ernor-general on the ground that Parliament had deliberately withheld from the Indian judges that independence of the executive, which, on a solemn occasion, was formally conferred upon the English judiciary.

TWO DECISIONS of the Supreme Court of the United States upon the subject of insurable interest in life insurance have come to our notice since the publication of our editorial comments in the JOURNAL of last week. Both decisions were rendered at the late term of the Supreme Court, and have not yet been reported. In the first case,-Connecticut Mutual Life Insurance Co. v. Schaeffer.-the action was brought on a policy of insurance on the joint lives of George F. and Francisca Schaeffer (then husband and wife), payable to the survivor on the death of either. In 1870 they were divorced, and alimony was decreed and paid to the wife; and there was never any issue of the marriage. They both subsequently married again, after which, in 1871, George F. Schaeffer died. This action was brought by Francisca, the survivor. The company resisted payment on the ground, among others, that the insurable interest by each in the life of the other ceased by reason of the divorce. The court, however, held that a life policy, originally valid, does not cease to be so by the cessation of interest in the life assured. The opinion in this case contains an exhaustive review of the subject of wager policies. In the second case,-Ætna Life Insurance Co. v. France,-the court was called upon to consider the question as to whether a sister has an insurable interest in the life of a brother upon whom she is not dependent for support. The action was brought by David France and Lucetta P., his wife, to recover the amount of a policy of insurance for ten thousand dollars issued on the life of Andrew J. Chew, of Philadelphia, dated September 13, 1865, and payable to the said Lucetta. One ground of defense was, that Lucetta P. France had no insurable interest in her brother's life. Lucetta was Chew's sister, and this fact was stated in the policy; that, at the time the policy was issued, she was married to the other plaintiff, David France, and in no way dependent on her brother for her support; that the latter was earning his living as a ladies' shoemaker, and was of small means. Evidence was given tending to show that Mrs. France had, at different times, loaned money to her brother to an amount of some two thousand dollars, and lent him four hundred dollars more in September, 1865; that a previous policy of like amount with the present had been obtained of the defendant company on Chew's life for his sister's benefit in June of the same year, and that at the time of issuing the policy now in suit he was unmarried, but was engaged to be married, and was in fact married the next day. The premiums were received by the company from Chew. The court held the interest sufficient, and affirmed the judgment obtained by the plaintiff below.

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THE CIRCUMSTANCES, under which a solicitor is justified in acting professionally against a former client, are discussed in a recent English case,In re Electric Power Co., 25 W. R. 603. It is there held that, notwithstanding the rule that a solicitor must not use information acquired in his professional capacity in any subsequent proceedings against his former client, a solicitor, who has acted in the formation of a company and been discharged, may act for a petitioner to wind up the same company, when all the facts upon which the petition is based might have been ascertained by any person in the position of the petitioner. The principal English cases bearing on the question are Cholmondely v. Clinton, 19 Ves. 261, and Davies v. Clough, 8 Sim. 262. In the former case Lord Eldon remarked: "A most honest man, so changing his situation, might communicate a fact appearing to him to have no connection with the case, and yet the whole title of his former client might depend upon it. It appeared to me, and to all the judges, that nothing could be more dangerous than to permit a solicitor employed by A, in a cause between him and B, to leave A while still willing to retain him, and enter into the service of B." In the latter case the Vice-Chancellor said: "For my own part I can not conceive anything to be a greater breach of professional duty than for a solicitor, first of all, as the solicitor of one party, to carry on a negotiation for the benefit of that party and have it completed, and, afterwards, to act as the solicitor for other parties, in order, by his own personal knowledge of the transaction, to destroy that which he had done for his former client; and that, not because he was discharged by his former client, but because he made an exorbitant demand, which was resisted and ultimately defeated; so that he virtually discharged himself. Such conduct appears to me to be such a flagrant breach of duty that the court is bound to interfere." The partner of the solicitor in question was also restrained, in this case. See also Panatt v. Panatt, 2 De G. & S. 258; Beer v. Ward, Jac. 80. These were all applications for injunctions to restrain the solicitors from changing sides. The common-law courts used to punish by fine and imprisonment such action on the part of their attorneys. It certainly seems most unprofessional for an attorney to appear as the representative of different interests at different periods in the same case. In England, at least. he would not be allowed to do so, were the matter brought to the attention of either court. Our attention has not been directed to the American cases upon this subject; but if any attorney in this country is desirous of appearing on more than one side of a law-suit, we would advise him to imitate a certain French legislator spoken of in a Paris paper: An honorable member rises in the Assembly to speak, wearing a huge waxen nose. The speaker-"The honorable gentleman will take off his false nose and come to order." "Excuse me, Mr. Speaker, but I have occasion to violate my pledges to my constituents, and do not wish to be recognized."

