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Such laws have been sustained as simply requiring a building." The warehouse with its contents periodical cessation from labor — the power to pass totally destroyed by fire in November, 1872. At the them resting upon the right of the Legislature to pass time of the loss, it contained goods belonging to the laws for the preservation of health and the promotion defendants and goods consigned to them for sale of good morals. I do not deem it necessary, in this amounting in value to $174,073, and goods sold but not place, to assent to the proposition, that a law which removed of the value of $30,551. Among the goods enforces, under penalty of fine and imprisonment, a sold, but not removed, were certain goods of the cessation from labor upon Sunday by one whose re- plaintiffs, which they had purchased of the defendligious belief has imposed upon him the duty of taking ants. The insurers settled as for a total loss for $165,his rest on Saturday, in no degree discriminates against 000. Some of the insurance companies became inhis “religious profession." But admitting the con- solvent so that defendants received but sixty-three stitutionality of general laws prohibiting all labor on per cent of this amount, which was not enough to pay Sunday, or upon any other day, I think the act of April the value of the goods owned by and consigned to de16, 1880, is a “special law," within the meaning of those fendants. It appeared that if the goods sold and not terms as employed in section 25, article IV, of the removed were not included in the adjustment of loss, present Constitution. The act does not declare the there would have been no difference in the amount business of “baking,'' as ordinarily conducted, to be allowed for insurance. Defendants were bound by a nuisance; nor does it contain any intimation that the contract to insure all their consignments, and had apbusiness of baking may tend to interrupt divine wor- plied the sum received to indemnify themselves aud ship by any class of sectaries, or can otherwise inter- their consignors, and no portion of it was applied for fere with the rights or privileges of any citizen. The the benefit of plaintiffs. It was usual for those enbaking of bread is not only lawful and necessary, but gaged in this business to take insurance on goods sold we will take notice that there is nothing so peculiar in and not delivered or removed, but there was no custhe occupation as that those engaged in it require-as tom to insure for the benefit of purchasers; and there a savitary measure or for the protection of their was no contract, to insure for the plaintiffs' benefit the morals—a period of rest not required by those engaged goods thus purchased by them. Plaintiffs brought in many other employments.
this action to recover an aliquot portion of the insurA general law must include within its sanction all ance moneys secured to apply on their goods lost. who come within its purpose and scope. It must Held, that they were not entitled to recover on the be as broad as its object. If it is to be made a crime ground that it was the duty of the defendants to insure not to refrain from labor during the whole or dur- their goods not removed from the warehouse, nor ing any portion of any given day of the week, it could they on the ground that the defendants, having must be made equally a crime as to all persons who voluntarily insured the plaintiffs' goods, and received do not so refrain; or the prohibitory law must be from the insurers money ou accouut of the same, are made applicable to all of a class, the members of bound in equity to pay it over. The defendants rewhich for reasons apparent upon mention of the ceived no money on account of the goods of the plaintclass, may at least require, for the benefit of their iffs. The money that they received was not sufficient health or morals, a period of rest not beneficial to to pay for their own goods and those of their consignors any other class or individual. We might perhaps destroyed by the fire; and there was no equity, as take notice that there are controlling reasons why between them and the plaintiffs, which required them clergymen should not be prohibited from pursuing their to pay over to tbe plaintiffs any portion of the mouey pious labors on the Christian Sabbath, and that a law so received. And even if plaintiffs' goods were inmight still be general which included all others, al- cluded in the statement of loss, that could not of itself though it excluded them. So we might perhaps hold give any rights to the plaintiffs which they did not that there are other special classes who might be per
The defendants were under no mitted to pursue their avocations, notwithstanding a obligations to include these goods in their statement law which prohibited labor by the rest of the commu- of loss.. If they had been omitted from the statement, nity, because of the fact that their peculiar pursuits the defendants would have been entitled to receive the involved "works of necessity," and placed them be. same amount; and they did not actually receive any yond the benefits of the law which would compel an more because they were included. Martineau v. Kitchenforced cessation of labor by others. But there can ing, L. R. 7 Q. B. 436; Stilwell v. Staples, 19 N. Y. 401. be no rule which will permit the prohibition of a par- Reitenbach v. Johnson. Opinion by Eudicott, J. ticular kind of labor in itself innocent and beneficial
MERGER- - OF MORTGAGE SECURING NOTE. — Defendto the public. There is no reason, and can be no reason, why bakers should be forced to rest from their
ant made his note payable to the order of plaintiff and labors periodically, which is not applicable to many
secured the same by mortgage upon certain premises other classes of artisans and workmen. To say that
owned by him. These premises defendant conveyed
to W., who assumed the mortgage. W. conveyed the every law is"
general" within the meaning of the Constitution, which bears equally upon all to whom it
premises to plaintiff, subject to the mortgage, which
was recited to form part of the consideration. Plaintiff is applicable, is to say that there cau be no special laws.
