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drawing the same, where the facts have been fully obtain a judgment, could hasten the period within stated to him by the assured. Ib. which the power must be fully exercised.

JURISDICTION.

1. State and federal courts.-The fact that an insurance company, created by the laws of another state, does business in this state in conformity to its laws regulating the transaction of insurance business by foreign companies, and that its agents here are authorized to accept service of process from our state courts, does not deprive it of the right to transfer to the federal courts (under the 12th section of the judiciary act of 1789) a suit commenced against it in a court of this state and by a citizen thereof. Knorr v. Home Ins. Co. of N. Y.

2. (Paine, J., is of opinion that so much of the judiciary act as provides for the transfer of causes from the state courts to the federal courts is invalid. Cole, J., though of the same opinion, acquiesces in the application of the act to this cause, to save loss and embarrassment to the parties. Dixon, C. J., holds the act valid.) Ib.

3. Where one is restrained of his liberty within a state by a military or other ministerial officer of the United States, the state courts have jurisdiction to inquire, by habeas corpus, into the legality of his detention, and to discharge him if detained without authority of law. In re Tarble.

4. So much of the act of congress of March 2, 1867, constituting ch. 196, acts of the second session of the thirty-ninth congress (14 U. S. Statutes at Large, 558), as provides that a citizen of one state, who has commenced an action in a court of another state against a citizen thereof, may remove it to a federal court, is invalid. Whiton v. Ch. & N. W. R. W. Co.

LANDLORD AND TENANT.

Tenant for life, in possession, who takes a tax deed for taxes due before his tenancy commenced, if he can acquire title at all thereby, holds it for the benefit of the reversioners as well as for his own. Phelan v. Boylan.

MUNICIPAL CORPORATIONS.

Where a city was authorized to build a harbor, issue its bonds for the price, and raise money by taxation to pay the interest and principal thereof as they should become due, but, on its failure to issue the bonds, the contractor obtained a money judgment for the amount, and the city had no property on which execution could be levied,-Held, that the city council had the power, and would be compelled by mandamus, to levy and collect a tax to pay such judgment.

Cole, J., rests the decision mainly upon a provision in the charter subjecting all the property of the city to taxation for the support of the city government and the "payment of its debts and liabilities," and the acts which authorized the city to construct the harbor and thus create a liability therefor; holding that any limitation in the charter upon the power of the council as to the amount and objects of taxation could not affect a subsequent grant of authority to incur the liability, and that the grant of power to issue bonds, etc., was merely additional to the power already existing to raise money by taxation to meet such liability.

Dixon, C. J., holds that the power to levy a tax to pay for the harbor was conferred by the acts authorizing its construction; that no default of the city or subsequent act of the legislature could deprive the contractor of the benefit of such power; but that the city, by compelling the plaintiff, through its default, to

Paine, J., dissents. State ex rel. Hasbrouck v. Milwaukee.

NOTICE.

Of equitable title to land. —Where P., being the equitable owner of sixty acres of land, of which three-fourths of an acre had been cleared and fenced, left it in charge of a person living on an adjoining tract, who chopped wood upon it and cultivated the clearing, the land being in a densely timbered and sparsely settled country, and the neighbors generally understanding that it belonged to P.,-Held, that this was such a possession as constituted notice of P.'s right to one who took a mortgage from the holder of the legal title. Wickes v. Lake.

RAILROADS.

1. The city of Watertown issued its bonds in aid of the Milwaukee and Watertown Railroad Co., which guarantied their payment. Afterward that company became consolidated, in pursuance of law, with the Milwaukee and La Crosse Railroad Co., which subsequently sold the Watertown division of its road (including what had previously been owned by the Milwaukee and Watertown Co.) to a third corporation, which sold it to the defendant. Held, that while the guaranty of said bonds became part of the general indebtedness of the Milwaukee and La Crosse Co., after the consolidation, defendant, as purchaser of the Watertown division of its road, is not liable for any part of such indebtedness. Wright v. M. & St. P. R. W. Co.

