ful and controlling consideration in this country, where every man is, in some degree, responsible for the law, if not an actual legislator, is, that the greater the knowledge of legal science, the greater the certainty of wise and healthful laws. The subject of comparitive scientific jurisprudence is, in itself, not merely the pursuit of themes of the most transcendent interest and importance, but in many aspects furnish the key to the inner secrets of history, while enlarging our respect for the world in general, with the knowledge of the moral unity of mankind. It gives significance to facts in the history of other lands, without which all is mysterious and oftentimes unaccountable. It increases our reverence for the triumphs of human thought, as it makes known the fact that the great and good of all ages have contributed some ray to the noonday glory of our enlightened age. It enlarges the cosmopolitan spirit, for we soon discern that to foreign jurists and civilians we owe most of the scientific statement of jurisprudence. And again it increases our respect for heroism and moral dignity; for it is true that most of the grandest principles have been born of mighty struggles, and the champions of great principle have often been the scorned and persecuted of their own day. Giants of moral power contemplating the truths of God are contemplated, rearing the science of liberty and just and equal law, often amidst the gloom of tyranny, superstition and persecution. Indeed there is but one theme higher than this, it is theology, and the science of religion. And this eternally transcendent theme, I will, with your kind permission, commend to those who have experienced the discipline of legal study, and are the better prepared to rise to higher contemplation, worthy of their attainments, and essential to their highest being. WM. H. INGERSOLL. ABSTRACT UNITED STATES SUPREME COURT DECISIONS-OCTOBER TERM, 1873. CONTRACTS OF SETTLERS-HUSBAND AND WIFE. 1. Contracts made by actual settlers on the public lands concerning their possessory rights, and concerning the title to be acquired in future from the United States, are valid as between the parties to the contract, though there be at the time no act of congress by which the title may be acquired, and though the government is under no obligation to either of the parties in regard to the title, unless they are forbidden by some positive law. Lamb v. Davenport. Opinion by Miller, J. 2. The proviso of the Oregon donation act of 1850, which forbids the future sale of the settler's interest until a patent shall issue, so far from invalidating such contracts made before its passage, raises a strong implication in favor of their validity. Ib. 3. Whether the husband or wife who takes as survivor the share of the deceased under the donation act, takes as purchaser or by inheritance, we hold that contracts of the husband concerning the equitable interest of the part allotted to him, made before the donation act was passed, are binding on the title which comes to his children by reason of a patent issued after the death of both husband and wife. Ib. JURISDICTION-INVESTING TRUST FUNDS IN CONFEDERATE BONDS ACTS OF STATES DURING CIVIL WAR. 1. When objection is taken to the jurisdiction of the Circuit Court of the United States by reason of the citizenship of some of the parties to a suit, the question is whether to a decree authorized by the case presented they are indispensable parties. If their interests are severable from those of other parties, and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them. Horn v. Lockhart, Opinion by Field, J. 2. To a suit brought in the Circuit Court of the United States by legatees in a will to compel an executor to account for moneys received by him from sales of property belonging to the estate of his testator, and to pay to them their distributive shares, it is no answer for the executor to show that he invested such funds in bonds of the Confederate government by authority of a law of the State in which he was executor, and that such investment was approved by the decree of the probate court having settlement of the estate. Such investment was a direct contribution to the resources of the Confederate government, and was an illegal transaction, and the decree of the probate court approving the investment and directing the payment of the distributive shares of the legatees in such bonds was an absolute nullity, and affords no protection to the executor in the courts of the United States. Ib. 3. The acts of the several States in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. Ib. INTERCOURSE BETWEEN BELLIGERENTS. Solomon Cutner, the claimant in this case, in his petition, states, and the Court of Claims finds, that he sues for the use of Samuel Schiffer, surviving partner of J. Schiffer & Co. Though a loyal citizen, he was a resident of Georgia, and had the cotton in question (30 bales) on storage in Savannah when that place was captured by Gen. Sherman, in December, 1864. He duly reported it on the 23d of February, 1865, and had it registered by the treasury agents, who took it into custody on the 3d of March. On the 6th of March, 1865, Cutner executed a bill of sale of the cotton to J. Schiffer & Co., of New York, as he states, in consideration of a debt which he was owing to them; but the court of claims finds that he received at the time, from J. B. Stewart, the attorney and agent of Schiffer & Co., $2,250, the entire consideration named in the bill of sale. Intercourse between the inhabitants of the two belligerent sections was still prohibited when this sale was made. Held, that the sale was, therefore, clearly illegal, unless Schiffer & Co. had a license to trade in Savannah, which the case expressly finds they had not. The sale being illegal, the suit cannot be sustained for the benefit of the vendees. It cannot be sustained for Cutner's own benefit, because he received the full consideration of the cotton and has no interest remaining. Decree affirmed. Cutner v. United States. Opinion by Bradley, J. PROMISSORY NOTE. 1. Slaves as consideration: decisions of State courts.