RECENT AMERICAN DECISIONS. SUPREME JUDICIAL COURT OF MAINE.* MORTGAGE. 1. The acceptance of a quitclaim deed of the grantor's right to redeem an estate under mortgage does not impose upon the grantee an obligation to pay the mortgage debt and redeem the estate; and he may afterward become the assignee of the mortgage without thereby discharging it. Randall v. Bradley, 43. 2. Twenty years' possession under a mortgage is presumptive evidence of a foreclosure. lb. NUISANCE. 1. When an erection itself constitutes a nuisance, as a building in a public street obstructing its safe passage, its 'removal or destruction may be necessary for the abatement of such nuisance. Brightman v. Bristol, 426. 2. When the nuisance consists in the wrongful use of a building, harmless in itself, the remedy is to stop the use. Ib. 3. When the act done or the thing complained of is only a nuisance by reason of its location and not in and of itself, the court will not order the destruction of what constitutes the nuisance, but will require its removal or cause its use, so far as such use is a nuisance, to cease. Ib. 4. A stationary engine, though declared in certain conditions to be a nuisance by R. S., ch. 17, § 17, is within the protection of the law, and if adjudged to be a nuisance by a court of law, is to be removed as provided by section 20, at the expense of the owner; but no law sanctions its destruction by a mob. Ib. 5. Buildings, the erection of which under conditions is prohibited by R. S., ch. 17, § 5, are still, not being nuisances per se, within the protection of the law, and when destroyed by a mob, the town is liable to indemnify the owner for three-fourths the loss or injury sustained, he being within the provisions of R. S., ch. 123, §§ 7 and 8. Ib. OFFICER. out of a transaction forbidden by statute, cannot apply an unappropriated payment to the illegal items without the consent of the debtor. Phillips v. Moses, 70. 2. In the absence of an appropriation by the debtor, or with his consent, the law will apply the payment to the demand which it recognizes, and not to that which it prohibits. Ib. 3. The debtor's consent to apply payments to illegal items may be express or inferred from the course of dealing between the parties, his acts or omissions evincive of consent, and all the circumstances of the case; and such consent, once given, cannot be revoked, unless the creditor agrees to it. Ib. PROMISSORY NOTES. 1. A note given for no other purpose than to aid in the suppression of a criminal prosecution is given for an illegal consideration. Morrill v. Goodenow, 178. 2. The defense of illegality is not avoided by putting a seal on the note. Sealed instruments are open to this defense as well as instruments not under seal. Ib. 3. When it appears from the plaintiff's own showing, that the note declared on was given for an illegal purpose, as, for instance, to aid in the suppression of a criminal prosecution, the court may properly order a nonsuit. Ib. 4. A note made by a firm and payable to one of its members is valid in the hands of an indorsee. Hapgood v. Watson, 510. 5. A gave to B a negotiable note; B drew an order on A to pay to C or order the amount of the note. In answer to a letter (not in evidence) from C, A writes, "the order * * * to pay you the note is good;" C indorsed the order to D, who sues A, as an acceptor thereon. Held, that the order may operate as an assignment of the note, but not as an independent negotiable instrument upon which an action can be maintained in the name of an indorsee. Noyes v. Gilman, 589. RAILROAD. 1. The act of February 4, 1872, chap. 32, which pro 1. The acts of an officer de facto are valid as to third hibits any railroad company from constructing or parties. Belfast v. Morrill, 580. 2. Where the law requires an election to be by joint ballot of two branches, held, that an election by the separate action of each branch is sufficient to give at least color of title to the office. Ib. 3. When one of a board of officers is not legally elected, but is an officer de facto, he may legally join in the action of the board with those who are officers de jure. Ib. 4. Thus: the mayor and aldermen of Belfast were ex officio overseers of the poor; the city clerk, who was not the mayor nor an alderman, was irregularly elected as an overseer, and chairman of the board, and joined in the action of the board authorizing the supplies to the pauper, and gave the written notices to the defendant town. Held, (1) that the city clerk legally joined in the action of the board, and might be counted as one toward constituting a required majority; (2) that his notices to the defendants, and their replies thereto, he having been known and recognized by them as an acting overseer, were legal and binding. Ib. PAYMENT. 