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. I.] NOTES OF NEW BOOKS. [No. 10. 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. & O. 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. 66 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. A third edition of this great work edited CIVIL LIBERTY AND SELF-GOVERNMENT. 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. They are prepared to supply the third volume of the new United States Digest; Story on Contracts, fifth edition; volumes XI. and XII. of Clark & Finnelly's Reports, and Law Reports, Cr. Cases Reserved, 1865 to 1872. MESSRS. ROBERT CLARKE & Co., Cincinnati, will have ready before the close of the present month the complete republication of Ohio and Ohio State Reports, in forty-three volumes. Price $107.50. During the period covered by these Reports a succession of eminent judges presided in the supreme court of Ohio, whose decisions are distinguished for ability, learning, and laborious research. The series occupy deservedly a high rank as useful repositories of sound law, and as such are valuable to every practitioner. THE FIRST VOLUME of Green's Criminal Law Reports, a series which promises to be very popular, is now ready, see advertisement upon another page. 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 ODICALS. ABBREVIATIONS. ..Albany Law Journal, Albany, N. Y., Central Law Journal, St. Louis, Mo., CHICAGO LEGAL NEWS Co. .Daily Register, New York, 303 BROADWAY, N. Y. SOL. FOSTER, JR. UNTIL AN ADMINISTRATOR HAS QUALIFIED and filed his bond, his appointment is in fieri. Prior v. Downey, Pac. Law Rep., Aug. 25, 1874. 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 colli Vol. I.] DIGEST OF CASES. [No. 11. 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 Vol. I.] DIGEST OF CASES. [No. 11. 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. AGENT. See PRINCIPAL AND AGENT. ATTACHMENT. See HUSBAND AND WIFE, 5; PLEADING AND PRACTICE, 7. -- 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. COLLECT ASSESSMENTS UPON STOCK. 2. BILL IN EQUITY BY ASSIGNEE OF BANKRUPT CORPORATION TO 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. |