ner for his debt. 3. Where a creditor has a general lien, and the debtor on receiving an advance or other accommodation from such creditor, deposits with him a particular security, specially intended, or appropriated, or even pledged to meet such advance, or to cover such accommodation, the security is subject not only to a particular lien for the advance or liability, but also to the creditor's general lien. 4. If two mercantile houses are composed wholly of the same persons, they constitute, notwithstanding the difference of their names of association, one and the same joint-party creditor, and if the credi tors are entitled to a general lien and there is a deficiency in value of the se curities deposited with either house, an ulterior general lien does not attach to any surplus in value of the securities deposited with the other house, ex cept under special circumstances. 5. The difference in names implies an in tended separation of possession and control, and in order to establish an ul terior general lien in favor of either house, it is only necessary to rebut this implication. 6. If the debtor knows that the two houses are composed of the same persons, and the declarations or acts of the parties, pending the business, indicate a belief on each side that either house may control the securities de posited with the other house, there is a general ulterior lien in favor of either, upon any surplus in the hands of the other. 7. A creditor who is vested with authority to sell securities, deposited with him, can not exercise it otherwise than under a trust for the debtor's benefit. 8. A creditor who holds stocks as collaterals, need not sell them by auction, but may sell them at the stock exchange or brokers' board. 9. If the debtor, though insolvent, acquiesces in a sale of stocks by a secured creditor, his assignee is bound by such acquiescence although the stocks are sacrified. 10. The assignee is not bound by the bankrupt's ratification or acquiescence in a sale of collaterals made after the commencement of the proceedings in bankruptcy. 11. An assignment, though voidable at the suit of the assignee, is not void, They adopted and subscribed certain by-laws, one of which was as follows: "If any member shall leave the band, he leaves all his interest with the band." Musical instruments for the use of the members were bought by the associa tion, one of which was intrusted to the defendant for use. The defendant voluntarily withdrew from the association, taking with him said iustrument, which he refused to surrender upon demand made for the same. Held, that trover for the same might be maintained by the remaining members of the association against him. Liability of Railroad as Common Carriers, as Warehousemen, and as Depositaries -Brown v. The Grand Trunk Railway. [54 N. H. 535.] 1. After the responsibility of a railroad as a common carrier has ceased, they may charge for storage of goods as warehousemen, in which case they will be liable for ordinary care in relation to the goods. 2. But where they are acting in good faith as mere depositaries, without pay, they are only responsible for slight care, and would not be liable for an act of ordinary negligence on the part of their servant in taking care of the goods. Attorney's Services to Infant.-Barker v. Hibbard. [54 N. H. 539.] Services of an attorney, rendered to an infant in defending him in a bastardy proceeding, are necessaries, for which, if it were reasonable for him to make a defence, he is liable on an implied promise. Nonsuit-Auditor's Report-Practice.-Fulford v. Converse. [54 N. H. 543.] An auditor made his report at the November term, 1869, and the plaintiff elected a trial by jury. At the April term, 1871, the case not having been opened to the jury, the plaintiff moved to become nonsuit; the court denied the motion. Held, that there was no error in the ruling. Jndge o Probate v. Abbot, 13 N. H. 21, distinguished. Contract-Disclosed and Undisclosed Principals-Agent.—Chandler v. Coe and A. [54 N. H. 561.] 1. Where a principal carries on business in the name of his agent as a business name, the principal is liable upon a contract made by his agent for him in the agent's name, whether it is verbal or written; and if written, whether it is negotiable or not, and whether the agent disclosed his agency or not. 2. An undisclosed principal is liable to be sued and entitled to sue upon an express verbal contract, and also upon a simple written contract not under seal, but not upon a negotiable instrument made by his agent for him in the agent's name. 3. A disclosed principal is not liable to be sued nor entitled to sue upon a written contract made by his agent for him in the agent's name. 4. A principal is not liable to be sued nor entitled to sue upon an implied contract arising from the passage of the consideration Conveyance and Subsequent Creditors-When Assignee may Impeach Deed.-Barker v. Smith et al. United States Circuit Court Louisiana. Opinion by Wood, J. [12 Nat. Bank. Reg. 474.] 1. A voluntary conveyance by a person not in debt, can not generally be assailed as fraudulent by subsequent creditors. The omission to record a voluntary conveyance is a badge of fraud. 2. The assignee represents creditors, and may impeach a deed which is void as against them for want of due registration, Assignee and Preference Creditor--Pleading.-Jordan, Assignee' v. Downey. Court of Appeals, Maryland. Opinion by Bartol, C. J. [12 Nat. Bank. Reg. 427.] 