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sality of the contract was reasonable. Now, in the J., in the case of The Leather Cloth Company v. Lorformer class of cases, those in which the universality sont, 21 L. T. Rep. (N. S.) 661; L. R., 9 Eq. 345, where he was unreasonable, the rule would operate nothing, be- undoubtedly came to the conclusion that no such rule cause that is already covered by the rule that the con- was laid down as has been insisted on before me. Havtract must be reasonable. It would therefore only ing referred to the cases ho says (p. 353): “I do not operate in cases in which the universality of the prohi. read the cases as having laid down that unrebuttable bition was reasonable, that is to say, it would only presumption which was insisted upon with so much operate where it ought not to operate. For the exist- power by Mr. Cohen. All the cases, when they come ence of such a rule I should require authơrity. In the to be examined, seem to establish this principle, that next place, this rule is pressed upon me as an artificial all restraints upon trade are bad as being in violation rule, an absolute rule, or what has been called by the of public policy, unless they are natural and vot unlate Wickens, V. C., a hard and fast line, or a hard reasonable for the protection of the parties in dealing and fast rule. Such a rule may always be evaded by a legally with some subject-matter of contract." I have, single exception. No exception to a rule of this de- therefore, upon the authorities, to choose between the scription can be said to be colorable, because you can two sets of cases; those which recognize and those only judge whether the exception be colorable or not which refuse to recoguize this supposed rule, and for by the principle of the rule; but if the rule, as sug- the reason I havo already mentioned, I have no hesitagested in this case, be really an arti ial one, without tion in saying that I adhere to those authorities which principle, there is no criterion to tell whether the eva- refuse to recognize this rule, and I consider that the sion is colorable or not. It appears to me for these cases in which an unlimited prohibition has been reasous that I ought not to hold such a rule to exist spoken of as void, relate only to cases where such a prounless it be clearly established. Then how stand the hibition has been unreasonable. It follows, therefore, authorities upon the point? There are undoubtedly from what I have said that in my judgment the plaintcases in which it has been said that the restraint must iffs have established their right upon the contract to not be universal. Such are the cases of Warde v. have an injunction, the terms of which I will mention Byrne, 5 M. & W. 548, and Hinde v. Gray, 1 M. & G. hereafter. It appears to me that no sufficient evidence 195, but looking at the judgments in those cases, and has been given to induce me to award substantial damreading them with a view to the subject-matter, they ages to the plaintiffs in this case, and I therefore appear to me to relate only to cases in which the uni- award them the sum of 1s., and no more. Before versality is unreasonable, and more than once in Warde parting with this part of the case it is desirable to refer v. Byrne the rule is so explained, although I candidly to two other points noticed by Mr. Cookson, because admit that you may select other passages in the judge they were fully argued by him, and as to one of them ment in which the court seems to say that the univer- the argument was renewed in the reply. He has sality is of itself an objection to the contract. But insisted that even if the contract of the letter of the undoubtedly Wickens, V. C., of whose judgments I 9tb October, 1869, was void by the law of England as can never speak without the highest respect, came to against public policy, yet inasmuch as that contract the conclusion that such an artificial rule existed, and was made in France it must be good here; and accordso he expressed himself in the case of Allsopp v. Wheat-ingly he has proved that the law of France knows no crost, 27 L. T. Rep. (N. S.) 372; L. Rep., 15 Eq. 59. He such principle as that by which unreasonable contracts says (p. 64) that “there has been a natural inclination in restraint of trade are held to be void in this country. of the courts to bring within reasonable limits the doc- It appears to me to be plain, on general principles, that trine as to these covenants laid down in the earlier cases, this court will vot enforce a contract against the pubbut it has generally been considered in the latter as well lic policy of this country, wherever it may be made. as in the earlier cases, that a covenant not to carry on It appears to me almost absurd to suppose that the a lawful trade, unlimited as to space, is on the face of courts should enforce here what they consider to be it void. This seems to have been treated as clear law against public policy, simply because the contract hapin Warde