CRIMINAL LAW.

Upon trial of an indictment for burglary against defendant as principal, the people having given circumstantial evidence tending to prove the crime, and having closed their case, defendant's counsel offered to prove "that one Bouck had been convicted of the same burglary," which was excluded by the court.

Held, by the general term, that it was properly excluded. The People v. James Van Order.

EVIDENCE.

1. Admissions. - Action in the nature of a creditor's bill tried by the court. The complaint averred the recovery of a judgment against defendant Eliason, and the return of an execution unsatisfied, that Eliason had turned over certain property to defendant Yates, who had sold it and received the avails; and it demanded judgment that the property was Eliason's, and that Yates account for the avails. Eliason was served by publication and did not appear. Yates answered, alleging that the property never belonged to Eliason, but to a certain partnership. At the trial plaintiffs first asked for judgment against Eliason, and proceeded to prove his declaration tending to show his ownership of the property. This evidence was objected to by defendant Yates, but was admitted by the court as proper against Eliason. Defendant Yates then offered to prove declarations by Eliason tending to show that the property was not his, which were excluded by the court. The plaintiffs had a report and judgment.

Held, by the general term, that the rulings were right. Judgment affirmed, with costs. Lyon et al. v. Yates & Eliason.

2. Privileged communication. -Action by an administrator to recover a balance of account claimed to be due his intestate. Upon the issue as to whether defendant owed the intestate at a certain time, plaintiff testified that he was an attorney, and that he went at defendant's request, for pay, to get money for her from the intestate. That he did not do it professionally. He further testified, under defendant's objection and exception, that he made the desired communication, and that intestate, said defendant, was owing him $500 or $600: that witness communicated this to defendant, and she did not deny the indebtedness. The objection was on the ground that the communication was privileged. The plaintiff had a report and judgment.

Held, by the general term, that the ruling was right. Judgment affirmed, with costs. Bouton, Adm'r, v. Perkins.

3. Damages.

Action upon a contract, whereby defendant undertook to cure plaintiff's horse of the spavin, for a certain sum. Evidence was admitted, against defendant's objection and exception, of what plaintiff had paid for the hire of another horse, while his own was rendered useless by defendant's treatment; and there was evidence to the effect that, when the contract was being made, plaintiff told defendant that he would have to hire another horse and it would cost him $50 or $60. The plaintiff had a verdict for $72.25. The action was tried in the county court, after appeal from the court of a justice of the peace.

Held, by the general term, that the admission of the evidence to show what plaintiff had paid for the hire of the other horse was error. Judgment reversed. New trial ordered in the county court, costs to abide event. Signor v. Daved & Deyo.

4. Action brought in the court of a justice of the peace against a teamster for not bringing fish from a

railroad station, pursuant to a contract made for that purpose, whereby the fish were spoiled. One plaintiff proved that the fish were worth $18 or $20. The justice then allowed the following questions to be answered, against defendant's objection: "Has the fact of your not having these fish damaged your business ? Ans. It has damaged me in my business." 'Have you lost regular customers thereby? Ans. I have; I had regular customers waiting for these same Plaintiff had judgment for $18, which was affirmed, by the county court, on appeal.

fish."

Held, by the general term, that the evidence was incompetent, and that the court could not say how much it had affected the result. Judgment reversed. Reily v. Howard.

FRAUD.

Plaintiffs held a second mortgage upon certain premises. Defendant Hubbard was owner of the fee, and agreed to sell defendants, Maltby & Houston, a quantity of wood growing upon said premises, to be paid for March 1st. Hubbard further agreed with plaintiff to pay the proceeds of such sale upon the prior mortgage, and this was known to Houston, who acted as Maltby's agent throughout. February 27th, plaintiffs becoming apprehensive called on Houston and requested him to delay payment of the money, which Houston declined to do. Plaintiffs then obtained an injunction and served it on Houston by eight o'clock of the morning of March 1st; but Houston had paid the money to Hubbard before daylight of that day. Hubbard absconded with it.

Held, by the general term, that there was no cause of action against Maltby and Houston. Wilson, admr., etc., v. Maltby & Houston.

(Continued.