1. A state court may entertain an action by an assignee to recover money received by a creditor as a preference. If money is brought between his agent and the other contracting party, where there was an express into a state court under a fi. fa., the assignee may intervene and claim the fund on the ground that the levy is void under the bankrupt law. 2. If a demurrer to an intervening petition is overruled, the demurrant is entitled to answer and be heard on the merits. 3. If a cause is heard on petition and answer, the statements in the answer will be deemed to be true. Pleading-Evidence-Action by Assignee -Dambmann v. White et al. California Supreme Court. Opinion by Crockett, J. [12 Nat. Bank. Reg. 438.] 1. A statement in a complaint that the plaintiff is assignee in bankruptcy, may be treated as surplusage, or at most descriptio persona. 3. Under a general averment that the plaintiff was possessed as of his own property, proof may be given that he acquired the title by means of proceed ings in bankruptcy. 3. A complaint need not state how the plaintiff acquired title to the property in controversy. 4. In suits by an assignee, his represen contract in the agent's name, whether verbal or written, unless an action might be sustained by or against him upon the express contract. 5. Where it is negotiable or not, and whether he disclosed his agency or not, parol evan agent is sued upon a written instrument executed in his own name, whether idence that he contracted only as agent not admissible for the purpose of discharging him from liability. U. S Coast Survey-Eminent Domain-Payment-Tender-Public Use Statute-Constitutional Law.-Orr v. Quimby. Opinion by Hilbard, J. [54 N. H. 590.] 1. It was not the intention of the legislature which enacted the general statutes, that the assessment of damages, and the tender provided for in ch. 132, should precede the entry upon and injury to lands therein authorized. 2. A state has constitutional authority to condemn tative character need not be averred in the pleadings. 5. If a duly certified private property for a public use by the United States. 3. Property taken for the use of the United States coast survey, is taken for a public use. 3. Chapter 132 of the general statutes is not unconstitutional, because it does not re copy of the assignment is put in evidence, it is not necessary to prove all the steps in the proceedings. 6. A state court may entertain an action by an assignee to recover property disposed of by the bankrupt in fraud of the bank-quire an assessment of damages, and payment or tender of the sum assessed, rupt law. ADVANCE SHEETS 54 NEW HAMPSHIRE REPORTS.* Contract in Restraint of Trade-Statute of Frauds.-Perkins v. Clay. [54 N. H. 518.] 1. A contract in restraint of trade, but limited as to time, place, or persons, is not void upon grounds of public policy, but may be enforced. 2. C. sold to H. his cart and business as a butcher for the sum of $90, and agreed not to carry on the same business over the same route which he had formerly run so long as H. should want to carry on the business. Subsequently H. sold to P. the cart and business for the sum of $90; and C., in consideration that H. released him from his former agreement, entered into a parol agreement with P. that he would not carry on the same business over the same route for a period of two years. Held, that there was a sufficient consideration for the promise from C. to P., and that the agreement was not within the statute of frauds. Voluntary Association-Trover.-Danbury Cornet Band v. Bean. [54 N. H. 524.] The plaintiffs and the defendant associated themselves together under the name of the Danbury Cornet Band, but not as a corporation. *Courtesy of John M. Shirley, Esq., Andover, N. H., Reporter. before the entry upon and injury to lands therein authorized, nor provide for a definite and certain fund to secure the payment of compensation. Doe, J., dissenting. 5. A party injured, under the authority of ch. 132 of the general statutes, is not entitled to commence an action of tort and maintain it, until an assessment of his damages shall have been made under the statute, and the sum assessed paid or tendered. 6. An agent of the United States, entering upon and doing injury to land, in the service of the coast survey, under the authority of ch. 132 of the general statutes, will be liable to an action o tort, unless such entry and injury were reasonably necessary for the purpose of the coast survey. THF COMMERCIAL LEGAL REPORTER. OCT. 13.* Trespass-Rights of Lessee.-McNaery v. Hicks; Supreme Court of Tennessee. Opinion by Sneed, J. Where there was an avowed trespasser upon the lessee's right of possession, who pretended no claim to or interest in the property, and who so notified the lessee, and the latter never objected to paying the rent on account of such trespasser's occupancy of the premises, until more than a year from the beginning of the lease; held, that it was the right and duty of the lessee, who was in contemplation of law in possession Nashville: J. D. Park. from the moment of the delivery of the lease, to eject the trespasser, and not the duty of the lessor. And there must be something which in law amounts to an eviction or an expulsion of the tenant to work a suspension of the rent. Compromise by Administrator.-Alexander et al. v. Kelso et al. Same court. Opinion by Nicholson, C. J. Where an administrator was satisfied it was prudent in him to make a compromise, pending a suit, as he had no means of the estate to carry on an expensive suit, and he believed there was real doubt as to his ability to make the party liable; held, that he has a right to compromise such a case, and in that way promote the interest of his estate. Foreign Corporation-Removal of Causes to U. S. Circuit Court. -Home Ins. Co. v. Davis, p. 238. Opinion by Campbell, J. Where a corporation in order to secure the benefits of transacting business in a state other than the one of its creation, undertakes to submit itself to the jurisdiction of the courts of such state, such condition is lawful, and precludes the right of transferring causes from such state courts to the courts of the United States. [NOTE.