afterwards conveyed the premises to D. and brought this action on the note. Held, that there was a merger
of the mortgage, and defendant was not liable on tho MASSACHUSETTS SUPREME JUDICIAL
note. Dickerson v. Williams. Opinion by Ames, J. COURT ABSTRACT.
TAXATION - OF LANDS HELD BY RELIGIOUS CORPOJULY AND SEPTEMBER, 1880.
RATION. — Plaintiffs, a religious incorporated society,
purchased by one deed a tract of land through which INSURANCE – FIRE POLICY - INSURANCE OF GOODS was a well-defined right of way. On the east of the SOLD BUT NOT DELIVERED - INSURANCE
AN- way were buildings occupied for the purposes of the OTHER'S BENEFIT.-Defendants, who were commission society. On the west side of the way there was no merchants, effected insurance in their own name to the building, but it was intended by the society to conamount of $165,000, upon merchandise contained in struct a building to be used for school purposes On their warehouse in Boston. It was described in the this land, which was suited for cultivation, there had policies of insurance as "merchandise, principally been vegetables raised, part of which were used by the hide, and leather, their own, or held by them in trust, society for its own purposes and the remainder given or on commission, or sold, but not removed from the
away to the poor. The society leased no part of the
land and derived no profit from it. Held, that the land upon the west side of the way was not exempt from taxation under a statute exempting houses of religious worship from taxation. Under that statute it has been decided that the land on which such houses stand is included in the exemption. Trinity Church v. Boston, 118 Mass. 161. Real estate held by a religious society, not more than sufficient in extent to meet its reasonable requirements in this respect, and devoted by such society in good faith to the erection of a church edifice, is entitled to the exemption given by the statute. But it is the appropriation of the property to the sacred uses contemplated which secures this privilege. The lot of land on the west side of the way was not so appropriated. No church edifice had been erected upon it; and it did not appear that any such edifice was intended to be erected upon it. Held, also, that it was not exempt under a provision exempting real estate of literary, benevolent, charitable and scientific institutions occupied by them for the purposes for which they were incorporated. It did not appear that the lot of land in question was occupied for the purposes for which the society was incorporated. The most that could be said is that the society intended that it shall be so occupied at some time, but to all appearance, the time of such occupation was left wholly indefinite, and there was nothing to prevent the society from changing its plans and alienating the property whenever it pleased. The exemption, instead of being absolute, is conditional; and at the date of the tax in controversy, the condition had not been fulfilled. Boston Society of Re• demptorist Fathers v. City of Boston. Opinion by Ames, J.