1. A creditor, having two demands against his debtor, one of which is lawful, and the other arises From 65 Maine Reports. maintaining any track or running any engines or cars on any street or highway so near any depot of any other railroad as to endanger the safe and convenient access to such depot and the use of it for ordinary depot purposes, being only a police regulation for the safety of the public, no constitutional objection exists against its application to a road chartered before its passage. P. S. & P. R. R. Co. v. B. & M. R. R. Co., 122. 2. The statute requiring railroad corporations to inclose the land taken for their road with fences is a police regulation, designed to secure the safety of the public travel and transportation, and is obligatory, as such, upon all railroad corporations, whether chartered before or after its passage. Wilder v. Maine Central, 332. 3. A parol agreement between a railroad company and an adjoining owner, for the removal and discontinuance of a fence on the line of the railroad, does not run with the land, and cannot, therefore, bind his grantee. Ib. 4. Where a horse escaped from his owner's land on to an adjoining railroad and was killed by the railroad company's locomotive, held, that the mere fact of his turning his horse upon his land where there was no fence between it and the railroad, when it was the legal duty of the railroad company to build it, was not proof of contributive negligence on his part. Ib. SHIPPING. 1. An action cannot be maintained by the owners of one vessel against the general owners of another vessel for a collision caused by the fault of the latter vessel, she being at the time of the injury in the possession and control of the master as owner, pro hac vice, sailing her "on shares." Somes v. White, 542. 2. The personal liability of general owners of vessels for a master's defaults, whether arising ex contractu or ex delicto, depends solely upon the fact whether the master is the charterer and owner, pro hac vice, or not. Ib. TOWN. 1. One suffering damage by reason of the neglect or unskillfulness of the selectmen of the town or the physician employed by them, in performance of the duties imposed upon town officers by Revised Statutes, chap. 14, in relation to the small-pox, has no remedy against the town therefor. Brown v. Vinalhaven, 402. 2. Thus: on the breaking out of the small-pox in Vinalhaven, D. C. was employed in the pest-house by order of the selectmen, remained there three weeks, and was then allowed by them to depart infected in person and clothing, in consequence of which the plaintiff, an inmate of D. C.'s house, caught the infection, lost the sight of an eye, became much disfigured and suffered great damage. Held, that the town was not liable. Ib. When not exempt.- A bankrupt, against whom judgments were rendered before his bankruptcy, upon debts contracted prior to the adoption of the constitution of North Carolina, is not entitled to his homestead exemption under the act of Congress of March 3, 1874, as against such judgments. When the homestead exemption of such bankrupt has been allotted, the judg ment creditors are entitled to have such allotment set aside, and their judgment liens enforced. (U.S. Dist. Ct., W. D., N. C.) In re Shipman, 14 Nat. Bankr. Reg. 570. JURISDICTION. Of State court: payment by one insolvent to attorney. - A State court has jurisdiction of an action brought by an assignee to recover money paid to a creditor as a preference. If the defendant has admitted that a statement made by the bankrupt on his examination is true, the statement may be proved by the testimony of any one who heard it. A statement made by the bankrupt as to his condition at the time of borrowing money is inadmissible, for it has no bearing upon the question whether the creditor knew, or had reasonable cause to believe him insolvent on a subsequent day. If an insolvent debtor pays a retainer to counsel to assist him in the proper discharge of his duty in court under the bankrupt law, the payment is valid, but if he makes the payment with a view to prevent his property from being distributed under the act, or to defeat, or in any way impair, hinder, impede or delay the operation of the bankrupt act, and the attorney knows that he is insolvent, and receives the money for such purpose and with knowledge of the intent, the payment is void. (Sup. Ct., Mass.) Goodrich v. Wilson, 14 Nat. Bankr. Reg. 555. MECHANIC'S LIEN. How affected by bankruptcy proceedings.