-This position has been overruled by the Supreme Court of the United States. See Home Ins. Co. v. Morse, 20 Wall. 445. Constitutional Law-Enlargement of City Boundaries by Legislature-Alteration of Boundaries of Representative Districts.The People, ex rel., etc., v. Holihan, p. 116. Opinion by Graves, C. J. The legislature has no authority to enlarge the boundaries of a city by annexing to it parts of adjoining townships so as to interfere with the boundaries of IGAN. Vol. 29. By HOYT POST, State Reporter. Lansing: W. S. George representative districts, at a time when any alteration of such boundaries is Recent Reports. REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF MICH & Co. 1875. This is a volume of 528 pages, with 116 additional pages of index, and a table of cases. The index consists of a reprint of the matter contained in the syllabi, with copious cross-references. The table of cases, covering 11 pages, is in itself a sort of index, the name and style of each case being followed by the Italic head-lines of the syllabi, thus indicating the subject-matter of each decision. The book has a good, honest appearance, the pages being wide and full, and lightly leaded. It contains reports of 91 cases, and covers two full terms and part of a third. We note the following decisions : Construction of Grant-Omission of Grantee's Name.-Newton v. McKay, p. 1. Opinion by Graves, C. J. To constitute a valid conveyance the grant must undoubtedly distinguish the grantee from the rest of the world; but if, upon a view of the whole instrument he is pointed out, even though the name of baptism is not given at all, the grant will not fail. Mortgage-notes-Notes Payable in Bank-Payment-Assignment of Mortgage.-Pease v. Warren, p. 9. Opinion by Cooley, J. Where notes secured by mortgage, were made payable in bank, the payor deposited, in his own name, in the same bank, funds to meet such notes, with instructions to the bank to take them up. The mortgage was assigned without endorsement of the notes. The bank refused payment to the assignee because the notes were not endorsed. Held, that such deposit was not a payment of the notes; that the bank was not the agent of the payee; and that the mortgagee's assignee was not precluded from foreclosure. Conditional Sale of Piano-Bailment.-Whitney v. McConnell, p. 12. Opinion by Campbell, J. A contract for sale of a piano upon installments, providing that the piano should remain the property of the vendor, but in possession of vendee, creates a bailment in the vendee; and a condition against removal was valid. Seaman v. Written Contract- Subsequent Parol Contract. O'Hara, p. 66. Opinion by Cooley, J. A parol arrangement, of a character not required to be in writing, is not objectionable on the ground that it varies a prior written contract on the same subject; the written contract, and the subsequent oral contract may both be valid so far as they are not inconsistent; and to the extent that they are inconsistent, the one latest in time will control. Construction of Will-Devise of Proceeds of Lands when Sold -Vested Remainder in Fee-Restrictions upon the Right of Alienation.-Mandlebaum v. McDonell, p. 78. Opinion by Christiancy, J. A will which provided for sales of realty and distribution of proceeds among the devisees, subject to the widow's life estate, without stating who should make the sales, but clearly expressing the intent to deprive the devisees from making them, held to confer a naked power of sale on the executors, but vested no title in them. Such devise held to be in legal effect a devise of the remainder in fee. The devisees may, collectively or individually, elect to take the land in lieu of proceeds, although the will should expressly forbid such election. A restriction in the will, upon the right of the devisees to sell their interest during a period named, is invaled. The maxims, "Modus et conventio vincunt legum;" "Conventio privatorum non potest publico juri derogare;" and "Fortior et potentior est dispositio legis quam hominis," considered and applied. The authorities upon the subject of restrictions upon the right of alienation, reviewed. Constitutional Law-Construction of Statute-Mandamus.The People ex rel. etc., v. The Common Council of Detroit, p. 108. Opinion by Cooley, J. A statute will not be held unconstitutional because it attempts too much and confers some powers that are inadmissible, provided in the main the powers conferred be lawful; except when such statute creates a system, and the part which is legal can not stand by itself. Mandamus granted to compel the respondents to act upon nominations made by the mayor under an act to establish a board of public works, the act being held not open to the objection that it takes away from the council its general legislative authority. forbidden by the constitution. Execution Sales-Partition-Redemption.