v. Byrne, 5 M. & W. 548, and in Hinde v. Gray, peus to have been made somewhere else. In the next 1 M. & G. 195, and in other cases; and the rule, if not place he urged that although the policy of this country obviously just, is at any rate simple, and very conve- promoted trade amongst its native subjects, there was no nient. No doubt in the case of The Leather Cloth Com- such policy in favor of the trade by foreign merchants, pany v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. Rep., 9 and the defendant, being a foreign merchant, he said Eq. 345, James, L. J. (then Vice-Chancellor), threw he was exempt from the leaning of the English law in some doubt on the existence of a hard and fast rule favor of trade. It appears to me that that view canwhich makes a covenant in restraint of trade invalid not be substantiated, and that an elementary point if unlimited in area." There are earlier cases than the may be met by a citation from an elementary book, one before James, V. C., which seem to me to be in- and I will, therefore, only refer to a passage in Mr. Jus. consistent with the existence of the supposed hard and tice Blackstone's Commentaries, in which he deals fast line. In Whittaker v. Howe, 3 Beav. 383, the case with the mode in which the Euglish law has regarded relating to attorneys, it was stipulated that the busi- trade by foreign merchants. He says (vol. 1, p. 230) : ness should not be carried on in any part of Great Brit- “ The law of England, as a commercial country, pays aiu for twenty years; and again in Jones v. Lees, 1 H. & very particular regard to foreign merchants in inN. 189, the covenant was against selling a particular ar- numerable instances;" and then he goes on to refer ticle anywhere in England without the invention of the to the decision of Magna Charta in favor of foreign plaiutiff applied to it, and the objection that the cove- merchants. I hold, therefore, that neither of those nant was unlimited as to space was taken. “It is ob- two arguments on the part of the plaintiffs can sucjected," said Bramwell, B., " that the restraint extends ceed, and I only refer to them because they have been to all England, but so does the privilege. The cases fully argued at the bar. I next approach the question with respect to the sale of a good-will do not apply, be- of the judgment obtained by the plaintiffs in the Tricause the trade which is the subject-matter of the sale bunal of Commerce at Epernay on the 6th Noveinber, is local, and therefore a prohibition against carryingit on 1878. That judgment, according to the evidence before beyond that locality would be useless." In other words me, was obtained without any notice to the defendant. the learned judge explains the inclination of the courts He knew nothing of the pendency of the proceedings against the universality of a prohibition applying only until they had matured into a judgment. It is not to cases where the subject-matter of the sale was itself shown before me that according to the law of France local. That is just the view I take of the earlier cases. the defendant has had any opportunity, or that there Still more important are the observations of James, L. is any power in him to set aside that judgment. The question was put to the French advocate who gave eri- way submitted; the result of which is that I hold that dence, and he seemed to know nothing of any such this judgment is not capable of being enforced in this provision in the law as seems to have been proved in country, and that the whole of the relief sought by the some other cases. Further than that, it has been shown plaintiffs in the present case in respect of that judgby him that this judgment is void, according to the ment fails. Having regard to the large extent to French law, if it was not executed within six months, which the plaintiffs have failed, I think that the reaor if the utmost efforts to execute it were not taken. sonable mode of dealing with the costs will be to award It has not been shown to me that such efforts have no costs, but to let each party bear his own costs. been taken, or that execution has been bad upon this There will therefore be judgment for the plaintiffs to judgment. That is the state of facts with regard to the extent of an injunction restraining the defendaut this judgment. Now arises the question of how far from carrying on busivess as an importer of chamthe defendant is bound by it, and the law upon this pagne for the period of ten years from the 1st March, point I think I may conveniently take from the case 1877, and from in any other manner acting in contraof Schibsby v. Westenholz, 24 L. T. Rep. (N. S.); L. vention of that contract, with one shilling damages Rep., 6 Q. B. 155, which has been so much cited and and no costs. And I dismiss the action so far as it discussed in the course of this case. In that case the seeks to enforce the judgment. court considered that the true principle on which foreign judgments are enforced by courts of this country,