2. Where part of a tract of land has been taken for a railroad, if the market value of the residue has been reduced by reason of the road crossing it, the owner is entitled to damages for such depreciation. Snyder v. W. U. R. R. Co.

3. In such case witnesses, who are farmers owning land in the vicinity, may be asked how much, in their opinion, the land has been thus depreciated. Ib.

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to by the assignee, the bankrupts and all the creditors who have proved their debts. In re Sanger & Scott. U. S. Dist. Ct., S. D. of N. Y., 5 N. B. R. 54.

APPEAL.

Motion to dismiss.—Where a decree is entered in the

district court in favor of complainant, and respondent files notice of appeal giving requisite bond, and citation issues within ten days and in due time, but the transmiss upon appeal not having been filed in the circuit court until May, 1871, after two terms had gone over, on motion to dismiss appeal because transmiss had not been filed at next term after the appeal, held, motion denied because time to dismiss appeal had been enlarged by agreement of counsel, which is permissible, and therefore this case does not come within decision In re Alexander, 3 N. B. R. 6. Baldwin, assignee, v. Rapplee. U. S. Cir. Ct. N. Y., 5 N. B. R. 19.

COPARTNERSHIP.

Where nearly all the debts against a bankrupt copartnership, comprised of three copartners, have been purchased in the interest of two of the copartners, by two of their friends, to whom the money for such purchase was furnished by those partners, the third partner, not contributing, objects to the proof of the purchased claims as illegal, although it is not denied but that they were originally bona fide claims against the copartnership, held, that a decree will be entered providing for the payment in full, by the assignees, of the unpaid and unpurchased proved debts, with interest; for the payment into court of the amount of the unpaid unproved debts, with interest; for the payment of the commission of the assignees, and the charges, fees, disbursements and expenses of their attorney and counsel, and the fees of the register and clerk; for the payment to the two purchasers (friends of two of the bankrupts) of the amount paid out by them in the purchase of the copartnership debts, together with interest; for the transfer of the remainder of the estate by the assignee to the bankrupts, jointly, by proper instruments. In re Lathrop et al. U. S. Dist. Ct. S. D. of N. Y., 5 N. B. R. 43.

JURISDICTION.

Where a plea in abatement sets up that the writ, issued in an assumpsit by assignee to recover money paid by bankrupt by way of preference, does not show jurisdiction, and that in point of fact there is none, because proceedings in bankruptcy are pending in another district, writ does not allege that any bankruptcy proceedings are pending within this district, but it will be presumed that plaintiffs were appointed assignees in the other district, for otherwise they would have taken issue on the plea. Held, that jurisdiction is only vested in the courts of the district in which bankruptcy proceedings are pending for the adjustment and collecting of matters arising therefrom, and for such suits as this one. The United States district court of Rhode Island cannot entertain this case, because proceedings were begun in the state of Massachusetts. Sherman et al. v. Bingham et al. U. S. Dist. Ct. Mass., 5 N. B. R. 34.

PARTNERSHIP.

Where one member of a firm files his petition in one state and requests his copartners to join him in the proceedings, which they refuse to do, but subsequently appear by attorney and consent to an adjudication, whereupon all the members of the firm are adjudicated bankrupt, and upon the application for the discharge

of the bankrupts specifications are filed in opposition to their discharge, on the grounds of a want of jurisdiction, -Held, that section thirty-six, taken in connection with section eleven, supplemented by general order XVIII, should be construed together. Section thirty-six provides, that "if such copartners (that is, copartners in trade, who are sought to be adjudged bankrupts on the petition of themselves or any one of them of any creditor of theirs) reside in different districts, that court in which the petition is first filed shall retain exclusive jurisdiction over the case.' "" The court which first obtains jurisdiction over the subject-matter of the petition, and over the person of the petitioner, shall have exclusive jurisdiction over the case; that is, over the subject-matter of the petition, and over all the copartners, if the non-petitioning copartners be brought in by appropriate process. Objections to jurisdiction overruled. In re J. R. Penn et al. U. S. Dist. Ct., S. D. of N. Y., 5 N. B. R. 30.

PRACTICE.