-Whiting v. Butler,p. 122 This case, in the language of Mr. Justice Cooley, "presents important questions regarding the rights of purchasers at execution sales." It is too long to give a full abstract. The following points were decided in the opinion o Cooley, J., concurred in by Christiancy, J.; Campbell, J., and Graves, C. J., holding contrary opinions. On Dec. 28, 1865, one Drury bought at execution sale, Theodore J. Campau's undivided interest as one of nine tenants in common in certain lands; in January 15, 1866, Godfrey, Dean & Co. caused an execution to be levied upon the same interest, and on the sale became purchasers, and on June 29, 1867, a sheriff's deed in due form issued to their assignees who conveyed to one Butler; no steps were taken within the statutory period to redeem from the Drury sale, but on March 27, 1867, there was deposited with the register of deeds, but by whom is a disputed question, the amount of Drury's bid and interest, which on the next day was paid by the register to Drury, who endorsed upon his certificate of sale a receipt for the amount in full of his certificate; in June, 1872, Drury quit claimed to Theodore J. Campau, and in Oct., 1872, the sheriff executed a deed to him as Drury's assignee; Campau and his co-tenants, treating the Godfrey, Dean & Co. execution sale as ineffectual, proceeded to have partition made in chancery of their Campau, who occupied by his tenant Whiting; Butler brings ejectment to reinterests, whereby the parcel in controversy in this suit was set off to Daniel J. cover the undivided ninth part of the premises under the title derived from the latter sheriff's sale. Held, by Cooley and Christiancy, JJ., that these proceedings under the Drury execution operated to defeat the force and effect of the sale and deed under the later execution, so as to be a legitimate defence to this action of ejectment; that a partition among tenants in common to which an execution purchaser of the undivided interest of one of them was not made a party will not affect the rights of such purchaser; that the interest of an execution debtor in lands levied on and sold, is something more than a mere right of redemption, he still has the legal title, not divested by a mere failure to redeem so long as the sale has not been carried into effect by sheriff's deed; that the mere right to redeem can not be the subject of an execution sale; that it was immaterial whether the transaction between Drury and the register of deeds amounted to redemption or not, if it did, the plaintiff could have the legal title without conditions, if not, he would still have it subject to defeat when the Drury sale was carried into effect by deed, either of which would entitle him to recover in ejectment; that the equitable right of an execution purchaser to demand and receive a sheriff's deed, after the period of redemption has expired, is one which may be lost by waiver at any time before the conveyance is actually made. Resulting Trust-Entry of Lands by One in the Name of Another -Weare v. Linnell, p. 224. Opinion by Cooley, J. Weare located lands under military warrants, in the name of the defendant, then a minor, and without his knowledge or consent, averring that it was done to make compensation to defendant for future services while a minor, as one of Weare's family. Defendant did not remain long in Wearc's family, and only knew of the location of the land in his name when he was about leaving, when he promised to make a conveyance to Weare, and release any claim he might have in the land. After becoming of age he refused to so convey, but conveyed to Moffat, his co-defendant. Held, that no resulting trust could be declared in Moffat for the benefit of Weare; nor could Weare claim a vendor's lien, and the bill was ordered to be dismissed. Ministerial Duties-Governor-Mandamus.-The People ex rel., etc., v. The Governor, p. 320. Opinion by Cooley, J. This was an application for an order requiring the governor to show cause why he does not issue his certificate showing that the Portage Lake and Lake Superior Ship Canal and Harbor have been constructed in conformity with the acts of Congress making a land grant for the same, and the acts of legislature conferring the grant upon a corporation. The court held that when such a duty is devolved on the governor, as in this case, it will be presumed to have been done because of his superior judgment, discretion, etc., and such duty can seldom be considered as merely ministerial, and declined to entertain the application. The opinion reviews at some length the several relations and duties of the officers of government, legislative, judicial and executive. Riparian Rights-Use of Running Water.-Dumont v. Kellogg, p. 420. Opinion by Cooley, J. As between several neighboring proprietors of water-power, the priority of appropriation and use of the same gives to one proprietor no superior right to that of the others, unless it has been continued for a period of time, and under such circumstances as would be requisite to establish rights by prescription. Neither has the right to so use the waters as to interfere with the use of the same by the others. A fair participation and reasonable use by each is what the law seeks to protect. The general usage of the country in similar cases is competent evidence of what is a reasonable and proper use of a common right. Contract-Construction of Railroad-Changes in Surface after Survey.-Grand Rapids, etc., R. R. Co. v. Van Dusen, p. 4 31. Opinion by Christiancy, J. A great fire having swept over the line of the survey of a railroad after the survey and before the contract was made, and burned away the soil so that it required more earth for fills and embankments than the survey called for, the jury were permitted, in a suit for determining the amount of work done, to take such fact into consideration. C. A. C. Legal News and Notes. -FIFTEEN FULL BLOWN KISSES, and several others in the bud, were recently showered upon a New Jersey lawyer in open court, by a fair young client whom he had saved from the disgrace of imprisonment. -READERS of the article, "Estoppel and Registration," ante, p. 665, are referred to Wag. Stat. p. 1351, sec. 3, for the Missouri law upon the subject discussed by the learned judges in 9 R. I. 258. We are indebted for the suggestion to J. K. Cravens, Esq., of Kansas City. -JUDGE LAWRENCE, of the Supreme Court of New York, holds that the voluntary enlistment of an alien in the militia of this state is as abinding as the act of a citizen. This is right. The obligation is one which no foreigner need assume, but, once assumed, it should be enforced.