UNITED STATES CIRCUIT AND DISTRICT and they say, referring to the case of Goddard v. Gray

COURT ABSTRACT,* (p. 159): “We think that, for the reasons there given, the true principle on which the judgments of foreign

JURISDICTION - OF SUITS tribunals are enforced in England is that stated by

TO WHICH NATIONAL Baron Parke in Russell v. Smyth, 9 M. & W. 810, 819,

BANKS ARE PARTIES. -- (1) The Federal courts have and again repeated by him in Williams v. Jones, 13 M.

jurisdiction over all suits by and against National & W. 628, 633, that the judgment of a court of compe

banks, irrespective of the subject-matter. U. S. R. S.,

$ 629; First Nat. Bank of Omaha v. County of Dougtent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which

las, 3 Dill. 298; Bank of Betbel v. Pahquioque Bank, judgment is given, which the courts in this country

14 Wall. 383–395; Kennedy v. Gibson et al., 8 Wall. 498; are bound to enforce; and consequently that any thing

Osborn v. United States Bank, 9 Wheat. 738. (2) Joinwhich negatives that duty, or forms a legal excuse for

ing merely nominal or personal parties has no effect not performing it, is a defense to the action." What

either to confer or exclude the jurisdiction; but trusare the circumstances which have been held to impose

tees, executors, and the like are not formal parties, upon the defendant the duty of obeying the decision

within the meaning of the rule, where in fact interof a foreign court? Having regard to this case, and to

ested in the litigation. Accordingly, where two or the subsequent case of Copin v. Adamson, 31 L. T.

three persons, claiming a certain fund which was in Rep. (N. S.) 242; L. Rep., 9 Eq. 345, they may, I think,

the custody of a National bank, brought their bill in be stated as these. The courts of this country con

equity against the bank and a third claimant, and the sider the defendant bound where the defendant is a

bank exhibited its cross-bill, praying that the parties subject of a country in which the foreign judgment might interplead, this was held to confer jurisdiction, has been obtained; where the defendant was resident

although but for such cross-bill the jurisdiction was in the country when the action began; where the de:

doubted. Browne v. Strode, 5 Crauch, 303; Wormley fendant in his character of plaintiff has selected the

v. Wormley, 8 Wheat. 421; Wood v. Davis, 18 How. forum in which he is afterward sued by the other

467; MoNutt v. Bland, 2 id. 9; Knapp v. Railroad Co., plaintiff; where the defendant has voluntarily ap

20 Wall. 117. Circ. Ct., Colorado, 1880. Foss v. First peared, and where he has contracted to submit himself

National Bank of Denver. Opinion by McCrary, J. to the forum in whicb the judgment was obtained; and MARITIME LAW – BOTTOMRY BOND-COLLISION possibly, if the case of Becquet v. M'Carthy, 2 B. & Ad. ORDER OF LIENS.— A claim for damages caused by a 951, be right, another condition must be added, where collision occurring during the voyage is entitled to the defendant has real estate within the jurisdiction preference over a bottomry loan made upon the same in respect of which the cause of action arose whilst he voyage, prior to the happening of such collision. In was within the jurisdiction. Now, none of these cases The Almi, 1 Week. R. 118, it is said: “The creditor in include the present case. In the present case the damage has no option, no caution to exercise; the contract was made between the plaintiffs, or one of creditor on mortgage or bottomry has. He may conthe plaintiffs, a French subject, and the defendant, a sider all possible risks, and give credit or not as he may Swiss subject, at the time the contract was made dom- think most advisable for his interest. He has an altericiled in Switzerlaud, but resident in England, he hav- native; the creditor in damage has not." The preforing been for some two years established as the English ence of a creditor in damage over a lender on botcorrespondent or representative of the plaintiffs' firm. tomry has been considered by some to rest upon the He made the contract during a short stay at Epernay, general rule of the admiralty, that maritime liens are on his return home from a visit to his mother in paid in the inverse order of their inception. The Switzerland. At the time of making the contract American, 6 Reporter, 277. But it seems that the there was no intention on his part, or so far as reason of the general rule fails when the demand comI can gather, on the part of the plaintiffs, that peting with a bottomry arises out of a collision, for the defendant should take up his residence in France, one cannot conceive it possible to say that a prior and it does not appear to me that either party con- lender on bottomry has derived any benefit from a templated the performance of tho contract in France, subsequent collision. The value of the lender's secualthough, the terms of it being universal, it might be rity cannot be enhanced by a subsequent collision, nor observed or broken anywhere. In that state of cir- could such a collision in any way tend to preserve the cumstances, can I find any thing which makes it rea- lender's security for him, but the contrary. Dist. E. sonable to say that the defendant ought to be bound D., New York, June 26, 1880. Force v. Ship Pride of by the decision of the foreign court? I am at a loss to the Ocean. Opinion by Benedict, J. find any circumstance which renders it reasonable,