-A mechanic's lien which derives its existence wholly from a State statute, and the continuance of which is, by such statute, made dependent upon the commencement of a suit within a prescribed period, is not preserved as a valid incumbrance on the property when no suit is commenced in the State court, and no step taken in the bankrupt court equivalent to such suit within the time limited by the statute for the preservation and enforcement of the lien, although the proceedings in bankruptcy are commenced within that period. A lien claimant can, as an equivalent for commencing a suit in a State court, prove or assert his lien in the bankruptcy proceedings within the time limited by the statute creating the lien. To preserve a statutory lien, dependent for its continued existence upon observance of the terms of statute, those terms must be complied with by performance of the required act or its equivalent. (U. S. Dist. Ct., E. D., Wis.) In re William Brunquest, 14 Nat. Bankr. Reg. 529. PLEADING. 1. Of discharge: form of.- A plea of a discharge which does not set forth a copy of the discharge is bad. A plea of a discharge which does not aver what court adjudged the defendant to be a bankrupt, or granted him his discharge as such, nor set out the facts upon which any court would acquire jurisdiction so to do, is bad at common law. A plea of a discharge should conclude with a verification. A plea of a discharge may be amended. (Sup. Ct., N. J.) Stoll v. Wilson, 14 Nat. Bankr. Reg. 571. 2. Statement of number of creditors, etc.- A petition in involuntary bankruptcy that alleges upon belief, without charging either information or knowledge, that the petitioners constitute the requisite proportion of creditors, is sufficient. (U. S. Circ. Ct., N. D., N. Y.) In re Mann, 14 Nat. Bankr. Reg. 572. PRACTICE. 1. Omission to enter order: second petition. If there is an omission to enter an order refusing a discharge, the bankrupt court may make it nunc pro tune if no rights of third parties have intervened which can be prejudiced by making the record speak the truth. If a party has contracted new debts, since the filing of the first petition, he may file a second petition in bankruptcy. (U. S. Circ. Ct., Mass.) In re Drisco, 14 Nat. Bankr. Reg. 551. 2. In respect to attachment proceedings.— An attachment suit may be stayed on the application of the bankrupt, although the attachment was issued more than four months before the commencement of proceedings in bankruptcy. (Sup. Ct., Mass.) Ray et al. v. Wight et al., 14 Nat. Bankr. Reg. 563. 3. Effect of filing petition against copartner.— The mere filing of a petition in bankruptcy by one partner against his copartner does not prevent the latter from bringing a suit on his individual claim and prosecuting it to judgment. (Sup. Ct., Penn.) Booth v. Meyer, 14 Nat. Bankr. Reg. 575. CRIMINALS UNDER FEDERAL LAW - MAY אן TRICT WHERE CONVICTED. BOOK NOTICES. Practice, Pleading and Evidence, in the Courts of the State of California, in General Civil Suits and Proceedings: Being the Code of Civil Procedure of California, as amended up to the close of the twenty-first session of the legislature (1876); with full cross-references, and annotations from the Reports of the various Courts of the United States, and adapted to all States that practice under a Code. By E. F. Buttemer Harston, of the San Fancisco Bar. San Francisco: A. L. Bancroft & Co., 1877. THE short title of this work, which would indicate a N the habeas corpus case of Ex parte Karstendieck, recently decided by the Supreme Court of the United States, the petitioner was convicted, May 1, 1876, in the Circuit Court of the United States for the District of Louisiana, of conspiracy, under section 5440 of the United States Revised Statutes, and sentenced to imprisonment in the penitentiary at Moundsville, general treatise upon the subjects of practice, pleadW. Va., which had been designated by the Attorney-ing and evidence, is somewhat misleading. It is true General, under the statute, as the place for the imprisonment of persons convicted of crime against the United States, in the District of Louisiana. The statute penalty for the offense in question was fine and imprisonment for not more than two years." It was claimed that the sentence was illegal and void, (1) as the law only provided for imprisonment, and imprisonment in the penitentiary involved hard labor, which was in excess of the statute; (2) that, by the act of Congress, imprisonment must be within the State or district where the offense is committed, if there is a suitable prison open to the United States, and there is such a prison in Louisiana. It was also objected that the designation by the Attorney-General of a penitentiary alone was invalid, and further, that the order for petitioner's confinement was void, because the Legislature of West Virginia had never given its consent to the use of the penitentiary in question for the punishment of United States criminals. The court held all the claims and objections untenable, and that the sentence was valid. BENCH AND BAR. Judge Williams, of the Supreme Court of Pennsylvania, died in Pittsburgh on Monday last, of heart disease. that we have here a volume on those subjects; but it is simply an annotated Code of Procedure of California, resembling, in