morality and policy (Goodnight v. Moss, Cowper, 591), and no judge or author has ever dissented from his strong approval. Avd changes in the statute have left this rule of the common law untouched. Tioga County v. South Creek Township, 75 Penn. St. 436; Boykin v. Boykin, 70 N. C. 262; Chamberlain v. People, 23 N. Y. 88; People v. Overseers of Ontario, 15 Barb. 286; Hemmingway v. Towner. 1 Allen, 209; Parsons v. People, 21 Mich. 509. (3) Where there was no proof of inability or of the certain want of opportunity for intercourse, and a child was born eight months after an alleged criminal conversation, held, that the testimony of the husband and wife that they had had no intercourse would not overcome the presumption of legitimacy of the child. It was a maxim of the Roman law, and which the common law copied, that the presumption is always in favor of legitimacy (Co. Litt. 126a), and that he is the father whom the marriage indicates (Co. Litt. 123; Domat. Pt. 1, B. 3, 76, $ 5); and Montesquieu, alluding to it, observed that the “wickedness of mankind makes it necessary for the laws to suppose them better than they are. Thus we judge that every child conceived in wedlock is legitimate, the law having a confidence in the mother as if she was chastity itself.”. B. 6, ch. 17, Sp. of S. And D’Aguesseau laid it down that “whilst the birth of children can be ascribed to a legitimate source, the law will not suffer criminality." Greenleaf says that when the husband and wife cohabit together as such, and no impotency is proved, the issue is conclusively presumed to be legitimate, though the wife is proved to have been at the same time guilty of ivfidelity. 1 Ev. & 28. The warrant of authority is in favor of qualifying this statement, and instead of regarding the presumption as conclusive, to require it to apply with great force, but subject to be overcome by admissible facts and circumstances of such cogency as to render belief necessary. Morris v. Davis, 5 Cl. & Finn. 163; Wharton's Ev., § 1298; Best's Ev. (Wood's ed.) 426; Stephen's Ev., art. 98. In the case of Banbury Peerage, the House of Lords dealt with the presumption, and the degree of evidence necessary to overcome it, in this language: “In every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife, until that presuinption is encountered by such evidence as proves to the satisfaction of those who are to decide the question that such sexual intercourse did not take place at any time when, by such intercourse, the husband could, according to the laws of nature, be the father of such child." 1 Sim. & S. 155. And in Bury v. Philpot, the Master of the Rolls ruled that when opportunity existed for sexual intercourse within such period that the child in question might have been begotten by the husband, mere probabilities can havo no weight against the legal inference. 2 Myl. & K. 349; and see Kliner v. Ehlers, 38 Penn. St. 439; Dennison v. Page, 29 id. 426; Hargrave v. Hargrave, 9 Beav. 552; Head v. Head, 1 Sim. & S. 150; Patterson v. Gaines, 6 How. 550; Stigall v. Stigall, 2 Broch. 256; Sullivan v. Kelly, 3 Allen, 148; Phillips v. Allen, 2 id. 453; Cross v. Cross, 3 Paige 139. Egbert v. Greenwalt. Opinion by Graves, J.
MICHIGAN SUPREME COURT ABSTRACT.
CRIMINAL CONVERSATION ACTION FOR, NOT DEPENDENT ON WIFE'S CONSENT --- EVIDENCE -- HUSBAND AND WIFE NOT COMPETENT TO PROVE WANT OF SEXUAL INTERCOURSE - PRESUMPTION OF LEGITIMACY. — (1) The common law, in giving the action for criminal conversation, instead of making the husband's right of action depend on his wife's having consented to her defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent, but was overcome by force; and the action has been sustained just the same whether as matter of fact her will concurred or she was outraged by actual violence. Bac. Ab. Mar. and Div. 551-553; 3 B1. Com. 139; 1 Chitty Pl. (7th Eng., 16th Am. ed.), 110, 188; Broom Com. 817; 2 Hilliard on Torts, 592; Forsyth v. State, 6 Ohio 23. And there seems to be no basis in justice or policy for the position that if the personal wrong is accompanied by circumstances of such atrocity as to elevate it to the publio offense of rape, the private remedy is thereby either taken away or suspended. Cooley on Torts, 86. It is not reasonable to convert the wife's innocence into a shield to save her assailant from prosecution for his private wrong to her husband. Lord Holt recognized the principle that both remedies were admissible in a case of actual violence; and alluding to an attempt to carve out cause for a tbird proceeding to be carried on in the bishop's court, he said: “If a man solicit a woman and go gently to work with her at first, and when he finds that will not do he proceeds to force, it is all one continued act, beginning with insinuation and ending with force. Rigant v. Gallisard, 7 Mod. 78. (2) According to an ancient rulo of the common law the evidence of neither husband nor wife will be received to disprove the fact of sexual intercourse. Rex v. Rook, 1 Wils. 310. And Lord Mansfield declares that it was founded in decency,
TAXATION -COLLECTOR OF TAX NOT LIABLE FOR ENFORCEMENT OF TAX - WARRANT VALID ON ITS FACE. -- If tax proceedings on their face are fatally defective. a suit will lie to recover back money paid under them. Smith v. Nat. Bank, 17 Mich. 479; Grand Rapids v. Blakeley, 40 id. 367; Wattles v. Lapeer, id. 624. But a tax assessment is in the nature of a judgment, and the authorities are numerous that it cannot be assailed for fraud or irregularity in a suit against an officer who holds process fair on its face for enforcing a tax based
Holden v. Easton, 8 Pick. 436; Lincoln v.