UTAH DIVORCES are a very unsafe means for severing the matrimonial knot. In Indiana, in the Dearborn circuit, the legality of one of these cases was recently brought into issue, and the decision, we are informed, has spread considerable dismay among such of the citizens of that state as have endeavored to set aside the marriage contract by the aid of a Chicago "law agency." The charge in this case was fornication, and was brought by the first wife of the defendant. In his defense he produced a decree of divorce from this wife, granted by a Utah court. In obtaining this divorce, he had never, it was proved, been nearer than Chicago to the court which allowed it. Such a divorce, the judge instructed the jury, could not avail him, and he was therefore convicted. The Territorial Legislature of Utah, we learn from the charge of the court, has the power under the Constitution of the United States and the laws of Congress to enact laws affecting the citizens of said territory; but the operation of such laws can not extend beyond its geographical limits. In other words, citizens residing beyond the limits of that territory are not, and can not be, affected by such laws until they place themselves within the sphere of their operation. It has no power to pass a law providing for the severance of the bonds of matrimony between a husband and wife who reside beyond the limits of the territory at the time the decree is granted, and who never resided within such territory. But where a husband resides bona fide in one state or territory, and the wife in another, either state or territory, as the case may be, has authority in respect to the marriage relation to dissolve it, so far as the party resident within its limits is concerned; and to make the decree dissolving the marriage bond effective, it is not necessary that the party defendant be a resident of the state or territory where the decree is granted. The residence bona fide of the plaintiff would vest the court with jurisdiction, not only of the person of the plaintiff, but the subject of the action also. To constitute a residence, the party must be domiciled within the state or territory where he seeks the divorce. If he is so domiciled, with the intention of remaining, and has abided there the length of time required by the statute law of the place necessary to constitute such residence (if there be such a law), this would vest him with the right to bring a suit for divorce for any of the causes for which a divorce may be decreed under the law of the state or territory where he has established his residence as aforesaid. The statute law of Utah Territory concerning the granting of divorces provides that, if a person, in a petition for divorce, "upon oath or affirmation," says he "wishes to become a resident of such territory, the court may decree a divorce for any of the causes enumerated in said statute, on being satisfied that the "application is made in sincerity and of his own free will and choice, and for the purposes set forth in the petition." A divorce obtained under this statute, the court held, would be invalid, for the court could not obtain jurisdiction in such a manner.

THE JURISDICTION OF STATE COURTS IN CASES ARISING UNDER THE PATENTRIGHT LAWS.

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Congress has power under the Constitution (art. 1, sec. 8) "to promote the progress of science and useful arts, by securing to inventors the exclusive right to their * discoveries." The U.S. Rev. Stats., sec. 711, provide, in substance, that the jurisdiction of the courts of the United States shall be exclusive of the courts of the several states, in all cases arising under the patent-right laws of the United States; and sec. 699 provides, in substance, that an appeal from, or writ of error to, the several courts of the United States, lies to the Supreme Court of the United States in any case touching patent right, without regard to the sum or value in controversy. It is plain from these provisions that, in all cases arising under the patent-right laws, the controversy can be determined by the federal courts alone, and the litigants have a right to a review of the decision of the circuit court without regard to the sum or value in controversy. Now, the only 66 cases" provided for in terms by the statutes are, (1) where the officers charged with the duty of issuing patents decide against an applicant, and he brings a bill in equity in the circuit court to determine his right to a patent, with the right to appeal; (2) in cases at law or in equity, where the substance of the complaint is infringement or interference. Rev. Stats., sec. 4909 to 4921. The gist of the controversy in both instances, however, is an interference between patents, or a conflict as to the nature and extent of patented inventions; the parties being either those holding patents, or a patentee and one applying for a patent. In such cases or controversies, there is no conflict of authority as to the exclusive jurisdiction of the federal courts.