1. Where a bank went into liquidation in accordance with the provisions of a state law in 1868, pursuant to the decree forfeiting its charter, and commissioners were appointed to administer the affairs of the bank, and they accepted the trust, giving the necessary bonds, which trust they continued to fulfill for a year, when an involuntary petition for the adjudication of the bank and the commissioners bankrupt was filed in the United States district court of the district, alleging fraudulent preferences in payments by the commissioners, and also praying that a provisional warrant might issue to take possession of the assets of the bank then in the hands of the commissioners, a decree in bankruptcy was made, and injunctions granted against the commissioners. The commissioners, within ten days of the decree, filed a petition for the review by the circuit court of the decree and order of the district court, and the circuit court affirmed the decree, etc., of the district court. Morgan et al. v. Thornhill et al. U. S. Sup. Ct., 5 N. B. R. 1.

2. Application for an appeal to the United States supreme court being immediately made, was refused by the circuit judge; but more than ten days after the decree of the circuit court an appeal was allowed by an associate justice of the United States supreme court. Held, that decrees in equity, in order that they may be reexamined in this court, must be final decrees, rendered in term time, as contradistinguished from mere interlocutory decrees or orders, which may be entered at chambers, or, if entered in court, are still subject to revision at the final hearing. If this. rule were not followed in allowing appeals to the United States supreme court, every question arising in the courts may be indefinitely protracted, and the beneficent purposes of the bankrupt act be thereby defeated. Appeal dismissed for want of jurisdiction.

PREFERENCE.

1. Where a creditor who has been carrying and renewing a note, enters up judgment by virtue of a warrant of attorney attached, and issues execution, the debtor having, three days before, absconded, leaving his property and creditors unprotected, the business community and newspapers being in speculation as to his departure and means, and the creditor having come to the conclusion that "there was something wrong," and that his interests as well as those of the surety on the note require that judgment should be entered, he obtains such a preference as is avoided by the thirty

fifth and thirty-ninth sections of the bankrupt act. Golson et al. v. Nethoff et al. U. S. Dist. Ct., N. D. of Ill., 5 N. B. R. 56.

2. The simple fact that a man doing a large business, pays under special circumstances a large discount for a loan, is not notice of insolvency to the creditor, it being shown that at the time similar commercial paper was selling at high rates. Ib.

3. The preference upon a judgment note is not obtained when the warrant of attorney is given, but when the judgment upon it is entered. Ib.

4. If, at the time of the entry of judgment, the creditor has knowledge of his debtor's insolvency, or notice of such facts as make it reasonable to believe him insolvent, he is guilty of intending a fraud upon the act. And where he thus executes the dominant power, such entering of judgment is an act of bankruptcy, participated in by the creditor, and all advantages obtained under it are in violation of the law. Ib.

5. It is not a sufficient answer to say that the warrant of attorney was given to secure a bona fide debt, and that at the time the creditor has no knowledge of his debtor's insolvency. The question depends upon the knowledge or information which the creditor had at the time he made his warrant operative. Ib.

6. Where the debtor was a merchant and judgments had been recovered against him, executions thereon issued and levy made on his stock of goods, conceded valid liens, an indorser for the insolvent, whose liability had become fixed by the protest of two several notes, purchased the entire stock of goods, giving as part payment his two checks (which were duly paid), the one to pay the sheriff for the amount of the levy and conceded value, and the other to cover his liability as indorser on notes then due and to become due, the amount of such purchase being the full value of the stock and more than could have been realized at a forced sale, it being agreed the purchaser should account for and pay over to the insolvent the surplus arising from the sale to an amount larger than that included in the checks. In March, 1869, bankruptcy proceedings were commenced against the insolvent, alleging a fraudulent preference, etc., and an adjudication followed. The assignee brings his action to recover the value of the goods, and for a decree that the purchaser be prohibited from filing claims against the bankrupt's estate, or even being entitled to a dividend in the moneys advanced by him to pay the lien admitted valid. Held, that as it was evident that there was an intent to secure a preference, but even if no such intent existed it must be held that the transfer was in fraud of the bankrupt law, and must be set aside on that ground, and the indorser taking the transfer held to account. That the bankrupt law has provided the best mode of administering the estate of an insolvent, and will tolerate no attempt by individuals to devise and