-[N. Y. Herald of the supreme court next following such conviction, and more than twenty days thereafter, wherever such term shall be held, any law to the contrary notwithstanding," etc. On the 20th of April, 1875 in the St. Louis Criminal Court, John Steptoe was convicted of robbery, first degree, and sentenced to the penitentiary for ten years. An appeal was taken to the supreme court, and Messrs. James W. Hutchings and P. W. Fauntleroy, his attorneys, removed the case to Jefferson City, under and by virtue of the above act. Attorney-General Hockaday and Mr. Fauntleroy agreed to submit the case on brief, and on Friday last Mr. Fauntleroy appeared before the supreme court at Jefferson City, and made a motion to advance the case on the docket, so that it could be decided at once upon brief. But the supreme court refused to entertain the case at all, upon the ground that the court had no jurisdiction, the above act, under which the case was removed to Jefferson City being unconstitutional and void,as being in conflict with art.6, sec.5, Const. Mo., which provides that the state shall be divided into convenient districts, and that the supreme court, when sitting in either district, shall have jurisdiction over cases originating in that district only. So Messrs. Fauntleroy and Hutchings will withdraw the papers and file them in the supreme court at St. Louis, and in the meanwhile Steptoe will remain in the penitentiary.—[St. Louis Republican. -THE Melbourne Argus says: An important question as to the law of copyright in newspaper telegrams has lately been debated in the supreme court, The proprietors of the Argus pay a large sum for the purpose of obtaining the latest telegrams from Europe. Any newspaper proprietors who may wish to publish the telegrams so obtained can do so by paying a contribution towards the expenses incurred. The proprietor (Mr. Luke) of the Gipps Land Mercury made an agreement to pay for the right of re-publishing the telegrams. This agreement was carried out for several months, when Mr. Luke cancelled it. The European telegrams received by the Argus, were, however, republished in another form, as from a Melbourne correspondent of the Mercury, with the preliminary words, “ It is reported," or “ The news about town is." This was considered a breach of the copyright which the proprietors of the Argus possessed in the telegrams, and as there was another newspaper at Sale that did contribute towards the expenses of the receipt of the telegrams, a suit was instituted in the equity court to restrain Mr. Luke from re-publishing the telegrams. It was argued for the defendant that, as the telegrams were matters of news, any one could re publish them without breach of the copyright act. Mr. Justice Molesworth held, however, that the plaintiffs had a property in the telegrams, and that no one could republish them without the permission of the persons to whom they had been sent in the first instance. An injunction was, therefore, granted to restrain the defendant from publishing the telegrams. THE election which took place on Saturday last in Missouri, resulted in the adoption of the new constitution by a majority of probably four to one. It was opposed by what is known as the bummer element" in politics, and also by a small sprinkling of honest men. It gives Saint Louis a new appellate court composed of three judges; provides for the separation of Saint Louis city from Saint Louis county, and for the erection of separate municipal governments; it puts a muzzle on corrupt legislation, and works many other changes to nu-THE "RING" SUITS at New York have raised afresh the question merous to be recapitulated. As it goes into effect on the 30th of November, how far a lawyer is justified in defending a client whom he knows to be guilty, it is important that public officers should study its provisions. Various edi- and in receiving his fee from money he knows to have been illegally actions have been published, among them are printed four stereotype plates of quired. On this subject the following extract from the address of the Hon. the Saint Louis Republican, and circulated to our local subscribers as a supplement to this journal, The best, however, is an edition by Mr. Myer, a dil- University, may be of interest. He says: Charles S. May, delivered to the last class at the Law School of Michigan "I protest against such a docigent and painstaking member of the Saint Louis bar, and published by Mr. trine as a wrong to society and a slander upon the law. I insist that the first Gilbert of this city. It is in pamphlet form; indicates in every instance the duty of the lawyer is to society and the law, and that his duty to his client is changes which the new instrument has introduced, and contains many referalways subordinate to this higher duty. All this is involved in his lawyer's ences to judicial decisions. It may be had of the publishers of this journal. oath. He is first of all sworn to uphold the constitution of the state. Upon -THE Levant Herald says, a circular which the Grand Vizier