But suppose a patentee sells or assigns to another a territorial interest in his patent, as for example the right to use, manufacture and sell the patented machine in the State of Illinois, and takes in payment the note of the purchaser for $300. The patentee brings suit on this note in a state court, and the maker defends, setting up that the patentright interest was the only consideration; that the patent was void for want of novelty; that it was not a patentable invention; that the invention covered by the patent had been in public use before the patent was issued; that there was a prior patent for the same invention, and so on,the gist of the defense being a want or failure of consideration. In a case of this kind, can a state court inquire into the validity of the patent, for the purpose of determining the question of want or failure of consideration? In other words, can the state court determine the validity of a patent for an invention whenever the question arises collaterally as one of the issues in a case? The writer has found no decision of this precise question by the United States Supreme Court. The state courts have decided it, some for, others against, their own jurisdiction; the greater num

ber, however, following the case of Rich v. Atwater, 16 Conn. 409, which sustains the jurisdiction of the state courts. There is a full discussion and citation of authorities to sustain that view in Middlebrook v. Broadbent, 47 N. Y. 443; Merserole v. Union Paper Collar Co., 6 Blatchf. 356, and Goodyear v. Union India Rubber Co., 4 Blatchf. 63,-these last cases being by the United States Circuit Court, Southern District of New York. The principle upon which these cases really turn is, that the state courts have jurisdiction of all cases and legal questions wherein such jurisdiction is not prohibited in express terms by the Constitution of the United States, and by the laws passed in pursuance of such prohibition. These cases hold, in effect, that "cases arising under the patent laws" are actions concerning "interfering patents," and where a "patent has been refused," and none other...

This narrow construction of the law is hardly satisfactory, nor is it likely to be followed by the United States Supreme Court, judging from its recent dictum on this question, and its construction of the "commerce clause" of the Constitution and the extent of federal power under it. Cannon v. New Orleans, 20 Wall. 577, and cases referred to. In the matter of patent rights, Congress has power to promote the progress of science, etc., by securing to inventors the exclusive right to their discoveries; and it has provided that the federal courts shall have "exclusive jurisdiction of cases arising under the patent laws." The language of the statute is construed to exclude the power of the state courts, exercised directly or collaterally, in the cases of Elmer v. Pennel, 40 Me. 434; Dudley v. Mayhew, 3 Comst. (N. Y.) 14; Ex parte Robinson, 2 Bissell, 386; Curtis on Patents, sec. 495-6; and in Claflin v. Houseman, 93 U. S. 130, there is a dictum by Bradley, J., holding that the correct rule on this subject is laid down in Elmer v. Pennel, and Dudley v. Mayhew. The reasons upon which these latter cases are based may be summed up about thus: The real value of the patent to its owner lies in the right to sell territorial rights, and to license the use of the invention to others. The government, after proper proceedings, (perhaps an appeal by the applicant to the Supreme Court of the District of Columbia, or by bill in equity in which he has compelled the Commissioner of Patents to issue his patent), has stamped the invention as new and useful. The subject-matter of patents is, by the Constitution, within the exclusive control of Congress, and there is no express power given by Congress to the state courts in the matter. But, when the patentee undertakes to exercise the right conferred by the patent, by selling rights or granting licenses, the state courts may, in every sale or license, declare that there was no consideration because the patent is invalid, if the rule in Rich v. Atwater is correct. This would clearly nullify the privilege or monopoly conferred by the patent; and the patentee has no redress, because sec. 699 of the Revised Statutes gives no right to an appeal from, or writ of error to,