Worcester, 8 Cush. 55; Cheever v. Merritt, 5 Allen, 563; single when she executed a judgment bond, thereby Hubbard v. Garfield, 102 Mass. 72; Savacool v. obtaining the consideration therefor, was not estopped Boughton, 5 Wend. 171; Howell v. Tripp, 61 Me. 4:26; froin setting up her coverture as a defense to a recov. Cunningham v. Mitchell, 67 Penn. St. 78; Greene v. ery on the bond. And where as in the present can Mumford, 4 R. I. 313; Glascon v. Rouze, 43 Me. 479; the purchaser kuow the woman to be married he was Erskine v. Hohnback, 14 Wend. 613; Bird v. Perkins, not deceived and had no reason to complain of her 33 Mich. 28. There are numerous decisions which ex- subsequent refusal to relieve him of the consequences of tend a like immunity to the assessing officer, and which his foolish conduct. Alexander v. Kew, 2 Drawle, 90; do not suffer his assessment, wheu regular on its face, Cress v. Jack, 3 Watts, 238; Carr v. Wallace, 7 id. 394: to be impeached in a suit against him, and there are Mc Aninch v. Loughlin, 1 Harris, 371; Hill v. Epply, 7 none which support an action at the suit of an indi-Casey, 333. Innis v. Templeton. Opinion by Mervidual exeept on the ground of fraud or malice. Mo88 v. Cummins. Opinion by Cooley, J.
SET-OFF-IN ACTION BY HUSBAND AND WIFE-DEBT
OWED BY ONE ONLY. In a suit on a promissory note PENNSYLVANIA SUPREME COURT AB- made by defendant below to plaintiffs below, who STRACT.
were husband and wife as joint payees; held that B.
.could not interpose as a set-off a debt against one of OCTOBER, 1880.
the plaintiffs. As a general rule, set-off is admissible
only were it is in the same right and between the same ACTION-CONSTITUTIONAL PROVISION TO BE SUPPLE- parties. Milliken & Co. v. Gardner, 1 Wright, 456. To MENTED BY LEGISLATION. A constitutional provis- this rule there are some exceptions. Among them may ion that in cases of death resulting from injuries “the be stated where suit is brought by a surviving partner right of action shall survive, and the general assembly a set-off against the late firm is allowable. So those shall prescribe for whose benefit such actions shall be sued jointly may set off a debt due by the plaintiff to prosecuted,” held not to give an administrator of one one of them. Chilbertson v. Harmony, 9 S. & R. 68. dying from injuries, a right of action in the absence of This may be done unless there be some superior equity legislative enactment upon the subject. The provis- | in the third person. Stewart v. Coulter, 12 id. 252. ion of the Constitution coupled, as it is in the same
But a defendant cannot set off a debt due him by one sentence, with the direction that the Legislature shall of several plaintiffs. Pars. Cont. 739; Henderson v. declare who shall exercise the right, would be conclu- Lervis, 9 S. & R. 379; Watson v. Hunsell, 7 Watts, 344; sive that the right itself is a limited one, to be put in
A rcher y. Duun, 2 W. & S. 361; Norcross v. Benton, 2 force for certain persons to be prescribed only by Wright, 217. The fact that the defendants in error are the legislative body. Hence, the inference is not
husband and wife does not change the rule. She may warranted tbat the right of action is a general one, to
hold, use and enjoy her separate property to the excluexist independently of or without the appropriate leg
sion of her husband, and of all other persons. Bentz islation. In the case of Mann v. Weiand, 4 W. N. C.