RECEIVERS ACTIONS AGAINST - CONSTITUTIONAL and therefore it appears to me that the defendant is at

LAW – JURY TRIAL.- (1) Property in the hands of a liberty to say that he is not in any way bound by the

receiver is in custodia legis. His possession is the posjudgment so obtained against him in the foreign court, and without notice to him, and to which he has in no

Appearing in 3d Federal Reporter.


session of the court appointing him. No suit can be that the amount of the rent to be paid annually for the brought against him to disturb his possession, or to next five years should be six per cent on the appraised charge him with liability for an act done in the per- value of the premises, to be ascertained by appraisers, formance of his duties as such receiver without the one to be selected by each party, and they to select consent of such court. Any one instituting such a suit another, in case they could not agree, it was held that without leave may be enjoined or attached for con- the contract was uot within the statute of frauds as to tempt. The proper proceeding is to apply to the court the rent to be paid for the second five years. Brown appointing the receiver by petition, setting forth v. Bellows, 4 Pick. 179. (2) Where the parties to a therein the grounds of complaint. Thereupon the lease provide for rent to be paid yearly, at six per cent court will direct a trial by a jury, reference to a mas- on the appraised value of the demised premises, to be ter, or such other mode of proceeding as in its discre- ascertained by the selection of property-holders, this tion it may deem best. (2) The right of trial by jury is not a submission to arbitration, and no notice to in such a proceeding against a receiver, on a cominon- the parties is necessary beforo making the appraiselaw cause of action, is not an absolute right, but the ment, unless the lease so requires, and the finding of

granting or withholding thereof lies within the sound the appraisers, when selected, will be conclusive upon . discretion of the court. Such a proceeding is not a the parties, except for fraud. The cases on this sub

“suit at law” within the provision of the Constitu-ject are not harmonious. Peters v. Newkirk, 6 Cow. tion guaranteeing the right of trial by jury. In this 103, and McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. case upon application of bondholders of the Indianap- 463, rule that notice is required. But see Elmendorf v. olis, Cincinnati & La Fayette Railroad, in a suit to Harris, 5 Wend. 521. The New York rule is not foreclose their security, a receiver was appointed to adopted in Illinois. McAuley v. Carter, 22 Ill. 53; operate the road. During such operation a train ran Korf v. Lull, 70 id. 420. See, also, Leeds v. Burrows, over a Mrs. Cork. A petition was filed in the foreclos- 12 East, 1; Lee v. Hemmingway, 3 Nev. & M. 860; Colure proceeding by her husband, as administrator, to lins v. Collins, 26 Beav. Ch. 306; Garred v. Macey, 10 recover damages for her death. Held, that petitioner Mo. 161; Currey v. Lackey, 35 id. 389; Garr v. Gomez, was not entitled to a trial by jury. Jones' R. Sec., ss 9 Wend. 649; Mason v. Bridge, 14 Me. 468; Oakes v. 502-3; Story's Eq. Jur., $S 831, 833; Ship v. Harwood, | Moore, 24 id. 214; Rochester v. Whitehouse, 15 N. H. 3 Alk. Kerr. Rec. 168; Wiswall v. Sampson, 14 How. 65; 468. Norton v. Gale. Opinion by Schofield, J. Dickey, Davis v. Gray, 16 Wall. 203, 218; Thompson v. Scott, 4 J., dissented. Dill. 508. Circ., S. D. Ohio, July, 1880. Kennedy v. Indianapolis, Cincinnati & La Fayette Railroad Co., NORTH CAROLINA SUPREME COURT ABIn re Cork. Opinion by Baxter, C. J.