has just ad- this rests the whole civil fabric of society. Next he is to be true to the court, dressed to the provincial governors, may dispel some misconceptions which The court represents and stands for the sanctity and majesty of the law itself. seem to have arisen in the minds of foreigners regarding the provisions It is the interpreter and vindicator of the law. Last, he is to be true to his of the Ottoman law of inheritance. According to the document in client. But he can not be true to his client in any just sense while he is false question, it would appear that Rayah women have lately, in several to society and the law. That is not the kind of truth he is to keep with his instances, attempted to leave their property to children or relatives client. His oath pre supposes no conflict between his client's interest and the of theirs who have assumed or inherited foreign protection. But interests of the state. He is not sworn, therefore, to help a guilty man, whom foreigners have no right, the circular says, to inherit property from he knows to be guilty, to escape at the expense of law and justice. The inRayah women, and the Grand Vizier justifies this prohibition by the fol- discriminate and over-zealous defence of criminals without thought or care as lowing reasons: In the first place," his highness writes, "the right of pos to their guilt; the unreasonable theories; the unscrupulous tactics; the browsession and the right of inheritance are two very distinct things; secondly, the beating of witnesses; the reckless assertions and the bold affectations of truth treaties in force do not arrogate for foreign subjects the privilege of inheriting and innocence, these are things which have brought criminal advocacy into property from Rayahs; and thirdly, property is thus mostly kept in the pos- disrepute with the people; which has kept so many able self-respecting lawsession of Ottoman subjects, a state of things which is favorable to the state.' yers from this department of practice, and made the very term criminal lawThe circular concludes by stating, that foreigners in Turkey can inherit prop- yer signify want of character and honor; have almost made, indeed, the aderty only from persons who are likewise foreign subjects, and who have more-jective stand for a designation of the kind of lawyer rather than the kind of over obtained regular possession of such property in accordance with the rules laid down in the last treaties. " -UNCONSTITUTIONAL.-The legislature of Missouri, on March 27, 1873, passed the following act: "An act to provide for the more special determination of criminal cases in the supreme court. Section 1. Any person being convicted upon an indictment for felony, and no supersedeas is granted, may, if he so elect, take an appeal or sue out a writ of error, returnable to the term practice. No; the highest public duty is always to the state, and nothing must conflict with that. The lawyer should never forget that he is a citizen. He should never lend himself or hire himself to any service which will harm or hurt society. His noble profession does not require him to do this. It does not demand that he be the unscrupulous aider and helper of ruffians and lawbreakers, nor a mere unthinking human machine of advocacy. It has other and higher commands for him; other and nobler work for him to do," SEYMOUR D. THOMPSON, Editor. ST. LOUIS, FRIDAY, NOVEMBER 12, 1875. NATIONAL BANKS AND THE USURY LAWS.-We expected to present our readers this week with the text of the opinion of the Supreme Court of the United States, in the case of Farmers and Mechanics Bank v. Deering, which holds that the usury laws of New York are not applicable to the National Banks, and which overrules the decision of the New York Court of Appeals in the case of First National Bank of Whitehall v. Lamb; but although we sent for the opinion last week we did not receive it in time for this issue of the JOURNAL. We shall present it to our readers next week. Hon. JOHN F. DILLON { closest amity and community of interests." Senor Marcoartu also delivered an eloquent address. The winning of the first prize by an American over so many competitors, furnishes a much more fitting occasion for indulging in a feeling of national pride, than the winning of an international rifle contest or base ball match; and the members of the profession of legal journalism should feel an especial pride that so high an honor has been achieved by one of their number. Railway Mortgages and Mechanics' Liens. Elsewhere we publish a decision of the Supreme Court of Iowa--Nelson v. Iowa Eastern Railway Co.-on a question A Prize Awarded to an American at the Social which has assumed considerable importance, the right of Science Congress. mortgage was made before the road was built, and hence, was intended to cover property not in existence at the time of its execution. We are not familiar with the adjudications on this question, and presume there are but few in the books; but we have read this opinion several times, and are not satisfied with the conclusion it reaches, nor with some of the reasoning by which that conclusion is arrived at. The position taken by the plaintiffs' counsel, that where a mortgage is made to cover after-acquired property, the rights of the mortgagee in such property are subordinate to any liens or incumbrances which may subsist against it at the time it comes into the hands of the mortgagor-which appears to be a well-settled rule of equity-is not in our judgment satisfactorily answered by the court. Nor do we perceive much force in the position of the court that a specific lien could not be enforced