DIGEST OF RECENT AMERICAN DECISIONS. SUPREME COURT OF THE UNITED STATES.*

ADMIRALTY.

District courts sitting in, have jurisdiction under the act of March 3, 1851, limiting the liability of ship owners, and may administer the law as provided in the fourth section of the act. Norwich Company v. Wright, 104.

AGENCY.

When the agents of insurance companies having · agents at a distance from their principal place of business, undertake to prepare the application of the insured or to make representations to the insured as to the character or effect of his statements or his application, they will be regarded, in so doing, as the agents of the company, not of the person insured; and no limitations of the agent's authority will be binding on parties with whom he deals unless brought to their knowledge. Insurance Company v. Wilkinson, 222.

APPEAL.

The right of appeal or writ of error given by the acts of February 18, 1861, and July 20, 1870, without regard to the sum in controversy, applies to controversies between a patentee or author and alleged infringer as well as to those between rival patentees. Philip v. Nock, 185.

* From 13 Wallace.

ATTORNEY.

A threat of personal chastisement, made by an attorney to a judge out of court for his conduct during the trial of a cause pending, is good ground for striking the name of the attorney from the rolls of attorneys practicing in the court. Bradley v. Fisher, 336.

BILL OF EXCEPTIONS.

Dated during the term at which the trial was had, though some days after the trial, is sufficient if it show that the exceptions were taken at the trial. French v. Edwards, 506.

BOUNTY LAWS

Are not laws which constitute "contracts" in such a sense that the laws may not be constitutionally repealed. Salt Company v. Saginaw, 373.

CAVEAT EMPTOR.

Where the means of knowledge are at hand and equally available to both parties and the subject of purchase is alike open to their inspection, the purchaser cannot say, in impeachment of the sale, that he was deceived by the vendor's misrepresentations. Slaughter's Admr. v. Gerson, 370.

COLLISION.

The act of March 3. 1851, limiting the liability of shipowners, includes injuries to other vessels by means of, as well as injuries to cargo on board the offending vessel. Norwich Company v. Wright, 104.

COMMISSIONER OF THE GENERAL LAND OFFICE. The tenth section of the act of June 12, 1858, which declares that, in cases of contest between different settlers on the public lands for the right of pre-emption, his decision shall be final, means final as to the action of the executive department. Johnson v. Towsley, 72.

1. A statute does not necessarily impair the obligation of a contract because it may affect it retrospectively, or because it enhances the difficulty of performance to one party or diminishes the value of the performance to the other, provided that it leave the obligation of the performance in full force. Curtis v. Whitney, 68.

2. The power of congress over the public lands and the effect of its grants cannot be interfered with by State legislation. Gibson v. Chouteau, 92.

3. Whenever a general rule as to property, or per

sonal rights, or injuries to either, is established by State legislation, its enforcement by a Federal court, in a case between proper parties, is a matter of course, and the jurisdiction of the court in such case is not subject to State limitation. Railway Company v. Whitton, 271.

4. The proviso (sometimes called "The Drake Amendment"), in the appropriation act of July 12, 1870, whose substance is that an 'acceptance of a pardon without a disclaimer shall be conclusive evidence of the acts pardoned, but shall be null and void as evidence of rights conferred by it, is unconstitutional and void. It invades the powers of both the judicial and of the executive departments. United States v. Klein, 128.

5. It is not necessary that property should be absolutely taken, in the narrowest sense of that word, to bring the case within the protection of those provisions of the constitution of the United States and of the several States which declare that private property shall not be taken for public use without just compensation. Such serious interruption to the common and necessary use of property as is equivalent to a taking, will bring the case within the meaning of the constitution. Pumpelly v. Green Bay Company, 166.

6. Lands sold by the United States with no reservation, though bordering on a navigable stream, are as much within the protection of the constitutional principle awarding compensation as other private property. Ib.

7. Whenever a State, in modifying any remedies to enforce a contract, does so in a way to impair substantial rights, the attempted modification is within the prohibition of the constitution, and to that extent void. White v. Hart, 646.