carry into effect some other plan inconsistent

therewith, nor justify such an attempt by the excuse that they thought such plan wiser or better. That defendant must, therefore, account for all moneys in his possession, and that he must pay the market value of all the property he cannot deliver, with interest thereon from the time he sold or appropriated it to his own use from the date of the sale, and also must pay the amount of his collections, with interest since the demand. Cookinham et al., assignees, v. Morgan et al. U. S. Cir. Ct., N. D. of N. Y., 5 N. B. R. 16.

SCHEDULE, AMENDMENT OF.

1. A register has the right to allow amendments to the schedules on the ex parte application of the bankrupt, at any time while the cause is pending before him, but it is the better practice, if there shall have been an appearance on the part of creditors, to issue an order to show cause, etc., and to require due notice of such application to be given. In re Heller. U.S. Dist. Ct., S. D. of N. Y., 5 N. B. R. 46.

2. It is the duty of the bankrupt to amend his schedules so as to make them conform to the facts, and that the filing of specifications does not deprive him of that right or release him from that duty. Ib.

3. The register should allow all necessary and proper amendments whenever a proper cause therefor is shown. Ib.

WIFE AS CREDITOR.

The bankrupt's wife may prove as a creditor against his estate in bankruptcy, for money realized by him out of property which she held as her separate estate under the statutes of Massachusetts, if the evidence clearly shows that the transaction was intended to be a loan and not a gift. In re Blandin. U. S. Dist. Ct. Mass., 5 N. B. R. 39.

BOOK NOTICE.

On Representative Government and Personal Representation, based in part upon Thomas Hare's treatise, entitled "The Election of Representatives, Parliamentary and Municipal." By Simon Sterne. Philadelphia, 1871: J. B. Lippincott & Co.

We received this work a short time previous to the destruction by fire of the establishment of our publishers, and were unable to notice it at the time. It is a well-written treatise, of some two hundred pages, upon the subject of representative government, and is devoted to the advocacy of what is known as personal representation.

As is well known, under our present system of electing representatives, for both the national and state legislatures, the individual voter must cast his ballot for a candidate to represent the district where the voter resides, and for that candidate absolutely. It thus happens that if the person voted for does not receive enough votes to elect him, his supporters are unrepresented-their votes have been thrown away. Other disadvantages are claimed to follow the present system, the principal one, however, being the necessity for the voter to choose between two parties, while he does not wholly approve of the doctrines of either. To remedy these defects an ingenious scheme of balloting is here set forth, of which it is impossible within the limits of this article to give even an outline. This scheme allows the voter to cast his ballot for any person he desires, no matter where such person resides, and to cast it contingently for any number of others. For example, he can cast a vote for A., with directions to the canvassers that if the vote is of no use to A. it shall be counted for B., and if of no use to B., for C., and so on ad infinitum, and all this without regard to the locality where A., B., C., etc., reside, or may be candidates.

The system set forth by Mr. Sterne certainly bears marks of careful, thoughtful study, and, so far as we can see, would, if honestly carried out, result in just what he intends. The members of our representative bodies, instead of being divided into two great parties, would be split into a dozen or more small ones. If he thinks this would be an improvement on the present

style, we are confident that he has never watched closely the proceedings of a legislature composed of the adherents to more than two political parties. Any man who has had to do with such a body will tell him, that when you there introduce, in sufficient number to influence its action, individuals who hold themselves responsible to neither of the great parties, you introduce an element of discord and corruption. But even this element is always influenced by the knowledge that its power is transient and uncertain, and that one, not both, of the parties of which it is for a time so independent, will shortly call it to account. What would be its conduct if its tenure was certain, and it looked only to its friends for judgment? The conflicts of the club and the bar-room would be transferred to the public assembly, and conspiracy and corruption take the place of party faith and party discipline. We must say, that, with all its evils, we prefer the old way.

NOTES AND QUERIES.