v. Bentz. Opinion by Mercur, J. 6 the court held that the right of action for damages from death by negligence never existed in the deceased, that it was given to and first existed in the widow, and
FINANCIAL LAW. hence the defendant was a competent witness in his own behalf in an action against him by the widow. MORTGAGE ACCOMPANYING NEGOTIABLE NOTE NOT The same principle applies here. Brooks v. Burrough of LIABLE TO EQUITI ES. - Where a negotiable note secured Danville. Opinion by Green, J.
by a mortgage is with the mortgage transferred in
Indiana to a bona fide purchaser for value without MARRIED WOMAN — DIVESTED OF TITLE TO REAL notice, before maturity, he takes the mortgage free ESTATE ONLY IN STAUTORY MODE - ESTOPPEL. Where
from the equities between the parties. The court say the statute provides the manner in which a married
in 1 Jones on Mortgages, $ 11: “In equity a mortgage woman may divest herself of title to real estate she of land is regarded as a mere security for a debt or cannot divest herself in any other way; consequently obligation, which is considered as the principal thing, when she made an agreement to sell land she cannot
and the mortgage only as the accessory. The legal by such acts as waiving a forfeiture or receiving pur
title vests in the mortgagee merely for the protection cbase-money estop herself from asserting her title
of his interest, and in order to give him the full benefit where the statutory provisions have not been com
of the security; but for other purposes the mortgage is plied with. Hepsel v. Gefser, 2 Grant, 84; Rumfet v.
a mere security for the debt." This rule, as to the Clemens, 10 Wright, 455; Gliddon v. Stempler, 2 P. F.
essential qualities of a mortgage, has been fully recogSmith, 400; Dunbam v. Wright, 3 id. 167 ; Graham v.
nized and accepted in this State. Fletcher v. Holmes, Long, 15 id. 383; Brown v. Bennet, 25 id. 420. The
32 Ind. 497. With us the debt secured is the principal fact that she may have a part or the whole of the pur
thing and the mortgage is but the incident. Samples chase-money in consideration of her agreement, or
v. Rowe, 24 Ind. 208; Garrett v. Pickett, 15 id. 485. induced the purchaser to make valuable improvements
It follows that in this State the indorsee of a negotiable thereon, is insufhcient to pass her title to real estate
note, secured by mortgage, takes the mortgage diswhere the form of transfer prescribed by the statute
charged from all the equities to which the note may has not been observed. To hold otherwise would
have been subject in the hands of the payee, to the operate as a repeal of the statute which desiguates the
same extent as the note itself is discharged from such only mode in which a married woman can convey her real estate. Thorudale v. Morson, 1 Casey, 326: Rich-equities. In that respect the indorsee takes the mort
gage as he takes the note. Carpenter v. Lougan, 16 ards v. McClelland, 5 id. 385; Pellet v. Fritz's Execu
Wall. (U. S.) 271; Logan v. Smith, 62 Mo. 455. Indiana tors, 9 id. 118. The doctrine of estoppel cannot be
Sup. Ct., May 25, 1880. Gabbert v. Schwartz. Opinion invoked to enforce an agreement for the sale of her
by Niblack, J. land when her agreement was otherwise void. Legal incapacity cannot be removed, even by fraudulent rep- NEGOTIABLE INSTRUMENT resentation, so as to create an estoppel in the act to TO PRESENT BILL DISCHARGES DRAWER.-Unreasonable which the incapacity relates. Hence it was held in delay of a payee of a draft to present it to the drawer, Keen v. Coleman, 3 Wright, 299, that a married woman or to notify the drawer of its non-acceptance or nonwho falsely and fraudulently represented that she was payment, or to return it to him as refused by the
20., returning it to E., or making any objection to it
, ON those pear spoke in terms of commendation of it.
payee, makes the paper the payee's own and discharges
NEW BOOKS AND NEW EDITIONS. the drawer. In this case E., being indebted to A., proposed to give him an order on X., and A. refused to receive it, giving no reason, except that he wanted the
MCCRARY ON ELECTIONS. money. E. then promised to send A. a 60-day draft, which A. understood to be on a bank. Six weeks
A Treatise on the American Law of Elections. By George W.