8. A charter to a railroad company, containing an exemption of all its property from taxation, is a contract; and a law subsequently passed, laying a tax on the company's franchise, rolling stock or real property, violates the obligation of the contract, and is void. Wilmington Railroad v. Reid, 264.

9. But "bounty laws," laws encouraging persons to engage in particular trades by bounties, drawbacks, or other advantages, do not constitute contracts. Company v. East Saginaw, 373.

Salt

10. The manner and conditions upon which the judicial power of the United States shall be exercised, except as the original or appellate character of the jurisdiction is specially designated in the Constitution, are mere matters of legislative discretion. Railway Company v. Whitton, 270.

CONTRACT.

1. A contract to pay for slaves sold (slavery being at the time when, and the place where, the contract was made, lawful) is valid, and may be enforced though slavery be afterward abolished, and dealing in slaves so become unlawful. White v. Hart, 647.

2. A contract to re-imburse is implied when the government takes private property for public use. United States v. Russell, 623.

CORPORATION.

1. To be considered for purposes of jurisdiction a citizen of the State creating it. Railway Company v. Whitton, 270.

2. Will be presumed to have power to hold land when bearing such a title as "Sulphur Spring Land Company." Myers v. Croft, 291.

COURT AND JURY.

1. Where there are no disputed facts in a case, the court may tell the jury, in an absolute form, how they should find. Bevans v. United States, 57.

2. When a patent of prior date is offered in evidence in an action at law, as covering an invention described in the plaintiff's patent, on a charge of infringement, the question of the identity of the two instruments or machines must be left to the jury, if there is so much resemblance as raises the question at all. Tucker v. Spalding, 453.

COURT OF CLAIMS.

A rule of the, requiring parties to present their claims to an executive department before suing in that court, is, under the statutes constituting and regulating that court, unauthorized and void. Clyde v. United States, 38.

BANKRUPTCY LAW.

ACTIONS IN TORT-WHAT DEBTS PROVABLE.

1. An action for an assault and battery and false imprisonment, being a tort for a personal injury to the plaintiff, may be prosecuted to final judgment after the petition in bankruptcy is filed, and a judgment recovered may be proved against the bankrupt's estate, for the reason that a claim of this nature is not a provable debt until final judgment, hence does not come within the language of the second clause of section 21 of the bankrupt act. In re Hennocksburgh & Block, U. S. Dist. Ct., N. D. N. Y., 7 N. B. R. 37.

2. It was the intention of congress to adopt the time of the actual adjudication of bankruptcy as the time at which a debt must exist in order to be provable, in contradistinction to the time of the commencement of the proceedings in bankruptcy. Ib.

PARTNERSHIP.

Two firms shared in a certain venture, and kept an account at bank in the name of one firm, adding the word "Co.," and so signed the checks.

Held, that these checks did not establish a copartnership between the two firms, and that the holder of one of the checks thus signed could not file a petition in bankruptcy against the members of both firms. In re J. H. Warner et al., U. S. Dist. Ct., S. D. N. Y., 17 N. B. R. 47.

STATE INSOLVENT LAWS.

After the passage of the bankruptcy act, an insurance company became insolvent and committed such acts of bankruptcy as brought it within the provisions of the act.

Held, that "After this time the operation of any State law regulating the assignment and distribution of the property of the insolvent debtor corporation, and affecting the same persons, property and rights that would be affected by proceedings under the bankrupt act, was suspended." "When the power is exercised by congress, and a bankrupt law is in force, it does suspend all State insolvent laws applicable to like cases, and this effect follows the enactment of such bankrupt law, and does not require the actual institution of proceedings in bankruptcy to produce such a result." Reed et al., Pet'rs, in matter of Independent Insurance Company, U. S. C. C., Mass.

MORTGAGES-PAYMENT.

1. Mortgages and bills of sale of personal property, which are void as to creditors under the statute of frauds of the State where the transactions occur, are

void and convey no title as against the assignee in bankruptcy. Edmonson v. Hyde, assignee, U. S. Cir. Ct., Cal., 7 N. B. R. 1.

2. If a bankrupt does not choose to assert any claim to property that is exempted from execution under the law of the State where he resides, a mortgagee of that property cannot claim it as against the assignee in bankruptcy. Ib.