matters not at what time during the progress of an

arbitration the umpire is appointed. It is within the ACKNOWLEDGMENT - BY

WOMAN - IM- discretion of the arbitrators to appoint him before or PEACHMENT OF.- The certificate of acknowledgment after their disagreement. Where a submission to the by an officer authorized to make the same, to a deed award of two persons authorized the appointment of or other instrument affecting or relating to the title to an umpire by them, if they disagree, it was held they land, can only be impeached and shown to have been might choose an umpire before they entered upon the made in fraud, or as a forgery, by clear and entirely inquiry. Bates v. Cooke, 17 E. C. L. 407. The award satisfactory evidence. Mere suspicion, loose and un- is either the award of the umpire or the award of the satisfactory evidence, or inconclusive evidence, will arbitrators. Take it either way, and it is good. If not suffice. But where the clear and decided prepon- the appointment of the umpire by the arbitrators is derance of the evidence shows that a married woman proper at the time he is chosen, then it is his um pirage, refused to execute a note and deed of trust upon her and their joining with him will not vitiate; for a mere land, when urged to do so by her husband, and posi- stranger may join in an award or umpirage without tively refused to acknowledge the deed of trust, and invalidating the proceeding. But if on the other hand the proof showed that the signature was not in her the arbitrators have no right to choose an umpire behandwriting, but that the deed was executed by a fore disagreement, then it would be their award, and mark, when she could write, it was held, that a decree the fact of the umpire's joining in it would not vitiate setting aside the trust deed and enjoining av action of it. In the case of Soulsby v. Hodgson, 3 Burr. 1474, ejectment brought by the purchaser against her was there was a submission to arbitrators with power to proper. Myers v. Parks. Opinion by Walker, C. J. choose au umpire, if they could not agree in a certain CONSTITUTIONAL LAW – TAXATION

time. They failed to agree within the limited time, EXEMPTION BY

but chose an umpire. The umpire accordingly made CHARTER, BINDING ON STATE. - Where the property of a corporation is exempted from taxation by its char

an award and the arbitrators joined in it. The court ter, the exemption amounts to a legislative contract, alone, and held he was at liberty to take what advice

were clear that this was the umpirage of the umpire which is binding on the State, and such property cannot afterward be subjected to taxation. Opinion by

or opinion or assessors he pleased. And again, in Beck Dickey, J. Walker, C. J., and Scott, J., dissented.

v. Sargent, 4 Taunt. 232, which was a case where there

was a submission to arbitrators to make an award, and STATUTE OF FRAUDS - SALE OF REAL ESTATE - AR

if they could not agree within a limited time, then to BITRATION AS TO PRICE TO BE PAID — NOTICE OF AR

appoint an umpire. They did not agree within the BITRATION, WHEN UNNECESSARY. — (1) The statute of time, but chose an umpire and then joined with him frauds will be satisfied by such a statement in a writ- | in his umpirage. Mansfield, C. J., said, what the arbiten contract as ascertains the price to be paid, although trators did in making the award was nothing, and the it mentions no specific sum, as for instance, if to pay award in law is the award of the umpire alone; it was a price to be settled by arbitration, or upon the valua- nothing more than if mere strangers had joined in the tion of appraisers to be selected by the parties. Where award, and could not vitiate. And Heath, J., who sat a lease of lots, executed by both parties, fixed the an

in the same case, said, it has been decided in very old nual rent for the first five years, and then provided cases that the circumstance of another joining with * To appear in 35 Illinois Reports.

Appearing in 82 North Carolina Reports.


the arbitrators in making an award does not vitiate. Kenloch's case, Fost. 22; Ferrars' case, Raym. 84; Stevens v. Brown. Opinion by Ashe, J.

Rex v. Hayes, 2 Ld. Raym. 1521; King v. Scalbert, 2 CONSTITUTIONAL LAW – TAX ON DOGS. A statute

Leach's Cas. 706; King v. Stevenson, id. 618; Meadempowering town authorities to require the pay

ow's case, Fost. 76; Conway v. Queen, 7 Irish L. R. ment of a tax ou dogs is constitutional. It is not an

140; Winsor v. Queen, L. R., 1 Q. B. 289; State v. ad valorem but a specific tax for the privilege of keep Jones, 6 Halst. 290; Reg. v. Woodfall, 5 Burr. 2661; ing a dog within the town, and if not paid by tho

Arundell's case, 6 Rep. 14a; Campbell v. Queen, 11 Ad. owner, the dog may be treated as a nuisance and killed.