against the ties because they were incapable of removal without destroying the railroad track. We can not see how it would hurt the road-bed, rails, or even the spikes, to unfasten and remove the ties from the track. It might cause a temporary preference between a railway mortgage bondholder and a Some three years ago, Senor Don Arturo Marcoartu pro- mechanic or material-man who has contributed labor or maposed two prizes, one of £200, and the other of £100, for terials to the building of the road. It will be seen that the the best essay on the question, " In what way ought an inter-court gives a preference to the bondholders, although the national assembly to be constituted for the formation of a code of international law, and what ought to be the leading principles on which such a code should be formed." The money was offered to the British Social Science Association, which accepted it, and caused the offer to be made known in different countries of Europe and America. Essays were to be sent in, at the option of the writers, in English, French or German, and a committee was appointed to decide on their merits, consisting of Mr.Westlake, Q. C., and two othe: London barristers, Mr. H. D. Jencken and Mr. E. Wendt. Thirtysix essays were handed in. The result of the competion was announced at the Congress of the Association which recently met at Brighton. The first prize was awarded to Mr. Abram Pulling Sprague, of New York, one of the editors of the Albany Law Journal, and the second to Mr. Paul Lacombe, a retired advocate of the French bar, who is now engaged in writing a history of France. The New York Tribune's correspondent states that Lord Aberdare, president of the Congress, delivered the prizes, each accompanied by an illuminated certificate, and proposed that the thanks of the Associa-obstruction to travel, and it might not. The thing is done tion should be given both to the donor of the prizes, and to the gentlemen who had won them. His speech assured the members that though Senor de Marcoartu was an enthusiast, he, Lord Aberdare, is of opinion that it is time for international law to begin its triumphs, and that the warlike period should be closed. "Nations," said Lord Aberdare-not perhaps without some thought of compliment to Mr. Sprague's nationality" will only be secure when by universal opinion the moral greatness of a Washington is set above the intellectual superiority of a Napoleon." In congratulating the winners, Lord Aberdare expressed gracefully enough, a natural chagrin that neither of them should be English. But there has been fair play, which was the great thing, "and if prizes were to be won by strangers, we shall all feel satisfaction in the fact that the first prize has been accorded to a native of the great country so closely allied to us in blood and language, and that the second has fallen to a citizen of that nation which is our nearest neighbor, and which, so long regarded as a natural enemy, is now bound to us by ties of the every day. Old ties are constantly taken out, and new ones put in, on all railroads, and without the stoppage of any train. But even if this were not so, we do not see how an argument ab inconvenienti can be resorted to to annul the provisions of a statute as positive as section 1855 of the Iowa Code of 1860, under which a special lien was claimed, which reads as follows, and which, by the provisions of a subsequent statute, was extended to railroads: "The lien for the things aforesaid or work, shall attach to the buildings, erections or improvements for which they were furnished or the work was done, in preference to any prior lien, or incumbrance, or mortgage upon the land upon which said building, erections or improvements have been erected or put, and any person enforcing such lien, may have such building, erection or improvement. sold under execution, and the purchaser may remove the same within a reasonable time thereafter." To illustrate this decision by an analogous case, suppose a land-owner should determine to build a house, and in order to secure the contractor, should execute a mortgage upon the land and also upon the house who argue the facts and interpert these instructions as their thereafter to be built. Would the specific lien of a material- cunning may suggest—is the most wretched and uncertain. man who should furnish doors and windows for the house, It often happen's in Missouri that the judge, after instructing against those doors and windows, be postponed to the jury, sends them into another room in charge of an officer, the mortgage of the contractor? Or would it not where the attorneys argue the case before them. Where the rather be held that the doors and windows en- judge thus abdicates his seat and abandons the control of the tered the house encumbered with the material-man's jury to the advocates, it is as impossible to tell in what dispecial lien, which lien could not be divested by the rection the jury may drift, as it is to predict the direction of attaching of a prior mortgage, made to cover them before the flight of a herd of wild asses in a desert. they belonged to the mortgagor? Any other conclusion, it seems to us, smacks too much of taking one man's property away from him and giving it to another without compensation. At all events we doubt whether the Iowa decision will satisfy the common sense of practical men, or be regarded by them in any other light than as frittering away the benefits of a plain and positive statute, made to protect the mechanics and producers of the state, in behalf of bond-holders, who, whatever their rights may be, must be presumed to have purchased the