3. A decree that payment should be made in gold coin is just and proper, as all business transactions in California are based on coin values, and, if the value had been found in currency, the amount would have been increased so as to equal the value as actually found in coin, hence the defendant is in no way injured by the judgment for coin. Ib.

PREFERENCE.

1. Preference in a bankrupt court must rest either on a lawfully acquired lien, created before the filing of a petition by or against the bankrupts, or else the consideration therefor must have been unequivocally in aid of the assignee after adjudication, or in aid of the proceeding in bankruptcy. In re J. F. Nounnan & Co., U. S. Dist. Ct., Utah, 7 N. B. R. 15.

2. Services performed or moneys expended prior to the commencement of proceedings in bankruptcy, cannot, by any section of the act nor by any rule of law or equity, be construed to be in the aid of the proceedings in bankruptcy. Ib.

LEASE.

It is well settled that, until an assignee in bankruptcy elects to accept a lease as assignee, he does not become liable for rent accruing after the adjudication, hence, when an assignee occupies the leased premises independently of the lease and pays for such occupation, this occupation is not evidence of such an election. In re Ten Eyck & Choate, U. S. Dist. Ct., N. D. N. Y., 7 N. B. R. 26.

INSURANCE LAW.

LIMITATION OF TIME TO SUE.

By a provision of the policy it was to be void unless suit was brought within twelve months after the loss occurred. The fire occurred October 17, 1869. On the 6th of November of the same year, the parties entered into an agreement by which the assured agreed to accept and the company agreed to pay the amount that had been determined by an adjustment on the 6th of February, 1870, unless the assured should be notified by the company before that time of its intention to contest its liability, under the policy, for the loss. The company gave no notice of such intention, and suit was brought November 7, 1870.

Held, that the period from November 6, 1869, to February 6, 1870, should be excluded in the computation, and that the action was brought within the limitation specified in the policy. Black v. Winnesheik Ins. Co.. Sup. Ct., Wis., 1 Ins. L. J. 811.

TRANSFER ASSIGNMENT OF POLICY.

A

1. The policy contained a condition that, in case of any sale, transfer or change of title to the property insured, the insurance should be void, and cease. section of the charter of the company-a mutual company, of which the assured became a member-printed on the back of the policy, also provided that the policy should be void upon any alienation of the property by sale or otherwise. Home Mut. Ins. Co. v. Hauslein, Sup. Ct., Ill., 1 Ins. L. J. 818.

2. At the time the insurance was effected, the insured was the absolute owner of the property. He afterward made an assignment of the policy to Seibert, the mortgagee, with the assent of the company, and, subsequent to this, sold and conveyed the property to three other persons, one of whom reconveyed to him, and the other two executed mortgages to secure the purchasemoney. Ib.

3. Held, "The assignee of a policy takes it subject to the conditions expressed upon its face, and his equities confer no right, if the assignor has lost all right of recovery by a violation of the terms or conditions of the policy." The assignee knew of the condition in the policy providing for forfeiture in the event of alienation, and his rights must be controlled thereby. Ib.

4. There was a change of title in the property. The absolute ownership of the entire property is easily distinguished from the ownership of one-third, and a mortgagee of two-thirds. Ib.

5. The assignment was made with the consent of the company, but the condition of forfeiture upon alienation, without the consent of the company, was still applicable to the assignee as well as to the insured. The company did not waive the effect of the breach of the condition. By the act of the insured the policy became void. Ib.

6. It was contended that the memorandum, that the loss, if any, should be payable to the assignee, as his interest might appear, shows that his interest was intended to be protected; and that the change of title did not affect his interest. Ib.

7. The insured cannot sue, because he had so acted as to forfeit the policy. The assignee cannot sue, for he was not a party to the contract originally. In its nature the policy was only assignable so as to pass an equitable interest to the assignee. Even, as in this case, where the assignment was made with the consent of the company, the assignee cannot sue for a breach in his own name. Ib.

FOREIGN COMPANIES.