the supreme court of a state, and the right of appeal in such cases is statutory. Take the case first put. The patentee sues on his note, and the defense made is want of novelty. The court reasons that this is not a case arising under the patent laws, but a suit on a note, and a defense of no consideration, for want of novelty in the patent. The court decides the patent void, and gives judgment for defendant. This may be done in every sale, contract, or license, made or entered into in the United States; and the patentee can never get the question of novelty before the United States Supreme Court, unless he can get into litigation with the resident of another state, and the sum in controversy is sufficient for an appeal. Thus, the sale, license, or other beneficial use of the invention would be under the control of the state courts, and the patentee would be protected by federal authority in the mere possession of the printed document signed by the commissioner, and nothing more. The principle asserted in opposition to the jurisdiction of the state tribunals is, that the general government intends to protect the patentee in the beneficial use of his invention; that wherever it becomes necessary to construe the patent, either by comparison with other patents, or with other machines (if the patent is for a machine), or to determine whether the so-called invention was patentable, or to decide any similar question, then there is a "case arising under the patent laws," and the federal jurisdiction is exclusive. The suggestion that, if such a defense as that referred to, supra, is not permitted in the state courts, a party who has purchased a worthless patent right is without remedy, is met by the decision in Mowry v. Whitney, 14 Wall. 439, in which it is said that, if any person is injured by the existence of a patent wrongfully issued, or where such patent has been issued upon false suggestion, he may have a writ of scire facias, with the consent of the attorney-general, to have such patent repealed; and the court goes on to say: "It would seriously impair the value of the title which the government grants after regular proceedings before officers appointed for the purpose, if the validity of the instrument by which the grant is made can be impeached by any one whose interest may be affected by it, and would tend to discredit the authority of the government in such matters." The case before the court was an action to repeal a patent, and the objection was that the government had not been made a party.

Upon the whole, the relative powers of the state and federal courts on this question are not very clearly defined by any decision which will be, at present, generally accepted and acted upon by the others; such at least is the judgment of the writer from his investigation of them. W. C., JR.

AN ESSAY upon the Rights and Liabilities of Married Women under the Laws of Ohio, by Jabez E. Stevenson, of the Cincinnati Bar, has been received by us. It was read be fore the bar association of the latter city at one of their meetings, and is prepared with care. Thirty-six Ohio Statutes, and nearly one hundred cases upon this branch of the law are cited in the discussion.

ATTACHMENT - COMPOSITION PROCEEDINGS.

IN RE SHIELDS.

United States District Court, District of Iowa, May Term, 1877.

Before Hon. JAMES M. LOVE, District Judge.

Where an involuntary petition in [bankruptcy is filed against an alleged bankrupt, and, prior to an adjudication thereon, composition proceedings are instituted and a composition had with the creditors of such alleged bankrupt, it seems such composition will not dissolve an attachment issued and levied within four months from the date of filing such petition as against a creditor who took no part in such composition proceedings.

September 14, 1875, Armill brought an action in the District Court of Iowa in Scott County against Shields by attachment, and upon the same day levied upon certain personal property of Shields. Immediately thereafter, certain creditors of Shields filed an involuntary petition in bankruptcy against Shields, and upon the same day Shields applied for a composition meeting under the provisions of section 17 of the act of Congress, entitled "An Act to amend and supplement an act entitled 'An Act to establish a uniform system of bankruptcy throughout the United States, approved March 2nd, 1867,' and for other purposes," approved June 22nd,1874. A meeting was called under the direction of the court for that purpose. On the 20th day of October, and prior to the convening of said composition meeting, Armill obtained judgment in the state court against Shields, and a special execution was authorized to be issued against the property attached. After the rendition of the judgment aforesaid, said meeting of creditors was held, at which said Shields proposed a composition with his creditors, which was duly accepted and confirmed by the requisite number of creditors, and upon hearing before the court approved and ordered recorded as provided by law.

Shields was not adjudged bankrupt, nor was any assignee appointed, nor any assignment made of his estate. Armill had notice of all proceedings in the court of bankruptcy, but took no part therein.

Armill refused to accept payment under the terms of the composition, but threatened to issue execution upon his judgment and sell the attached property; and thereupon Shields filed this bill in the court of bankruptcy, asking that Armill be enjoined from proceeding under his judgment.

Brown & Campbell, attorneys for Shields; Stewart & White, attorneys for Armill.

LOVE, J.:

The precise question in this case is, whether or not a composition under the bankrupt law, without an adjudication and assignment, operates to displace or dissolve an attachment in a state court, levied within four months of the proceedings in bankruptcy.