McCrary, Judge of the U.S. Circuit Court, etc. Second thereafter A. wrote to E. asking the latter to send him
Edition. Revised, Enlarged and Improved. Chicago : a 60-day draft for the amount due, and E. sent him a
E. B. Myers, 1880. Pp. 545. 60-day draft on X. Without presenting this draft to
the . A. kept it about a year and then offered to return it, but E. refused to receive it. It does not appear that See 12 Alb. L. J. 381. There is no equally careful, X. was unable to pay the draft at any time, or that E. comprehensive and orderly treatise on this topic, suffered any loss by the delay in presenting or return- within our knowledge. It is of value not only to lawing it.
Held, that these facts are not sufficient in law yers but to election officers. Among the new matter to relieve A. from the operation of the rule above is a chapter on statutes regulating the conduct of elecstated, in the absence of any finding by the jury that tions, which was originally published by the author in E. acted in bad faith in sending the draft to A. under the North American Review. the circumstances. Millberg v. Fisher, 24 Wis. 607; Webster v. Studdin, 14 id. 277; Ford v. Mitchell, 15
THOMPSON'S CHARGING THE JURY. id. 204; Lindsley v. McLelland, 18 id. 481; Phenix Ius. Co. v. Shvales, 20 id. 35. Wisconsin Sup. Ct., Charging the Jury. A Monograph. By Seymour D. Thomp. Sept. 21, 1880. Allan v. Eldred. Opinion by Orton, J.
St. Louis: William H. Stevens, 1880. Pp. xxvii,
196. NEGOTIABLE INSTRUMENT – RECEIVER'S CERTIFICATE NOT.-A receiver was authorized by order of the This work is divided as follows: Questions of law court to issue certificates payable to the payees named for the court; power to order a nonsuit or direct a “or order." The receiver issued a certificate payable verdict; invading the province of the jury; the eleto the payee
“ or bearer." Held, that an innocent pur- ments of the charge; requests, exceptions, and the chaser for value did not hold such certificate unin- manner of giving the charge; statutes requiring indorsed by the payee free from the equities; first, structions to be in writing; principles which govern because the receiver was not authorized to issue it in courts of error in granting or refusing new trials for the form it was in, and second, because such a certificate misdirection or non-direction. Mr. Thompson has hit is not commercial paper. In Dawks v. Loraine, 3 upon a fresh subject, and has treated it in an excellent Wils. 207, in respect to such paper it is said, that a bill manner. The book is an admirable manual for every of exchange must carry with it a personal and certain person who is "studying to be a judge," and for every credit given to the drawer not confined to credit upon judge to have at his right hand, in every trial, with any thing or fund. He to whom such a deed is made Abbott's “ Trial Evidence." The lawyer will find it not payable or indorsed takes it upon no particular event only instructive as a book of reference, but very interor contingency except the failure of the general per- esting for consecutive perusal. There is a table of cases sonal credit of the persons drawing or negotiating the cited. Wo have commented in another place on the same. The courts of this country have, with great author's estimate of tho jury system. He bas not alunanimity, given the same general definition of nego- lowed his dislike of the system to color his work. On tiable instruments. In Beard v. Underwood, 74 Ill. the contrary, he urges the policy of allowing verdicts to 176, it is said that it enters not into the definition of a stand on the merits, disregarding immaterial techni. promissory note that the money must be payable at all calities. events, not depending on any contingency in regard to the event, or the fund out of which payment is to be
31 Wood's REPORTS. made, or to the parties by or to whom payment is to be made. Husband v. Epling, 81 Ill. 172; Mills v. Cases Argued, and Determined in the Circuit Courts of the Kuykendall, 2 Black, 47; Haniman v. Sanborn, 43
United States for the Fifth Judicial Circuit. Reported Me. 128; West v. Fonner, 21 Ala. 400; Corbit v. State,
by William B. Woods, the Circuit Judge. Vol. III.