— Action on a note, which was executed in Louisiana, before the commencement of the late rebellion, for the price of certain slaves. Defense, failure of consideration. The only exception taken on the trial was to the following charge of the court to the jury: "That it is not a legal defense to a suit brought on a promis sory note, executed in this State on the 13th of February, 1861, by the holder against the maker thereof, to allege and prove that such note was given as the price, or a part of the price, of slaves sold to the maker; that such sale was at the time lawful and valid in said State, was a sufficient consideration for a note, and that the obligation could not be impaired by laws of a State passed subsequently to the date thereof. And that no law of the United States has impaired such obligation." Held, that if, when the note in question was executed, slavery existed in Louisiana under the protection of law, and contracts relating to it were enforceable in the courts, which is conceded to be the case, the defendant cannot be released from his obligation to pay it by any thing which the State has done subsequently. This subject received the careful attention of this court in White v. Hart, 13 Wall. 647, and we are satisfied of the soundness of the views there presented. The case of Osborne v. Nicholson, 13 Wall. 655, is also decisive of the last point in the charge. In that case it was held that contracts relating to slaves, valid when made, were not impaired by the 13th amendment to the Constitution, and it would serve no useful purpose to restate the argument by which that decision was supported. It is sufficient to say that we have seen no reason to question the correctness of the interpretation given to that amendment in its application to that case. Boyes v. Taff. Opinion by Davis, J. 2. It is urged on the part of the plaintiff in error, as the highest court in Louisiana has, on grounds of public policy, refused to enforce contracts like this since the abolition of slavery, that the thirty-fourth section of the judiciary act of 1789 obliges this court to follow that rule of decision. This is an erroneous view of the obligation imposed by that section on this court, as our decisions abundantly show. Swift v. Tyson, 16 Pet. 1; Watson v. Tarpley, 18 How. 520; Delmas v. Insurance Company, 14 Wall. 665. The provisions of that section do not apply, nor was it intended they should apply, to questions of a general nature not based on a local statute or usage, nor on any rule of law affecting titles to land, nor on any principle which had become a settled rule of property. The decisions of the State courts, on all questions not thus affected, are not conclusive authority, although they are entitled to, and will receive from us, attention and respect. Ib. The judgment of the circuit court is affirmed. COURT OF APPEALS ABSTRACT. Order of arrest: factor: usage.-Action upon defendants' acceptance of a draft drawn upon them by A. K. & Co. An order of arrest was obtained by plaintiff upon affidavits showing that the drawers of the draft, as common carriers, had shipped grain by canal to New York, upon which they had a lien for freight and toll advanced. They consigned the grain to defendants to collect the liens and deliver upon payment. Bills of lading were made out for the amount of the lien, the draft drawn for the amount thereof, which plaintiff discounted upon receipt of the bills of lading indorsed to it as security. Plaintiff forwarded the draft to defendants to collect, and apply the same to pay the draft. Defendants collected the bills, mingled the money with their funds, and then failed. Held, that the action was founded upon the liability incurred by the acceptance, not for the moneys collected by defendants, that as to the former cause of action no facts were stated war ranting an order of arrest, and, therefore, it was properly set aside. A usage adopted by a certain class of factors, as to the disposition of the funds of their principals, will not relieve such a factor from a duty or a liability which the law would otherwise impose upon him, unless he shows his principal had knowledge of such usage, or that he assented to that method of doing his business. F. & M. Nat. Bk. of Buffalo v. Sprague et al. Opinion by Grover, J. -- BILL OF EXCHANGE. 