secureties subject to any infirmities which might intervene under a general law of the state then existing, of which they were chargeable with notice. For a contrary view of this question, see Walker v. Mlss. Val., etc., Ry. Co., 2 CENT. L. J. 481. The Jury System. It is not among the legal profession alone that a growing feeling against the jury system, as at present constituted, is discernible. Within the past few years several influential lay journals have denounced the system and called for its abrogation. The strongest expressions of opinion on this subject which we have lately seen are found in an article in an recent number of that scholarly periodical, Scribner's Monthly. It is a subject on which much could be written, but upon which little ought to be written without deep and attentive study. It is easier to tear down than to build up; and whatever changes are introduced in the jury system should be gradually introduced and carefully guarded, so as while relieving the system as far as practicable of its present imperfections, not to destroy the main features of the system itself-the representation of the people at large in the administration of justice. Rightly or wrongly, there We find the following in the Legal Gazette: always has been and always will be a certain amount of prejuThe CENTRAL LAW JOURNAL referring to the recent lynching and murder of the man Shell, in Ohio, by a mob of citizens, says: dice against lawyers; and the repose of society seems to re'Such law as that administered in this case is but one step better than no law at all, and finds its quire that the administration of justice should not be comonly justification in communities such as mining camps remote from civiliza-mitted exclusively to them. tion, where no other law can be invoked. And law administered by twelve unskilled men, played upon by cunning advocates, is but one step better." We are aware of the growing opposition to the system of trial by jury that is steadily creeping into the minds of the legal profession; but we were hardly prepared to hear it stated so strongly as this. We are not among the number of those who look with disfavor on juries and their verdicts. On the contrary, we think that in the majority of cases, substantial justice is better at tained at their hands than would be reached by any other means whatever. Without wishing to enter for one moment upon the discussion of a subject which has been so frequently and thoroughly argued and considered, we desire to enter our protest against the comprehensive way our neighbor has of putting it. Lest the strong language above quoted may induce others to misapprehend our views, we beg to say that we are not in favor of abolishing the jury system. We are, however, in favor of gradually introducing such reforms into the system as shall do away with the necessity of a unanimous verdict except where the verdict convicts an accused person of a capital offence, and also such as shall give judges greater control over them. We think that in most cases it should be made the duty of the judge in charging the jury to sum up the evidence and to advise the jury distinctly of his views as to the weight of it. The reason of this is that a skilled lawyer whose whole life has been addicted to the examination of witnesses is much more capable of penetrating motives and determining the value of testimony than twelve unskilled men. It is well known that in a very great number of cases, notably those where a woman or a corporation is a litigant, the verdicts of juries reflect only human weakness or popular prejudice, and turn the administration of justice into a roaring farce. Next to a trial by Athenian dicasts, or by a Roman or a Rocky Mountain mob, a trial by a jury under the system which obtains in Missouri-a system which obliges the judge first to instruct the jury, and then turns them over to the advocates Removal of Causes-Right of State Court to Act on the Petition - Copyright in Foreign Dramatic Compositions. The question as to the right of a state court to determine the sufficiency of a petition and bond for removal of a cause 1875 (2 CENT. L. J. 209), was passed upon last week by to the federal court, under the act of Congress of March 3, Lindley, J., of the Circuit Court of Saint Louis county, Missouri, in the case of Shook and Palmer v. Rankin et al. The plaintiffs claimed the exclusive right to represent, in the United States, a dramatic play known as "The two Orphans," and sought to enjoin the defendants from representing it in Saint Louis. After the petition for an injunction had been filed, together with an answer and replication, the defendants presented a petition for the removal of the controversy to the United States court. It should be observed that the preliminary movements in the case had been so rapid that counsel had not had time to collect the decisions expounding the recent act, which are only to be found in the law journals. The court, therefore, not being advised as to the drift of judicial sentiment with regard to the meaning of the statute, and the matter being one of first impression, overruled the application and awarded a provisional injunction, forbidding a representation of the play by the defendants. examination of the recent decisions expounding the act of 1875, convinced the defendants' counsel, Messrs. Hill and Russell, that that the filing of the application and bond for removal ipso facto suspended the jurisdiction of the state court, and that the injunction, which had been awarded after the tender of their application and bond had been made, was therefore void. They therefore advised their clients to |