Editor Law Journal:

Sir-Section 267 of the code of procedure, as amended in 1870, provides that "upon the trial of a question of fact by the court, its decision shall be given in writing, and shall contain a statement of facts found, and the conclusions of law separately; and, upon a trial of au issue of law, the decision shall be made in the same manner, stating the conclusions of law. Such decision shall be filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly four days thereafter." Will some of your readers inform me whether, under this provision, the decision on the trial of a question of fact must be filled within the twenty days, and whether judgment thereon must be delayed four days from the filing thereof?

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Sir-The inquiry of "Lex," in a recent number of the JOURNAL, may be easily answered, if a little thought be brought to bear upon it.

A deed from a married man, unaccompanied by his wife, does not cut off the right of the wife to dower in the premises conveyed.

The execution being issued against the husband alone, and the title to the estate passing to the purchaser by a deed from the sheriff making the sale, cannot convey a greater estate or title than the person against whom the execution issued had, and, being virtually the deed of the husband alone, cannot extinguish the wife's right of dower. QUIDAM.

Sir-In the number for July 15, 1871, of the ALBANY LAW JOURNAL, at page 482, "Lex" makes a query, which I answer in this way:

"No act, deed or conveyance of the husband, or judgment or decree confessed by or recovered against him, will prejudice the wife's right of dower." Scott v. Howard, 3 Barb. 319; Denton v. Nanny, 8 id. 618. Yours, respectfully,

C. A. PARKER.

THANK YOU.-Speaking of the ALBANY LAW JOURNAL, the Bench and Bar for July says: "The fact that the JOURNAL has so soon recovered its vitality, and now appears regularly, speaks volumes for the enterprise of its publishers. Concerning its editorial conduct we can find nothing to criticise. It is fresh, interesting and lively, and is, take it all in all, our best legal periodical. Its weekly visits to a lawyer's office cannot fail to be welcome, and we heartily wish it a long continuance in its successful career."

THE KU-KLUX AT MEMPHIS.-A correspondent living at Memphis corrects our statement that persons were on trial in that city charged with being Ku-Klux, and that the federal soldiers were guarding the court. He states that these Ku-Klux trials were held at Oxford, Miss., and not at Memphis; "that there has never been a moment since the organization of the court in the spring of 1864 that any violence has occurred in or about the court, or that the judge or any officer has been menaced or molested, or that any soldiery of any kind has been present or near to the court for its protection." Our statement did the good people of Memphis wrong, and we gladly make the amende honorable.

LEGAL NEWS.

The Bar Association of the city of New York has a membership of 488 persons.

The insurance registry law lately enacted in Kentucky, is said to be a precise copy of the New York law, defects and all.

Ex-Judge Austin, formerly of California, a native of Nova Scotia, and a half-brother to United States Senator Howe, died at Victoria on the 13th inst.

Hamilton College has conferred the degree of LL.D. on Hon. Sanford E. Church, chief judge of the court of appeals of this state, and on Hon. John W. Dwinelle, justice of the supreme court of California.

In the case of Mrs. Fair, under sentence of death, an appeal has been filed in the supreme court, and a writ of supersedeas issued. The appeal will be heard in October, and there is no likelihood of her being hanged before January next.

The Tichborne case has been adjourned until November. It is stated that since the adjournment some of the sailors who were on the Belle at the time of her loss have been discovered, and will be introduced as witnesses on the resumption of the trial. The nature of this forthcoming evidence is not disclosed.

We understand, says the London Law Times, that the governing body of the Inner Temple intend to make examinations compulsory upon all their students before calling them to the bar, and that a sum of £2,000 per annum will be devoted to providing an efficient staff of lecturers and examiners.

The president has made the following appointments: James Neville, United States attorney for Nebraska; John S. Armstrong, agent for the Indians of New Mexico, Albiquim agency; Henry A. Eastman, register of the land-office, Prescott, Arizona; H. Latham, of Arizona, commissioner of centennial exhibition at Philadelphia.

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The Albany Law Journal.

ALBANY, AUGUST 5, 1871.