1. Laches. Action upon a non-negotiable draft on the W. S. Co., given by plaintiffs to defendant. The company at the time owed plaintiffs for work and materials used for building to more than the amount of the draft. The company refused to pay the draft, although not denying the indebtedness. Defendant did not notify plaintiffs of this fact. Plaintiffs gave the company credit for the amount of the draft, and before they knew of its non-payment filed a mechanics' lien for the remainder of their account, which was their only security therefor. Held, the court was justified in finding that if the non-payment of the draft had been made known to plaintiffs in a reasonable time, they would have included its amount in their mechanics' lien, and thus have secured it; that what was unsecured was lost; that the loss being occasioned by defendant's laches plaintiffs were discharged from liability; that the consideration for the draft was good. Newman et al. v. Frost. Opinion by Folger, J. 2. The fact that payee of a non-negotiable bill of exchange has neglected to make immediate demand of payment, and failed to give immediate notice to the drawer, will not alone relieve the latter from liability thereon; but if the payee has been guilty of positive laches, to the drawer's detriment, the payee must bear the loss. Ib. LESSOR AND LESSEE. Plaintiffs leased certain premises to B. & C., upon the condition that the lessees should not sub-let them for storage, after the first year of the term. The lessees sub-let the premises to S. for five years, and thereupon plaintiffs gave S. a written license to use the premises for five years, for storage, for $1,500 a year, agreed to be paid by S., and an arrangement on his part to keep the buildings insured. Defendants guaranteed the performance of the contract. Subsequently S. surrendered his lease, and declined to pay the sums, thereafter falling due thereon, to the plaintiffs. Plaintiffs brought an action upon the guaranty. Held, that the surrender of the lease did not, without the consent of plaintiffs, terminate and affect the liability of S. to them, but that he was bound to perform his contract for the whole period of five years, although he ceased to avail himself of the privilege. Doscher, ex'rx, etc., et al. v. Shaw et al. Opinion by Rapallo, J. MANUFACTURING CORPORATIONS. Transfer of stock: transfer on books. — Action to recover for moneys alleged to have been paid by plaintiff upon judgments rendered against him as a stockholder in the H. R. State Co., and for costs incurred in defending the actions. The stock, before the incurring of the indebtedness for which the judgments were rendered, had been sold by plaintiff, and transferred to U., defendants' testator, in April, 1868, by delivering to him the certificate of the stock, with a power of attorney, in blank, to transfer the same. No transfer of the stock to defendant was ever made or entered upon the books of the company. In August, and samples taken and compared with the original samples. Plaintiffs delivered to defendants an order upon the warehouses where the cotton was stored for the same, and defendants indorsed upon the order a direction to re-store it for them, and delivered it to the warehouseman. Afterward seventy bales of the cotton were weighed, samples taken out and the bales put back in the warehouse. The night of that day forty-two of these bales, together with those not weighed, were destroyed by fire. Held, that there was no delivery and acceptance so as to pass the title, that the compliance which was to precede delivery was not complete until the samples taken out had been compared with the original samples, that if the acceptance of the seventy bales should be assumed it must be construed as conditional upon delivery of the balance contracted for. Also, that if there was a delivery the action could not be maintained, as the contract was entire, and until the delivery of the whole quantity no action accrued. Kein et al. v. Tupper et al. Opinion by Church, Ch. J. 1868, several laborers commenced actions against plain- | on delivery. Before the delivery the cotton was weighed tiff, as a stockholder of the company, to recover wages earned in July and August, 1868. U. was immediately❘ notified and requested to defend these actions. As he did not reply, plaintiff put in answers. U. was again notified and requested to defend. Plaintiff did not appear upon the trials, and judgments were taken against him by default, which he paid. Held, that the provision of the act, authorizing the formation of manufacturing corporations (Laws 1848, ch. 40, § 25), which declares that no transfer of stock shall be valid for any purpose whatever, until it shall have been entered in the book prescribed, and, in accordance with that section, is to be confined in its application to the objects sought by the section, which are the security and ease of remedy of creditors, and the information of stockholders and creditors. As between vendor and vendee it does not affect the validity of an assignment in reality made, although the stock is not transferred in legal form. U., after receiving the certificate and power of attorney to transfer the stock in his own name, was liable, under the contract of sale, to plaintiff for any debts thereafter incurred by the company, which plaintiff, under the provisions of said act, is obliged to pay by reason of his name remaining on the books as the apparent owner. U. took the shares, subject to all the burdens and liabilities attached to or growing out of them, and the law implies an obligation or promise, on his part, that those burdens and liabilities shall not come upon plaintiff. Until the transfer of