many respects, our own well-known Wait's Annotated Code. The Code of Civil Procedure of California, however, covers a more extensive field than that of New York, being designed to embrace every thing relating to the civil courts and their offices, and to procedure in such courts or before such officers. It is, in fact, the completed work of our own commissioners, slightly altered, to adapt it to the customs, conditions and circumstances of California, and, of course, furnishes the frame-work of the whole law of practice, pleading and evidence, as prevailing in that State, and in such other States as have adopted the completed code. Therefore, the short title of the book before us, while not conveying an accurate idea of what the work is, is perhaps not a misnomer, and the volume will be found probably to be the best and most useful work on these subjects published in California. The work, of course, follows the same plan of the Code which forms its ground-work; but there are inserted certain matters which are provided for by statutory and other law outside of the Code. These insertions consist of a note on divorce, and one on habeas corpus and writs of error. At the commencement of Article II, of chapter IV (§ 607, etc.), upon the "Conduct of the Trial," is a summary of all sections of the Code hav Mr. John Proffatt, author of "Woman being reference to trial or matters liable to arise thereon, fore the Law," "Jury Trial," etc., is preparing a work on Notaries Public for Sumner Whitney & Co. A correspondent of the Boston Journal says: Justice J. P. Bradley's father was a charcoal burner in Schoharie Co., N. Y. Joseph carted charcoal. He employed his leisure in study, and while the cattle were resting and the men enjoying their recreation, Joseph was digging away at the law. When a young practitioner he made a digest of the New Jersey laws, which is still authority." Judge Smalley, of the United States District Court for Vermont, has resigned, and his resignation has gone on to Washington by the hands of the clerk of the court, B. B. Smalley, Esq. When the resignation is to take effect is known only to the Judge and perhaps one or two others. The names of Judge Poland and of Col. W. G. Veazey are those most talked of at present as his successor. This story is told of Judge Davis: Once at Indianapolis, which was within his circuit, a lawyer named Ketchum was ready when his case was called, but his opponent was absent, and had sent word that he couldn't arrive for an hour or two. Ketchum insisted on proceeding at once. The Judge remonstrated in favor of the absent lawyer, but to no purpose. Well," said he, finally, "if you insist upon going on, Mr. Ketchum, you have, of course, the technical right to do so; but if I were you I wouldn't urge the matter. Over at Springfield, the other day, there was just such a case; the lawyer would insist upon going on with the trial; and so I had to look after the interest of the other party-and, do you know, curiously enough, Mr. Ketchum, we beat him!' Mr. Ketchum concluded to wait. which must prove of great value to those having occasion to use the volume. The annotations seem to have been discreetly made, and to cover the important adjudications of the California courts and those of value in the other States, applicable to that State. The volume is carefully indexed, and is well printed and bound. Civil Malpractice. A Treatise on Surgical Jurisprudence; with chapters on skill in diagnosis and treatment, prognosis in fractures, and on negligence. By Milo A. McClelland, M. D. New York: Hurd & Houghton. Boston: H. D. Houghton & Co., 1877. We should judge this to be a very useful book to a lawyer engaged in a malpractice suit, and no less useful to a physician unfortunate enough to be a party to such a suit. It is the work of a physician, and the arrangement of most of the contents is according to utory negligence, and negligence of physicians and surgeons. It will be seen by this statement of the contents what is the scope of the work. Most of the subjects are merely illustrated by abstracts of cases which have arisen in relation to them in the courts. The cases seem to be carefully selected and accurately stated. In those parts where elementary principles are stated, the author has shown himself familiar with his subject, and expresses clearly and tersely the doctrines of law governing it. The volume will prove an acceptable addition to the libraries of both the lawyer and the physician. THE COURT OF APPEALS DECISIONS. HE following decisions were handed down in the New York Court of Appeals on Tuesday, February 20, 1877: Order affirmed, with costs-In the matter of the application of Edward A. Gardner for a mandamus to the Clerk of the Supervisors of Kings county; People ex rel. McAllister v. Lynch.