Action upon a premium note given the company for a health policy. The defense was that the company had not complied with the conditions imposed by the State law upon insurance companies from other States. The court held that it was competent for the State to prescribe conditions, upon which corporations from another State may transact business within its borders, and that such corporations are not citizens of the State in which they are created in such sense as to exempt them from the operation of such conditions, and that as this contract was unlawful under the statute, the note was void in the hands of the company. Cincinnati Mutual Health Assurance Co. v. Rosenthal, Sup. Ct., Ill.

1. Wallis, a local agent of the company, as principal, executed a bond to the company, with appellant as surety, conditioned that he should pay over to the company all moneys he might receive. Raymond was general agent of the same company, and bound by his contract to pay over all moneys received. Wallis failed to pay over certain amounts collected for the company, and Raymond, in the general management of the affairs of the company, paid the money, taking from Wallis his promissory notes, to be paid in a few days. These notes were not surrendered before the judgment.

Held, the principle of subrogation has special applica

tion to the facts of this case. The rule is, that where the person who pays the debt stands in the situation of a surety, or is compelled to pay, for the protection of his own interests, then, in either case, the substitution will be made. A mere stranger, who pays the debt of another, will not be subrogated to the creditor's rights. Hough v. Ætna Life Insurance Co., Sup. Ct., Ill., 1 Ins. L. J. 836.

2. The objection that notice was not given to the surety cannot be maintained. So far as the rights and remedies of the insurance company are concerned, appellant and Wallis are both principals. The appellant was primarily liable for any defalcations; and the company was not compelled to sue Wallis before resorting to its remedy against the surety. Where two persons execute a bond, one as principal and the other as surety, one is equally bound to the obligee as the other. The default did not lie within the peculiar knowledge of the opposite party. In such cases no notice is necessary before suit. Ib.

ADMIRALTY LAW.

Marine insurance: re-insurance -"to commence from loading at as above:" outward cargo to be homeward interest after a certain time. - Declaration upon a policy of insurance under-written by defendants for £1,000, declared to be upon cargo, being a re-insurance subject to all clauses and conditions of the original policy, in the ship D, at and from any port or ports in any order on the west coast of Africa to the vessel's port or ports of call and discharge in the United Kingdom, the insurance to commence "from the loading" of the goods at, as above; that it was a clause and condition of the original policy that the insurance made by it should be for £1,000 upon the cargo valued at £3,500 of the said vessel D, at and from Liverpool to any ports in any order backward and forward and forward and backward on the coast of Africa, and thence back to a port of discharge in the United Kingdom, with leave to increase the valuation of the cargo on the homeward voyage; "outward cargo to be considered homeward interest twenty-four hours after her arrival at her first port of discharge; " that goods were shipped at Liverpool, and the vessel, with goods on board, departed from a port on the west coast of Africa, and in the course of the voyage in the original policy described, and more than twenty-four hours after she had arrived at her first port of discharge, the goods were lost by perils insured against in the original policy.

Demurrer on the ground that it appeared from the declaration that the goods were not loaded at any port on the west coast of Africa.

Held, that the goods, though shipped at Liverpool, were within the policy of re-insurance after the lapse of twenty-four hours from the vessel's arrival at her first port of discharge on the west coast of Africa. As the policy was declared to be a re-insurance, subject to all clauses and conditions of the original policy, and by the original policy outward cargo was to be considered homeward interest twenty-four hours after the vessel's arrival at her first port of discharge, the words from the loading" were not to be construed strictly. Joyce v. The Realm Marine Insurance Co., Q. B., 27 L. T. R. 144.

66

Judge Fancher, successor on the bench of the supreme court of this State to Judge Barnard, assumed his seat on the 22d inst.

CORRESPONDENCE.

A PRACTICAL COURSE IN LAW SCHOOLS.
SPRINGFIELD, MASS., October 27.