& El. (N. S.) 835; Gray v. Queen, 11 Cl. & Fin. 490. Property in dogs is recoguized by the law and pro

New Jersey Court of Errors and Appeals, November tected against wanton and needless injury, and a civil Term, 1879. Smith v. State of New Jersey. Opinion action for damages may be maintained by the owner.

by Beasley, C. J. Dodson v. Mock, 4 Dev. & Bat. 146; Perry v. Phipps, FORGERY INTENT TO DEFRAUD PERSON NAMED 10 Ired. 259. Yet they are not the subject of larceny. MUST BE PROVED - EVIDENCE-FLIGHT NOT EVIDENCE State v. Holder, 81 N. C. 527. The question as to the OF GUILT. — (1) It is necessary to prove, on the trial of right to impose a special tax upon dogs is discussed in one indicted for forgery, an intent to defraud the perBlair v. Ferchand, 100 Mass. 136. Gray, J., says: son named in the indictment as intended to be de“ These statutes have been administered by the courts frauded. This intent may be clearly shown by utteraccording to the fair construction of their terms anding the forged instrument, and if not passed, circumwithout a doubt of their constitutionality.Againstantial evidence. Evidence of statements or admisspeaking of an enactment which required the owner of sions in reference to the note for the forgery of which a dog to put a collar about its neck, to be constantly the person accused is being tried are admissible, but worn with the name and residence of the owner what he has said of another note said to have been marked thereon, and authorized any person to kill a forged is not admissible to prove the charge on which dog without such collar, when it had been decided that he is being tried. Regina v. Cooke, 8 C. & P. 582. Forno action would lie for such killing, he adds: “Simi- gery has been defined by law writers as “a false maklar statutes have been held in other States to be reas. ing; a making malo animo of any written instrument onable and coustitutional regulations of police.” Hurd for the purpose of fraud and deceit.” One of the acv. Chesley, 55 N. H. 21. Mowery v. Town of Salisbury. cepted meanings of the word "forge,” is to falsely make, Opinion by Smith, C. J.

without any regard to the intent. But the statute reEQUITABLE ACTION -- TO RELIEVE FROM USURIOUS quires an intent to defraud to be shown, and the mere CONTRACT. — The decisions are numerous and uniform making and possession do not necessarily prove an inin this State, as elsewhere, that a debtor seeking the

lent to defraud. Rex v. Shukard, Russ. & Ry. 200. aid of a court will be relieved of the usurious element That is clearly shown when the forged instrument is in his debt, only upon his payment of what is really uttered, or it may be inferred from circumstances. due. “If indeed the borrower," says Ruflin, C. J.,

But mere making and possession is evidence, it is true, “asks for assistance from equity, it may be refused

but it cannot be said, as a legal proposition, that it unless he deal equitably by paying the principal money proves a fraudulent intent. (2) Flight is not evidence loaned and legal interest.” Ballinger v. Edwards, 4

of guilt. It is only evidence tending to prove guilt. Ired. Eq. 449; Beard v. Bingham, 76 N. C. 285. Pur- And an instruction to the jury is erroneous that states nell v. Vaughan. Opinion by Smith, C. J.

that if flight was proved, it must be satisfactorily exREMOVAL OF CAUSE – DISTINCTION OF COLOR.- In Illinois Sup. Ct., May 18, 1880. Fox v. People of Illi

plained consistently with the innocence of the accused. an action brought to annul a deed, etc., the defendants nois. Opinion by Walker, C. J. applied by petition for a stay of proceedings in the Superior Court in order that the cause might be removed to the Circuit Court of the United States, alleging that

RECENT ENGLISH DECISIONS. the plaintiffs were white persons in whose favor a great partiality existed in that locality, etc., and that the

CONFLICT OF LAW - DOMICILE - FOREIGN DIVORCE. defendants were colored persons against whom there

-Two domiciled English subjects married in England, was existing a great prejudice, etc. Held, that the de

and subsequently the husband went to the United fendants were not entitled to the removal. The act

States and resided in the State of Kansas. He during (Rev. Stat. of the U. S., $ 641) applies only to cases

the time of such residence wrote letters to his wife when the laws or judicial practices of a State recognize expressing his intention to return to England and live. distinctions on account of color, race, etc., and not to