Chicago: Callaghan & Co., 1880. Pp. xxiv, 800. 24 Ga. 287. Applying these principles, it is apparent that receivers' certificates, such as the one in issue, This volume contains cases arising in Louisiana, have none of the essential qualities of negotiable or Texas, Florida, Georgia, Alabama and Mississippi. We commercial paper. They are of recent introduction in mote the following of general interest: Booth v. Smith, business transactions, and have not been the subject of p. 19.– The owner of a promissory note, who has volmuch judicial construction. The most that can be untarily destroyed it, cannot recover upon it nor upon predicated of them is that they are evidence in the the original consideration. Moore v. Jones, p. 53.- A hands of the holder that he is entitled to receive from pledgee of National banking stock as collateral sethe fund under the control of the court, that author-curity, allowing a transfer of the stock to himself on ized its officers to issue them, the amount specified, if the bank books, becomes individually liable for the enthe fund is sufficient to pay in full all holders of such gagements of the bank. New Orleans v. Morris, p. certificates, or if it is not sufficient, then only a pro 103.— A bazaar, owned by a city, and exclusively used rata share with other holders. Nearly every quality for the sale of merchandise other than comestibles, is essential to the negotiability of commercial paper is subject to sale under execution. Bertonneau v. Directwanting in such certificates. In the first place they are ors of City Schools, p. 177.- Public schools being pronot payable unconditionally out of any fund. Whether vided for all children, the mere exclusion of colored in any event they are payable in full depends on the children from the schools where white children attend question whether the fund under the control of the is not unconstitutional. United States v. Goldman, p. court is sufficient for that purpose. That fact cannot 187.— The Federal statute making it a criminal offense be known except upon inquiry into the amount of such to conspire forcibly to prevent any citizen entitled to certificates issued by the officer authorized to act, and vote from giving his support and advocacy in a legal as to the value of the fund to be administered. Illinois manner in favor of a lawfully qualified candidate for Sup. Ct.. May 18, 1880. Turner v. Peoria & Springfield Congress is constitutional. State Lottery Co. v. FitzRailroad Co. Opinion by Scott, J.
patrick, p. 222.-A legislative act, repealing the charter of a lottery company, granted for a terın of years, upon As the writer of the articles on legal subjects in the payment of an annual license fee to tbe State, for the Times is invariably a barrister of experience, I think expressed purpose of providing a fund for educational wo may tako it for granted that he has rightly repreand charitable objects for citizens of the State, which sented the case, and has been properly advised as to charter has been acted upon, is uncoustitutional. tho authorship and authority of the letter referred to. Kiduell v. Houston & Great Northern Ry. Co., p. 313. —
Yours respectfully, In au action by a servant of a railway company against
Hugh WEIGHTMAN. the company for an injury sustained by a defect in a NEW YORK, October 27, 1880. car, notice of such defect to the car-inspector and master-mechanic of the company is not notice to the company. Ex parte Francois, p. 367.--A State statute
JUDICIAL NEPOTISM. prohibiting marriage between white persons and ne
Editor of the Albany Law Journal : groes, and imposing penalties for its violation upon such white persons, but none on negroes, is not uncon
I have seen no reply to the communication published stitutional. Jones v. Gray, p. 494.- An unmarried
in your JOURNAL under the head of “ Judicial Nepotman, who lives (but does not keep house) in one town,
ism,” in vol. 22, at pago 279, over the signature of and supports his mother and his unmarried sister, who
* Lawyer," and dated at Providence, R. I., September board with his married sister in another town, is not
20, 1880. It would not surprise any one if the state of the “head of a family."
things in the administration of law and of justice in the State of Rhode Island, which “ Lawyer" publishes, existed in a barbarous or semi-barbarous community.
The trial-justice serves the writ for the plaintiff, who CORRESPONDENCE.
is his own brother, and renders judgment for him for
the amount claimed and costs – the defendant proTHE “INDIAN SUMMER" PROBLEM.
testing - and other enormities. See his correspond
ence above referred to. Editor of the Albany Law Journal :
“ Lawyer" asks: “Is there any law outside the statSince the “Indian Summer" problem has elicited no ute which prohibits a judge from officiating as officer response, I suggest that although the chancellor seems of and in his own court, or which probibits a judge to have fully answered the question in Guion v. Knapp, from sitting in a case in which he may have an interest 6 Paige, 39, yet good lawyers differ as to the correct except an immediate pecuniary interest?” Answer: solution of the problem.