THE BAR AND JUDICIAL NOMINATIONS. The great mistake of this century in this state was, undoubtedly, that action of the people, or their political leaders, which made our judiciary elective, and compelled our judges to return to the people, at comparatively short intervals, for re-election. This, we believe, was rather the work of demagogical party leaders than of the people. The natural tendency of the body politic, in states in which the great mass of the people are honest and intelligent, is analogous to that in the natural body; insensible wounds are healed and the operations of the various parts accom'modate themselves to the existing state of affairs, so that health and vigor remain unimpaired, even after the system has received serious and dangerous shocks. If a dangerous innovation is made in the state, the people, without organized combination, but still by common consent, instinctively adopt such a line of action as shall most tend to neutralize its evil effects and prevent injury to the common weal. In no instance, perhaps, has this natural conservative tendency of the people been more clearly demonstrated than in the history of our judiciary since the adoption of the constitution of 1846.

Recognizing the difficult and delicate character of the responsibility which had been thrust upon them unsought, and perceiving with a sure insight the result of reason in the individual but seeming like instinct in the mass, that the selection of judges should be delegated by the masses upon some compact body of men, whose training, experience and personal and business acquaintance with the probable candidates should render them peculiarly fit for the duty, the people tacitly placed the whole matter in the hands of the bar, and at primary judicial conventions sent to the nominating convention such lawyers as seemed to be acceptable to the rest of the profession. They never trammeled these delegates with instructions, but, leaving them free to follow the dictates of their judgment, accepted the result of their deliberations as the best attainable under the circumstances.

The profession accepted this responsibility, and discharged it with the same fidelity, the same care and deliberation, which they exercised in the conduct of other business intrusted to them and the employment of other delegated powers.

The result of this conservative action of the people was soon apparent; the selection of the judges was almost wholly withdrawn from the whirlpool of political strife, and out of the reach of those baneful influences which have been gradually demoralizing and corrupting the other departments of government, and for a long time there was no apparent declension in the

standard of professional excellence and personal integrity required of candidates for judicial honors; the bench of the state maintained in a great degree, if not wholly, its former respectability and influence, and the long line of appalling evils which the new system had threatened seemed happily averted. But, while in all organisms, the conservative or vital forces are always at work, repairing injuries, accommodating themselves and the system to new necessities and emergencies, and removing foreign and deleterious substances, which have intruded themselves, there is also insidiously busy the force of natural decay and disintegration; and in this republic the track of this elemental force is most conspicuous in the unhealthy creation of a new profession, the political. A class of men have grown up who devote their entire time and attention to political intrigue and wire-pulling; the manipulation of caucuses, and the general management of party machinery; who control and secure party nominations, and accept their fees as unblushingly as if they were honorably earned. Here men, by dint of thorough organization and complete understanding among themselves, have obtained, in our larger cities particularly, the entire control of party machinery, and the people have little to do but to record the edicts of their practical masters. Sometimes, indeed, the people revolt against this new power, and by a spasmodic effort destroy programmes, "smash slates," and cover the intrigants with confusion and defeat; but these spasms usually exhaust their force in one campaign, and while the people repose on their laurels, the "professionals" creep back to their strong-holds and reign as absolutely as before.

Throughout the entire state the offices in the legislative and executive departments are practically in the control of this class. But it is only in the city of New York that they have as yet succeeded in taking away from the people and their chosen agents, the lawyers, the selection of judicial officers. The results have been most grievous and appalling. The gravest judicial scandals have arisen; and accusations of judicial bribery and corruption are freely made and defiantly and irrepressibly published. Whether these accusations are true or false is nothing to our purpose. That they have become possible and exist at all is of itself a sufficient demonstration of the destructive tendency of allowing judicial nominations to fall into the hands of corrupt, venal and irresponsible professional politicians. Already the bench in New York, and, as a sort of corrollary, the bar also, has lost more of the popular respect and confidence than it can regain in a generation, and this loss carries with it as an inevitable sequence the demoralization and pro tanto disintegration of the social organism.

To arrest the extension of these evils into the country districts of the state, requires the united and zealous efforts of the bar. The example of the New York politicians has not been without its effect, and now certain Hungry Ones in various parts of the state

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