After a year's residence in Kansas he presented a peticases of mere local prejudice for which the case may

tion to the courts of that State for and obtained a be removed to another county. State v. Dunlap, 65 N. C. 491 ; Capehart v. Stewart, 80 id. 101; Slaughter married again. The wife had received no notice of the

divorce on the ground of his wife's desertion. He then House cases, 16 Wall. 36; Strauder v. West Virginia, petition. Held, that his domicile at the time of the 21 Alb. L. J. 309. Fitzgerald v. Allman. Opinion by divorce was English, and consequently that the AmeriSmith, C. J.

cau divorce was invalid, and that he had committed

bigamy. Quære, whether the domicile of the wife folCRIMINAL LAW.

lows the domicile of the husband so as to compel her FORMER JUDGMENT — WHAT IS NOT SO AS TO BAR

to become subject to the jurisdiction of the tribunals NEW TRIAL.-If a judgment in a criminal case is re

of any country in which the husband may choose to versed on error, in consequence of an error committed acquire a domicile. Probate Div., May 11, 1880. Briggs by the trial judge in charging the jury, the first trial

v. Briggs. Opinion by Hannen, Pres., 42 L. T. Rep. will not be a bar to a retrial on the same indictment. (N. S.) 662. The modern English doctrine seems to be that nothing INTEREST ON MORTGAGE AFTER DUE NOT AT CONbut an existing judgment, either of conviction or ac- TRACT BUT AT USUAL RATE.— By an indenture of quittal, so that a plea of autrefois convict or autrefois mortgage reciting an agreement for a loan of ten per acquit can be pleaded, will have that effect. The Con-cent, the mortgagor covenanted for payment of the stitution of this State goes no further than to forbid principal at the expiration of twelve months, and for the retrial of a person who has been acquitted. See the payment of interest in the mean time at the rate of Vaux's case, 4 Rep. 44; Reg. v. Houston, 2 Craw. & D. ten per cent per annum; but there was no covenant as 310; Doc. & Stu. C. 52; Rex v. Keite, 1 Ld. Raym. 138; to payment of interest in the event of the principal or


any portion of it remaining unpaid after the day title, commits an injury to land situated in a foreign named for payment. The principal was not paid at State, jurisdiction should be, and has heretofore been, the expiration of twelve months, but interest at ten rightfully refused. But if, on the other hand, the case per cent was paid for several years. After the death is one of which the courts should, ought, may, or can of the mortgagor a judgment was given for the admin- take cognizance, and no real difficulty or objection existration of his estate, and the mortgagee proved as a ists in the particular case, and no principle of law is creditor for the principal and interest. Held, that in- violated or any constitutional provision broken downterest was recoverable only as damages, and ought to in other words, if the doctrine under consideration is be limited to five per cent (the usual commercial value founded and depends solely and principally for its supof money), that being the amount which a jury would port upon the common-law rules of venue, with all be recommended to give in an action at law for non- their technicalities and formal distinctions, it falls payment of money on a day certain. Ct. of Appeal, with the abrogation of those rules and is no longer susMarch 10, 1880. Goodchap v. Roberts. Opinion by tainable, unless it can be placed upon a foundation of Jessel, M. R., 42 L. T. Rep. (N. S.) 666.

solid and substantial reasons. I agree, therefore, with MARITIME LAW -- AVERAGE.- Where a vessel has

Mr. Cowles that the Code only applies to actions of put into port to repair an injury occasioned by a gen

which the courts can take jurisdiction. The question eral average sacrifice, the expenses of warehousing and

then is, whether the courts of this State should, ought, reloading goods necessarily unloaded for the purpose

may, or can take cognizance in any case of an action of repairing the injury, and expenses incurred for

for injuries to land situated in a foreign State. If a pilotage and other charges on the vessel leaving the

rich man should come over from Jersey City to New port, are the subject of general average. The practice York, and in a careless and negligent manner set fire of British average adjusters for the last seventy years

to and destroy Mr. Cowles' house, he concedes it dissented from. Judgment of the Queen's Bench Di

would be a hardship, indeed, but not so great by vision affirmed. Court referred to Plummer v. Wild- any means if the courts of New Jersey should, conman, 3 M. & S. 482; Power v. Whitmore, 4 id. 141;

trary to the law sanctioned by the wisdom of ages, Hallett v. Wigram, 9 C. B. 580, 607; Abb. Ship. (8th compel the rich man to pay for the damages. If the ed.) 478; Benecke Mar. Ins. 191 ; Stev. Av. 22; Bailey's injury was willfully done, the person who committed Av. 119; Hall v. Janson, 4 E. & B. 24; The Copen-might also be maintained against him here. But where

it could be extradited to this State and a civil action hagen, 1 C. Rob. 289; Lowndes' Gen. Av. (3d ed.) 107; Job v. Langton, 7 E. & B. 779; Walthew v. Marojani,

the injury was negligently committed, Mr. Cowles L. Rep., 5 Ex. 116. Ct. of Appeals, March 24, 1880.