D. M. W. I am not aware that there is any law outside of the CAMBRIDGE, N. Y., October 25, 1880.
statute which prohibits the joining of judicial with ministerial functions in the samo oflicial, except the
course and practice of the old common-law and equity INJUNCTION AGAINST CUTTING PLAY.
courts; although it is obvious that they should be kept Editor of the Albany Law Journal:
separate and distinct in a well-considered system of
jurisprudence, or rather code of laws aud of judicial In your issue of the 23d instant, under the head of procedure. “ Current Topics,” you mention that “Miss Genevieve As to the other proposition involved in the question, Ward, it seems, has bought from Messrs. Merrivale & I know of 119 common-law rule forbidding a judge Grove the privilege of acting for a term of years a play from sitting in a case in which he may have an called ' Forget me not.' Miss Ward has seen fit, in interest other than an immediate pecuniary interest. putting the play upon the stage, to omit a single char- In the absence of such law, let me cite the remarks acter. Messrs. Merrivale & Grove sued to restrain of the late Judge Cowen, in his celebrated treather from making this omission, and Lord Coleridge ise on “Justices' Courts." In vol. 2, page 977 (I quoto has denied the application." Permit me to say this is from the second edition, which is by far the most not precisely the state of facts. As you quote from valuable edition), he says: A justice is not, like a the London News in support of the alleged refusal of juror, liable to be challenged for favor, partiality, or Lord Coleridge, I think I cannot do better than tran- even corruption; though he would be subject to inscribe the explanation given by the London Times of dictment for the latter. 12 Johns. 356. Thus, where the decision of his Lordship, as well as the nature of the justice was the father-in-law of the plaintiff (13 id. tho application made to the court. The Times of Octo- 191); or where he was balf-uncle to the plaintiff's wifo ber 14th says: “The point of law has not been decided, (17 id. 133); or where he had given an opiniou in the and an injunction has not, properly speaking, been re- cause (12 id. 356), this was held to be no cause of chalfused. The application was for an interim injunc- lenge. But there is a gross indecency in one's trying a tion, to take effect while the cause is waiting for a cause, as justice, for a near relation, which should inhearing. Lord Coleridge only decided that there were duce the Supreme Court, on certiorari, to scrutinize not sufficient reasons, at this stage of the case, for the his proceedings with a jealous eye. 13 id. 191. And if issue of an injunction. But he gave no opinion what- the fact of relationship appear from the return, the ever as to whether this contract between Mr. Merri- judgment would be reversed. 21 Wend. 63. And it is vale and Miss Ward had been broken, nor whether, if the duty of a justice, where he has inadvertently issued it had, the injury inflicted on the author was of such process, or proceeded in the prosecution of a suit in a character as to be properly restrained by au injunc- which he is related to one of the parties by consantion." The Times bases this assurance
upon an guinity or affinity, on his attention being called to the "authoritative letter sigued 'C' published elsewhere.' fact, to suspend all further proceedings and render no Upon turning to that letter, in another part of the judgment whatever in tho cause; ho cannot, on that paper, the internal evidence proclaims it to be a letter grouvd, render judgment of nonsuit, if the plaintiff be from Lord Coleridge himself, or ono written by his his relative; and if he does render such judgment it authority, and its concluding passago is as follows: will be reversed. Id. The statute declares (2 R. S. 204, “Nothing has been decided but that, in the opinion of 82, 2d ed., N. Y.) that no judge of any court can sit, as a judge, there was not a prima facie case for a sum- such, in any cause to which he is a party, or in which mary interference.'' The writer of the letter also he is interested, or in which ho would be excluded says: “The only question before Lord Coleridge was from being a juror by reason of consanguinity or as to the issuing of an interim injunction before the affinity to either of tho parties. It is not denied that hearing of the cause, which still stauds for hearing." this applies to a justice. 21 Wend. 64. And therefore,