the stock upon the books of the company is in fact made, plaintiff was the nominal owner, and was to be treated as the trustee of the stock for U. Johnson v. Underwood et al., ex'rs, etc. Opinion by Folger, J. PILOTAGE ACTS. Action to recover penalties alleged to have been incurred by violation of the State pilotage act (chap. 407, Laws of 1853). Plaintiff recovered a judgment under the twenty-ninth section of said act, as amended, for employing a person not licensed as a pilot under that act, or under the laws of New Jersey to pilot its vessel to sea, on July 24, 1868. Defendant's counsel insists that this provision of the State statute has been repealed by congress and was not in force. It was conceded that it was in substance repealed by congress by an act passed in 1868 (14 U. S. Stat. at Large, 228), but that the State law was restored by an act of congress passed February 25, 1867 (id. 412). Held, that the pilotage act of 1853 (§ 29, chap. 407, Laws of 1853), which was in substance repealed by the provisions of the act of congress of 1866 (14 U. S. Stat. at Large, 228, § 9), giving pilots licensed by the United States inspectors of steam vessels, power to act as port pilots, etc., was restored by the amendment to that act of 1867 (14 U. S.[Stat. at Large, 412), which provided in substance that nothing in that act as amended should be construed to annul or affect any regulation established by the existing law of any State, requiring certain vessels to take duly licensed State pilots, and said provision is in full force. Board of Commissioners of Pilots v. Pacific Mail Steamship Co. Opinion by Peckham, J. SALE AND DELIVERY. 1. Action to recover the purchase price of seventy bales of cotton alleged to have been sold by plaintiffs to defendants, under a contract to sell the latter one hundred and nineteen bales of cotton, to conform to samples, at a specified price per pound, payable in cash 2. While plaintiffs were relieved by the destruction of the subject-matter of the contract, without their fault, from an action for damages for non-performance, it could not enable them to enforce a part performance. Ib. 3. Fraud: principal and agent. - Plaintiff, as assignee of N. & P. McG., brought an action against defendant as for goods sold and delivered, to recover for five barrels of whisky. It appeared that R represented to defendant that he had a distillery in the name of another in Brooklyn, and contracted to sell to defendant five barrels of whisky, for cash on delivery. He then called on N. & P. McG., who were wholesale liquor dealers in Brooklyn, and ordered five barrels of whisky to be sent to defendant, claiming to be his authorized agent. N. & P. McG. shipped the whisky as directed, with an invoice thereof from them to defendant. The barrels were marked with their firm name, place and kind of business. On the day following, R advised defendant that the whisky had arrived, and exhibited a pretended invoice therefor. Defendant then accompanied R to the railroad depot, found and took away the whisky, and paid R the price agreed upon. Defendant did not receive the invoice sent, and did not observe the marks upon the barrels. He had no notice that the goods belonged to N. & P. McG., or that R had assumed to act as his agent. R was not authorized to act for either party. Defendant disposed of the whisky and refused to pay plaintiff for the same. Held (Allen, Rapallo and Folger, JJ., dissenting), that the acts of N. & P. McG. clothed R with no authority, real or apparent, or color of right to, or control over the property, nor were they guilty of negligence, nor did any act or statement on their part deceive defendant; that in the transaction with R, defendant acquired no title to the whisky; that no question as to the pleadings having been raised on the trial, none could be raised on the appeal; and that plaintiff could waive the tort and sue ex contractu, and was entitled to recover. No person can transfer title to the property of another, unless the owner has clothed him with authority, real or apparent, so to do. McGoldrick v. Willits. Opinion by Peckham, J. SUPPLEMENTARY PROCEEDINGS. 1. Action for false imprisonment. Defendant recovered a judgment against T. An execution was issued thereon and returned unsatisfied. Application was made to the county judge for an order requiring plaintiff to appear and answer under § 294 of the Code. The affidavit presented was made by McI., who described himself therein as the attorney for the plaintiff, the defendant herein. It stated upon information and belief, that the plaintiff herein had property of said T, and was indebted to him in an amount exceeding $10. An order was issued requiring plaintiff to appear before the county judge, at a specified time and place, to be examined, etc. The order was served, and plaintiff failed to appear as required; and, upon proof of service, an attachment was issued for his arrest, to answer for contempt. The attachment was delivered by defendant's attorney to the sheriff, with instructions to arrest plaintiff, which arrest is the false imprisonment complained of. At the close of plaintiff's evidence, defendant moved for a nonsuit, which was granted. Held, that the affidavit was sufficient to confer jurisdiction upon the judge to grant the order; that to authorize the issuing of an attachment in proceedings supplementary to