would be without remedy, unless the party should be Atwood v. Sellar. Opinion by Thesiger, L. J., 42 L. T.

sued in this State. I do not presume to say, that juris. Rep. (N. S.) 614.

diction of actions of trespass to land should in every

case be entertained, but I do say that, upon principle STATUTE OF LIMITATIONS - NOTE PAYABLE THREE

and reason (assuming my own reason to be the standMONTHS AFTER DEMAND. — Payment of a promissory ard) if not upon authority, jurisdiction can be enternote "payable three months after demand”

tained without any real difficulty where the defendant sought to be enforced by its holder. The note was in

cannot set up an apparent title either in himself or in dorsed with payment of two installments of interest,

a third party. I leave it to the courts to determine in but no interest has since been paid during a period of

each case as it arises whether the action should be susupward of twenty years. Held, that payment of inter- tained or dismissed. But that there are some cases in est was not evidence that a demand for payment of which jurisdiction may be entertained, seems clear bethe principal had been made so as to make time run yond all doubt. Though it has been repeatedly held against the holder of the note under the Statute of for many years that jurisdiction of such cases could Limitations, and that the fact that more than twenty not be taken, that is no reason why the courts should years bad elapsed without payment was not a fact not hold the other way. Where the reason of the rule from which the court could presume satisfaction of ceases, the rule itself should cease to prevail, for the the note in the absence of any demand having been reason is, as it is said, the life of the law. The princimade. Chan. Div., March 23, 1880. Brown v. Ruther-ple of stare decisis is a good one and must be respected ford. Opinion by Hall, V. C., 42 L. T. Rep. (N. S.) and upheld, but it is subject to exceptions, qualifica

tions and limitations. It cannot be invoked for the

protection of a person, who, without color of right or CORRESPONDENCE.

authority, commits an injury to property situated in another State or country. Notwithstanding the prin

ciple of stare decisis, great innovations have been made ACTION FOR INJURY TO LAND IN ANOTHER STATE,

upon the common law by the courts, as well as by the To the Editor of the Albany Law Journal :

Legislature. The fallacy that judges do not make law, As your correspondent, Mr. Cowles, seems to misun- but only declare it as it previously existed, has long derstand the scope and meaning of my article, in which since been exposed. Austin speaks of the “childish I endeavored to show that the common-law rule, that fiction employed by our judges, that judiciary or comthe venue of an action for injuries to land situated in mon law is not made by them, but is a miraculous a foreign State cannot be laid in any county in this something made by nobody, existing, I suppose, from State, has been abrogated by the Code, I avail myself eternity, and merely declared from time to time by the of the opportunity of defining my position and making judges.” “Where the introduction of a new rule myself more clearly understood.

would interfere with interests and expectations which If the case is one of which, upon principles of general have grown out of established ones, it is clearly injurisprudence, upou grounds of public policy, or for cumbent on the judge stare decisis, since it is not in sound and substantial reasons, the courts of this State his power to indemnify the injured parties. But it is should not, ought not, or cannot take cognizance, then much to be regretted that judges of capacity, experiI admit that the doctrine in question is not abrogated, ence and weight have not seized every opportunity of since the Code does not confer, or purport to coufer introducing a new rule (a rule beneficial for the future), jurisdiction in such cases, but merely regulates and whenever its introduction would have no such effect. prescribes the place of trial of actions of which the This is the reproach I should be inclined to make courts can or may take cognizance. If there is any in- against Lord Eldon," and Kenyon. herent difficulty in or objection to awarding damages Mr. Cowles says that the rule in question is approved against a person, who, without a shadow or color of or sanctioned by Lord Mansfield and Chief Justice


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