There is nothing in the amendment of the bankrupt law providing for compositions, that in express terms affects attachments in the state courts. The original act, which is still in force, provides that the "assignment shall relate back to the proceedings in bankruptcy; and thereupon, by operation of law, the title to all the bankrupt's property and estate, both real and personal, shall vest in said assignee, although the same shall then be attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of said proceedings."

There is no doubt that the attachment in this case would have been dissolved, if the composition had been consummated after an adjudication and assignment;

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not, however, by virtue of the composition, but in consequence of the adjudication and assignment. There was in fact no adjudication or assignment. It can not be claimed, therefore, that the attachment was displaced by the very terms of the law; but the complainant insists that the composition operated to produce the same result. The argument of the complainant and of the which he cites is, that the composition extinguishes the debt, and that no atachment lien can continue after the debt is discharged. This argument, manifestly, proves too much; for by the same reasoning all other liens, as well as attachment liens, would be destroyed by the composition. The composition, like a regular discharge, releases the debtor from the personal obligation to pay his debts; but neither the one nor the other affects the creditor's rights in rem, or his security by valid and subsisting liens. On the contrary, the bankrupt law in express terms preserves to the creditors all valid liens upon property, and to that extent undoubtedly keeps his debt alive. To this, the solitary exception is the case of attachments levied within four months of the commencement of the proceedings in bankruptcy, and this not by implication or inference, but by the express terms of the law.

Now, in my judgment, the composition clause of the law should receive a strict construction, because it is in plain derogation of common right. It compels the dissenting minority of creditors to accept just so much upon their claims as the debtor and the requisite majority see fit to resolve that all shall accept. It takes from the minority the common right of making their own terms with their debtor, and releases the obligation of the latter to them against their will, and upon terms imposed by the majority. Certainly, therefore, the provisions of this clause should not be extended by construction to embrace more than the words clearly and manifestly import.

Let us consider the matter from another point of view. The debtor and the required majority of creditors, without waiting for any adjudication, and before it is judicially determined that the debtor is insolvent, enter into an agreement of composition by which it is stipulated that the debtor shall pay a certain per cent. upon his indebtedness to those who dissent as well as to the contracting creditors, and the bankrupt law annexes a certain legal consequence to this agreement. The law provides that, by virtue of this composition, the debtor shall be discharged from all personal obligation to pay his debts, beyond the stipulated sum. This clause of the law makes no provision whatever as to the displacement of liens, whether by attachment or otherwise. The basis of this adjustment is covenant. All the creditors are parties to it; the majority by their own voluntary assent, and the minority by operation of law.

But it is contended, that is to be treated as precisely equivalent to a proceeding in which the debtor is regularly adjudged to be insolvent and required to surrender all his property to his creditors, and in which the court further decides that the debtor is by misfortune and without fraud a bankrupt, and therefore entitled to a full discharge from personal liability to his creditors. As in the latter case certain attachments are by the express terms of the law dissolved, so in the former, attachments in the same category are to be considered displaced without any express provision whatever to the same effect. This position does not seem to me to be logical. I should say rather that attachments within the four months are dissolved by the assignment, because the law provides that they shall be; and attachments in the same predicament are not displaced by a composition, because the law does not provide that they shall be so affected.

Again, have creditors with attachment liens within the four months a right to participate in the composition meeting? Judge Treat, in Re Scott, Collins & Co., 4 Cent. L. J. 29, held, upon what seems to me very solid grounds, that attaching creditors have no right to participate in and vote at the composition meeting. If so, it seems clear that such creditors should not be in any wise affected by the results arrived at by the parties to the composition.

This question has been variously decided by the Supreme Court of Iowa and Maryland on the one side, and by Judges Treat and Lowell on the other.

It seems to me that the Iowa case, is not at all conclusive upon this point, because the court expressed themselves as content to follow the decision of the Supreme Court of Maryland, "without entering upon an examination and determination of the question." See Smith, Stebbens & Co. v. Bernhard Engle et al., 9 Chic. L. N., 47.