execution, instituted under § 294 of the Code, against one indebted to the judgment debtor, for a failure to appear and be examined as required by the order of the county judge, no proof by affidavit of the failure to appear is necessary; the judge has judicial knowledge of that fact. Miller v. Adams. Opinion by Grover, J. 2. Where such application is made upon the attorney, affidavit, proof of his authority to act, is not necessary to confer jurisdiction upon the judge to issue the order. Also, held, that one who applies to a judge to issue an attachment for the arrest of another, and who receives and delivers it to the sheriff for service, is liable for the arrest, in case the attachment is void for want of jurisdiction in the judge, or for any other cause. Ib. TERMS AND CIRCUITS FOR 1874-5. The justices of the Supreme Court of the State of New York have designated the following terms and circuits for 1874-5: FIRST JUDICIAL DISTRICT. In Supreme Court, November 20, 1873. Pursuant to the provisions of the Code of Procedure, the justices of the First Department do hereby appoint the courts of the Supreme Court and Oyer and Terminer to be held in the city and county of New York, for the years 1874 and 1875, as follows, viz.: Special terms for enumerated motions to be held on the first Mondays of February, April, June, November and December in each year. Courts of Oyer and Terminer to be held on the first Mondays of February, April, June and November in each year. Three Circuit Courts to be held on the first Mondays of February, April, June, November and December in each year. Two Circuit Courts to be held on the first Mondays of January, March, May and October in each year. Special terms for motions and chamber business to be held on the first Monday of each month in each year. D. P. INGRAHAM, P. J., GEO. C. BARRETT, E. L. FANCHER. STATE OF NEW YORK, Office of the Secretary of State. I have compared the preceding with the original appointment on file in this office, and do hereby certify that the same is a correct transcript therefrom, and of the whole of said original appointment. Given under my hand and the seal of office of the Secretary of State, at the city of Albany, this [L. S.] twenty-fourth day of November, in the year one thousand eight hundred and seventythree. ANSON S. WOOD, Deputy Secretary of State. SECOND JUDICIAL DISTRICT. General Terms. Announced under the act of April 27, 1871, as fol lows: Second Monday of February, 1874 and 1875, at the court-house, Kings county. Second Monday of May, 1874 and 1875, at the courthouse at Poughkeepsie. Second Monday of September, 1874 and 1875, at the court-house in Kings county. Second Monday of December, 1874 and 1875, at the court-house in Kings county. The justices of the Supreme Court hereby appoint Circuit Courts and Courts of Oyer and Terminer and Special Terms, to be held in the Second Judicial District, for the years 1874 and 1875. Circuit Courts and Courts of Oyer and Terminer. ...... Justice Barnard. except in the county of Kings, at the times and places appointed for holding circuit courts therein. Second Monday of March, 1875 do Tappen. do Barnard. Gilbert. do Dated November 12, 1873. J. F. BARNARD, J. W. GILBERT, A. B. TAPPEN. I have compared the preceding with the original appointment on file in this office, and do hereby certify that the same is a correct transcript therefrom, and of the whole of said original appointment. Given under my hand and seal of office, of the Secretary of State, at the city of Albany, this four[L. S.] teenth day of November, in the year one thousand eight hundred and seventy-three. ANSON S. WOOD, Deputy Secretary of State. Pursuant to the requirements of the 7th section of chapter 408 of the Laws of 1870, the undersigned justices of the Supreme Court, resident in the Third Judicial Department, do hereby appoint the times and places of holding Special Terms, Circuit Courts and Courts of Oyer and Terminer, within the said Judicial Department, for two years, commencing on the first day of January, eighteen hundred and seventy-four, and assign justices to hold said courts as follows: THIRD JUDICIAL DISTRICT, 1874 AND 1875. Circuit Courts, Special Terms and Courts of Oyer and Terminer. First Monday of January, 1874. First Monday of February, 1874 do Justice Gilbert. Barnard. First Monday of March, 1874 do Pratt. First Monday of April, 1874 do Tappen. First Monday of May, 1874 do Pratt. First Monday of June, 1874. First Monday of July, 1874. do Barnard. First Monday of August, 1874 First Monday of September, 1874. First Monday of October, 1874. First Monday of November, 1874.. First Monday of December, 1874 First Monday of January, 1875 First Monday of February, 1875. First Monday of March, 1875 First Monday of April, 1875 First Monday of May, 1875 do Gilbert. First Monday of June, 1875..... First Monday of July, 1875. do Barnard. Last Tuesday of January. Last Tuesday of February. First Monday of August, 1875 First Monday of September, 1875... Last Tuesday of March.. Last Tuesday of April. First Monday of October, 1875.. First Monday of November, 1875... do First Monday of December, 1875 do Tappen. Gilbert. DUTCHESS COUNTY. Every Saturday, 1874 and 1875....... Justice Barnard. Special terms will also be held in the several counties, Last Tuesday of May.. do Learned. do Westbrook. do Ingalls. do Westbrook. do Learned. do Ingalls. |