Editor Albany Law Journal:

It has always seemed to me a matter for wonder that the several law schools of the country have never made any attempt to teach practice in connection with law practically, something after the plan that has proved so successful in commercial colleges. It is well known that in the latter schools pupils are not only instructed in the theory but also in the practice of mercantile operations. Banking departments are run, deposits made, drafts and checks drawn, and in fact every thing conducted as far as possible in the manner of the business world outside; other departments of business are run in the same manner, but the one illustration is sufficient. Something of this sort could be profitably introduced into the schools of law. So poorly is the practice taught in such schools now, that there is not one graduate in a hundred, unless he has previously passed some time in an office, that could conduct, creditably, a case in a justice's court, or draw a deed without a blank or form, or draft a pleading on a promissory note, or do any other of those numerous things that are usually done by the clerks or junior partners in law firms. There is no sense or defense to this. I know that the prime essential is a knowledge of substantive law, and that it is the duty of the schools to teach this, but substantive law will not prove very useful to a lawyer, either in the way of fame or bread and butter, unless he know the machinery by means of which it is to be applied to the affairs of life. A young man will learn the law relating to wills quite as thoroughly, indeed more thoroughly, if he can draft a will without the aid of a form book.

What the schools should do and will ultimately do in connection with their instructions in law is, first, to require constant practice in drafting wills, deeds, mortgages, pleadings, etc., etc. This can be easily done in this wise: The instructor should assume the role of a client desiring to make a will, and give the particulars of the devises and bequests he wishes to make. These should be simple at first; but, after the simple forms are mastered, the instructions should be more complicated. The students from these data should each be required to prepare a will as carefully as he would for a client. This should be done in the lecture-room and without the aid of statute or form book. The instructor should then examine each and note on it its errors and short comings. And so with all the papers and instruments a lawyer is ordinarily called upon to draft. No one imagines that this course will make a lawyer who can draft any and every form of instrument at sight without the aid of statute or study, but it will make one who will be better prepared than most of our law school graduates now are to begin creditably the business of life.

The second thing to be done is, to teach the details of practice by requiring the students to go through with them. This will require a little more trouble, but it will abundantly repay. To do this the several courts justices', probate, nisi prius and appellate, having clerks, sheriffs, etc., should be established as nearly like actual courts as circumstances will permit. These should be presided over by a professor as moot courts now are. Take for instance a case in the nisi prius court. Clients, both plaintiff and defendant, should be selected and their attorneys appointed from among the students.

The facts of a supposed case should be given to the plaintiff and his attorneys with full instructions. The attorneys should be required to issue process, draft the pleadings and proceed precisely as in actual practice. The defendants should be instructed as to the facts of the defense and left to draft the answer. At the trial a jury should be regularly impaneled from the students, witnesses instructed on both sides and the case tried under the direct supervision of the teacher. All notices should be given, papers filed with the clerk, and the minutia carefully insisted upon. Then let an appeal be taken and conducted through to the court of last resort.

I have only space to give the idea in the rough, but I trust I have made sufficiently obvious the general scope of the plan.

This may seem like boy's play, and perhaps it is, but it is that kind of play which will save the boys much chagrin, disappointment and trouble when they come to have real clients and real business. It has been said that almost every thing depends upon a lawyer's beginning his professional career right — with eclat, and this course of school instruction will help him to do it. Experience is no doubt the best teacher, but if the lesson is learned at the expense of the client it will prove to the young lawyer a very dear experience indeed.

Will not this new Boston school of law, which has just so prosperously opened, introduce some features like those proposed. If any one can improve upon the plan, let him make it known through the LAW JOURNAL. T. G.

ORDERS OF ARREST.

TROY, N. Y., Oct. 28, 1872.

Editor Albany Law Journal:

Dear Sir: I was somewhat amused by a paragraph in the last number of your excellent journal, to the effect that a judge ought not to issue an order for arrest in an action for "breach of promise," where the defendant, who was a lawyer, was about to be married to (another) "very worthy lady." What would you have? Should the judge make it an order to show cause, or appoint a referee to take proofs as to, whether the defendant was about to put it out of his power to repent his breach of contract? I remember reading in a law book, that, where a man had married a wife, it was still not an excuse for not answering a certain summons. How can it be an excuse for not attending to the demands of his creditors, that he is about to marry a wife? However inconsiderate and impolite the slighted fair one may have been, and however inordinately the counsel may have wrought himself up in her behalf, I think it is rather hard on the judge to hold him responsible for it. Really, our circuit judges seem to be too busy to go around inquiring whether the officers of their court are going to be married or not.