Turning to the case of Miller v. McKensie, and others decided by the Supreme Court of Maryland, and reported in National Bankruptcy Register for April 1, 1876, one can not but be struck with the unsatisfactory character of the reasoning of the court in support of its decision. The court takes no notice whatever of the manifest distinction between the attaching creditor's claim in rem and in personam, but insists upon the proposition that the composition extinguishes the debt and therefore discharges the attachment. With equal justice might the court say that the final discharge, which releases the bankrupt debtor from personal liability, necessarily discharges all liens upon property by attachment or otherwise, because there can be no lien where the debt is extinguished; a proposition true enough as a general principle, but utterly fallacious when applied to the subject of liens, as recognized by the bankrupt law.

Perhaps the true answer to the argument of the Maryland court is, that the discharge or composition in bankruptcy affects rather the remedy than the debt itself. It is a defense that must be set up specially in bar of the remedy, like the Statute of Limitations; and it is, perhaps, not accurate to say that the discharge or composition extinguishes the debt.

It seems to me that the reasonings of Judges Lowell and Treat touching this question are solid and conclusive, and without the least disparagement to the state supreme courts. I consider those learned judges the safer guides, because, while the attention of the state supreme courts to the bankrupt law is casual and infrequent, that enactment has necessarily been to the judges referred to a subject of constant reflection and profound study.

SECURED ON REAL ESTATE.-In equity, a mortgage or deed of trust is only a lien thereon, and the benefit of the estate remains in the mortgagor. An agreement to extend the time of payment of a debt so secured is not within the statute of frauds, and need not therefore be in writing. APPEAL from United States District Court.

This was an appeal from a decision of the United States District Court for the Eastern District of Missouri, sustaining a demurrer to the bankrupt's answer to a petition of Calvin F. Burnes for an order on the bankrupt to deliver possession of certain property. The facts are fully stated in the opinion of the court. Wm. R. Walker, for petitioner; M. Kinealy, for respondent.

DILLON, Circuit Judge:

The material facts in this case are briefly these: Some years ago, about the year 1870, the bankrupt, Betts, purchased a house and lot in this city, 2929 Olive Street, of the petitioner, Calvin F. Burnes, and secured a portion of the purchase-money by deed of trust, with power of sale on the part of a trustee on default of payment. The interest was payable at the end of each period of six months. In 1876 Betts was adjudicated a bankrupt, this mortgaged debt to Burnes remaining unpaid. Barnes came into the court of bankruptcy, proved his debt as a secured claim, and afterwards applied to the district court, without any express notice to the bankrupt, and on the record here, I may say, without any notice (as the demurrer admits the allegation of the bankrupt in this behalf) of his intention to apply for an order permitting the trustee to sell the property; and such an order was passed by the district court. Thereupon the trustee advertised the property for sale under the deed of trust, and it was sold and purchased by the beneficiary, Burnes, for the sum of five thousand dollars. The sale was reported to the bankruptcy court; the assignee being advised of it, and consenting to its confirmation, it was confirmed, and the trustee and assignee, by the direction of the district court, joined in executing a deed under the trust sale to the beneficiary for the property.

The property was occupied by the defendant as a homestead. Afterwards, the defendant remaining in possession and refusing to deliver possession to the purchaser, Mr. Burnes, the latter filed his petition in the district court in the bankruptcy proceeding, setting forth the facts which I have stated, and asking that an order issue from that court upon the bankrupt to deliver the property to him, or to appear and show cause why he should not be thus ordered. Thereupon the order to show cause was served on the bankrupt, and he appeared in the district court and filed an answer to the effect: First,-denying the jurisdiction of the district court in the matter, alleging that this property was his homestead, and therefore it was exempt under the bankrupt act; that this property was not an asset of the estate that passed to the assignee in bankruptcy, and that the district court as a court in bankruptcy had nothing to do with it, and had no power to make an order in respect of it. Second.-The answer in substance is this: "I executed my note payable with interest semi-annually, at the end of each six months, and that subsequently Mr. Burnes, the beneficiary, and myself made this arrangement, viz.: Mr. Burnes says, 'If you will pay the interest in advance on this loan, I will agree to extend the principal of the debt that long,' and he agreed to it;" and then he alleges that he has paid the interest in advance on this debt, and had before this call paid it in advance, down to and beyond the first day of November, 1877, whereby the principal sum of that debt was extended to that time, and therefore the debt was not due at the time when