month a second edition of Freeman on Judgments, a work of great merit. Price $7.50.

FORTESCUE'S DE LAUDIBUS LEGUM ANGLIAE is announced as in press by Messrs. Robert Clarke & Co. The edition will contain a life of the author by Lord Clermont, one of his descendants, and will be attractively published.

Messrs. LITTLE, Brown & Co. propose to reprint the entire series of the Reports of Crown Cases Reserved, to be embraced in six volumes, and edited with notes and references by F. F. Heard, Esq.

THE SAME HOUSE have in preparation Cox's Criminal Law Cases, containing cases in criminal law determined in all the English and Irish courts from 1843 to the present time.

PHILLIPS'S MECHANICS' LIENS, and a new edition of Story on Agency, the eighth, published also by Messrs. L., B. & Co., are now ready. Price of either, $7.50.

THE STATUTES of the United States relating to Bankruptcy, with notes by Seymour D. Thompson, Esq., of the Central Law Journal, is offered by Messrs. Soule, Thomas & Wentworth of St. Louis. Price 75 cts.

MESSRS. BAKER, VOORAIS & Co. announce a number of acceptable works, among which are A Digest of the Law of Railways ; Decolyar on the Law of Guarantees, with notes and references to American cases ; Heard's Criminal Pleadings; Tyler's Mitford's Chancery Pleadings, seventh American edition ; Leading Cases on the Law of Damages ; Digest of the Law of Evidence at Nisi Prius, arranged for American Practice on the plan of Roscoe's popular English work, and Leading English Patent Cases, with references to American decisions.

MESSRS. WM. GOULD & Son, of Albany, have now ready the sixth volume of Moat's English Reports. Price $6.

THE THIRD VOLUME of American Railway Reports, Jas. Cockcroft & Co., of New York, publishers, has been issued. Price $6.

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NEW SERIES. - OCTOBER, 1874. - VOL. I., No. 10.




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.,

D. B. CANFIELD & Co. Cent. L. J......

. Central Law Journal, St. Louis, Mo.,


Chicago Legal News, Chicago, Ill.,


.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. .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. ADMIRALTY. MARITIME LIEN FOR REPAIRS AND SUPPLIES IN HOME AND FOREIGN PORTS. — Held: 1. That while in foreign ports the presumption of a necessity for relying upon the credit of the vessel for repairs arises from the necessity of repairs to enable the vessel to prosecute the voyage; in home ports the presumption of a necessity for relying upon the credit of the vessel does not exist.

2. That in a foreign port the master, as performing the duties of that officer, has authority to bind the vessel and her owners for the necessary expenses of the boat, but in the home port he has not that right. VOL. I.


Leg. Int.

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