-Judgment affirmed People ex rel. McCann v. Kilbourn; People ex rel. Lansing v. Tremain. Judgment modified so as to authorize the appellant at any time to apply to the Supreme Court to have the fund delivered to her upon her giving security as mentioned in opinion, and judgment, as thus modified, affirmed, and the costs of both parties in this court to be paid out of the fund in controversy - Livingston v. Murray. -Judgment affirmed, with costs-Johnson v. Morgan; People ex rel Kresser v. Eitzsimmons; Laverty v. Snethern.Judgment of General Term reversed and that of Special Term affirmed, with costs-Odell v. Montross. Appeal dismissed, with costs- The Union Consolidated Mining Co. v. Raht.- Judgment reversed and new trial granted, costs to abide event - Flood v. Mitchell. oner. He was conducted to that part of the prison in which debtors are confined. He complained that he was not conducted to the better part of the prison set aside for "first-class misdemeanants." He was informed that, as he was not a criminal, he could not be accommodated in the part of the prison referred to. It had been supposed that the rooms lately occupied by Mr. Valentine Baker would have been placed at his disposal; but, for the reason mentioned, this could not be done. On the governor's return a better room than the cell in which he had been at first placed was al lotted to him, and no doubt he will receive from that gentleman every attention and courtesy which he has it in his power to bestow. By the prison rules the prisoner is required to cook his own food, if he does not make use of that supplied to him in the prison. Of course, means will be taken to avoid any such necessity. The Bar Association of Cincinnati held a reunion at the Grand Hotel in that city on the 10th inst. The Bar Association of Chicago had $1,031.14 in its treasury on the 3d inst.- The New York City Bar Association on the 13th inst. had a membership of 711 and $7,422 in its treasury.- According to Surgeon-General Gordon's "Trip to Burmah" the Burmese have a very simple and inexpensive proceeding in divorce cases. When a husband and wife wish to separate, they light two candles, with the understanding that he or she whose light goes out first has the privilege of quitting the house with whatever property orginally belonged to him or her." We would recommend Burmah to the Chicago lawyers who procure divorces "without publicity." The Hon. Elisha H. Allen, who has occupied the position of Chief Justice of the Supreme Court of the Hawaiian Islands and Chancellor of the kingdom, for upward of twenty years, resigned that office on the 1st inst., in order to accept the position of Hawaiian Minister resident at Washington. On the 26th of January, the bar of Honolulu met in the hall of the Supreme Court for the purpose of bidding him farewell. The prominent officials of the kingdom, including his Majesty the King (who is a member of the bar), were present, and made appropriate addresses. To read the account of the proceedings, one would almost imagine they had taken place at some New England county seat, and not on a tropical island in the far-off Pacific. The reputation of Judge Allen, however, is not confined to his island jurisdiction. In reference to this circumstance, his Majesty took occasion to remark that "it is an extremely gratifying fact that, during his Honor's incumbency of the position of Chief Justice, the character of our Supreme Court has stood high abroad. Several cases have been tried involving the rights of subjects of foreign governments, wherein the decisions of our court, when referred to and reviewed by the law officers of those governments, have been fully sustained. This is certainly something for a small and weak government to be proud of, and we owe it to the Supreme Court, with Chief Justice Allen at its head.”— The Chicago Bar Association recommend Hon. Thomas Drummond, Circuit Judge of the Seventh Judicial Circuit, for the vacancy on the Federal Supreme Court bench. WE PUBLISHERS' DEPARTMENT. E have just received a neat pamphlet containing the list of attorneys, rules, etc., of the “Legal and Commercial Union," a commercial agency and collection association upon an original plan, under the management of W. L. Strickland, Esq., with its general office in Detroit, Mich. The plan seems to be a good one. Accompanying the list are certificates from governors, judges, etc., as to the reliability of the attorneys representing the association, which indicate that they are of a high order of ability and integrity. ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. Communications on business matters should be addressed to the publishers. The Albany Law Journal. ALBANY, MARCH 3, 1877. CURRENT TOPICS. THE presidential count still impedes business in the national legislature, and it is doubtful if even all the necessary appropriation bills pass the two houses before the termination of the session. In the event of a failure of these bills there will need to be a special session of the next Congress, either provided for by an act of the present one or called under the general law by the incoming president. There has been, however, some measures of general interest before each house. In the Senate a bill for the resumption of specie payments has been reported from the Committee on Finance. This bill does not designate any time for resumption, but merely provides for the retirement of $100,000,000 of treasury notes. In the House a bill reported by Mr. Field, providing for the event of a vacancy in the office of president and vice-president from a failure to elect, was passed. This bill provides that, in case such vacancy happen, the office shall be filled by the President of the Senate; if there be no President of the Senate, then by the Speaker of the House; if no Speaker, then by the Secretary of State. And the person so filling the office shall hold the same until a president shall be elected. The customary adjournment over the 22d of February has interfered with business in the State legislature, so that comparatively little was done during ing the week, the introduction of a bill providing for the attendance of the district attorney of the county in behalf of the people, at investigations made by the Commissioner of Lunacy into the management of lunatic asylums, and the progress of bills for removing the disabilities of married women, and regulating re-insurance by life companies, being the only legislative action having general interest. The Onondaga Bar Association, after having considered the Code of Remedial Justice in three of the largest meetings ever held, voted down the opponents of it by a handsome majority. The action of this Association may fairly be taken as an index of the average professional sentiment of the State regarding the Revision, and while it shows a very respectable opposition, demonstrates the fact that the major portion of the profession favor the measure. The bars of some of the counties are said VOL. 15.- No. 9. to have petitioned for a repeal of the act, but, in fact, such petitions probably represent, or are signed by only a minority of the bar of any county. In the legislature the Revision seems to be gaining strength. The Senate Judiciary Committee devote one hour each day to its consideration, and are carefully going over the whole work, section by section. In the Assembly some of the young Don Quixotes have been hurling lances at it, but not to its injury. Mr. Lang, a well-meaning young man from an up-country district, moved to strike out the appropriation for the Commission, and denounced it "as a fraud and imposition; " but, as he evidently knew very little about the Commission, and less about its work, his speech was set down for what it undoubtedly was an attempt for dramatic effect. Although Dr. Spear is not a lawyer by profession, he has, by his writings on questions relating to the Federal Constitution, demonstrated the fact that he is one of the first constitutional lawyers of the country. His "Religion and the State" was a masterly discussion of a great and vital question, and his contributions to his paper--the Independent — on other constitutional subjects, have attracted deservedly wide attention. The article from his pen which we publish on another page is by far the ablest examination we have yet seen of one of the most important and difficult questions that have arisen under the Constitution. The opponents of capital punishment, taking advantage of the feeling created by the newspaper discussion over the conviction and execution of two murderers, have introduced into the legislature of New Jersey a bill to prevent hanging, which it is said will probably become law. The bill provides that, whenever a jury convicts of murder in the first degree and recommends to mercy, the court shall sentence the prisoner to imprisonment for life. As the recommendation to mercy would be almost uniformly given, there would, under such a law, be for most murders no capital punishment. Whether this would reduce the number of homicides is a matter of doubt. If it did not, it ought not to receive a moment's consideration. The only object of penal laws is to prevent crime, and, in respect to the highest grade of crime, that law which is most effective in preventing is the best, without reference to other considerations. If the infliction of capital punishment is the surest restraint against homicide, the circumstance that it is inhuman, or furnishes a chance for the infliction of irremediable injustice by the punishment of an innocent person, does not afford good ground for doing away with it. This last incident is one not very likely to occur, the cases in which it is said to have occurred being, for the most part, of a somewhat mythical character. |