Hon. JOHN F. DILLON, Editor. } ST. LOUIS, FRIDAY, NOVEMBER 13, 1874. S. D. THOMPSON. Ass't Editor. SUBSCRIPTION: {$3 PER ANNUM, in Advance ERRATA. An important typographical error occurred in that. We left lawyers at liberty to make contracts for their compensation like the article on Seduction, in our issue of October 30th. The last word of the 8th line, p. 539, should read "indispensable," instead of "indisputable." The latter word conveys an entirely incorrect idea,-one at variance with the whole tenor of the note. The allegation of service may, of course, be dis puted. other persons. It is notorious that an immense amount of legal business is now transacted in this state, by the most reputable lawyers, under agreements, precisely like that impliedly censured by the court in Voorhees v. McCartney, although seldom, we hope, entered into under the same circumstances. It is an affectation at this day to frown upon this mode of doing legal business. Indeed, some of our courts have held, that the existence of such an agreement between attorney and client, in a particular case, cannot be proved on the trial in defence, because it is immaterial and may tend to prejudice the plaintiff's case with the jury. Cook v. New York Central Railroad Co., 5 Lans 501. We can see nothing immoral or impolitic in such arrangements, and we can see no reason for mulcting the attorney in costs because he has chosen to run his risks of getting any compensation for his services in the suit. We think the legislature Another error of less importance occurred in making up would do well to look to this matter at their next session, if the case of Voorthe last page of our paper last week. The printer inadvert-hees v. McCartney really decides what the reporter seems to think. The other decision is English. We refer to ently left out the article from the Western Jurist, on Law the action of the Benchers of the Middle Temple in expelling from their membership Schools, to which we called attention editorially, as being a barrister who stole some law books. We cite this case, not to conpublished "elsewhere." We now insert it "elsewhere" in demn it, because we do not see how the benchers could have done otherwise, but to draw public attention to the facts which led to the commission of the By a typographical error the name of Judge Dewey, in the article in our last week's issue on the Jurisprudence of Massachusetts, was spelled Demey. this number. other unfortunate in the same predicament. He was sent to prison for six months, and served out his term, and on his release his brethren who had expelled him from their fellowship, presented him with six hundred pounds sterling, and created a fund for the relief of poor barristers. But they could not give back to this unfortunate gentleman his honor. He was a victim to the ideas of professional compensation which prevail in England. A barrister may not solicit pat ment, and stole these books and sold them to buy bread for himself and an Speaking of errors reminds us that our brother of the Wash-crime. The simple truth was, this lawyer was starving for want of employington Law Reporter has a proof-reader who is not infallible, and therefore he has been obliged, like ourselves, to publish a table of errata. In correcting some errors which occurred in Justice Olin's opinion in the celebrated soap-factory case -Bates v. District of Columbia-we find the following: “On page 263, 2d column, 2d paragraph, after the word 'knock,' read in the head.'" A very material amendment. The printer knocked that sentence so badly in the head that it hadn't any head left. Compensation of Lawyers-Champerty. The Albany Law Journal, for September 26, animadverts severely on Voorhees v. McCartney, 51 N. Y. 387, decided by the New York Commission of Appeals. This case holds, according to the syllabus, that an attorney, who brings an action in the name of another, in which he is beneficially interested by virtue of an agreement by which he is to have a portion of the recovery as compensation for his services, is liable, like the plaintiff, for the defendant's costs, and that his liability has not been affected by the provision of the New York code (§ 303) legalizing such agreements. Thisliability was created by statute, 2 R. S. 616, section 44, which enacts, that in an action brought in the name of another, by an assignee of a right of action or a person beneficially interested in the recovery, such assignee or person is liable for costs the same as the plaintiff. ronage; he must wait until an attorney brings it to him, and starve if it does not come. A lawyer cannot make an agreement that his compensation shall depend upon, be measured by, and be paid out of the recovery; that is champertous and immoral, and he must wait for responsible clients. Now is it not a little rediculous, not to say perfectly monstrous, that in the largest city and the most enlightened and wealthiest nation on the globe, a gentleman of education and culture, a member of the higher branch of the most influential of the learned professions, is reduced by fashion's caprice, and by the absurdity of the laws, to such an extremity, that he must starve, go to the alms-house, or steal? We applaud the humanity of our English brethren. We should have liked to contribute our mite to the fund for the relief of that most unfortunate lawyer. But we should like still better to be able to aid in bringing about a reform of their customs and their laws, so that a probability should exist that such a thing could never occur again. mental nonsense in regard to the members of the learned professions. A physalary: a lawyer must not have any pecuniary interest in the result of his chent's cause. We had supposed that the sturdy sense of our profession, in sician must not advertise; a clergyman must not care for the amount of his this state at least, had weeded out this last idea. We knew it was legally ex the lawyers who accept retainers in the way to which we refer, as "speculaintolerable," we confess we fear the old folly In the course of this article, the editor of the Albany Lawtinct; we hoped it was morally defunct. But when a high judge stigmatizes Journal makes some observations on the policy of prohibit-tors," and implies that they are " ing champertous agreements between attorney and client, is not quite dead. It is these ideas that lead to such tragedies as we have which are worthy of attention. He says: Now, the old statute was a part of a system under which lawyers were viewed and treated very much as malefactors. The legislature and the public seemed to regard them as a class of reprehensible persons, who were not to be paid for their services like other people. If they were permitted to work, it was mainly for the public benefit and behoof, like the convicts in our prisons. It was meritorious to restrict their compensation to a meagre pittance. It was even esteemed by many a venial offence to cheat a lawyer out of his pay. Agreements between attorney and client in respect to the subject-matter of the liti gation, were always construed as frauds upon the client. The public were to be protected against these ravening wolves by legislation, and if the costs of a uit could be charged upon the lawyer, it was a joke that made godly persons laugh. But when common sense and the code came in, we tried to change all recorded in the case of the London barrister. They are too good for human nature's daily food," at least for that portion of our profession who are still at the bar, and who expect from those of their number whom they elevate to the bench, and there maintain on comfortable salaries, the liberty to gain bread and not stones, fish and not serpents. -HON, ROBERT A. HILL, Federal District Judge of Mississippi, has written a letter to one of the newspapers of that state, describing a trial of a negro boy, for an assault with intent to commit rape on a white girl, and congratulating the judge who tried the case, Hon. Orlando Davis, of the state circuit court, on the impartial manner in which the trial was conducted, and on the fact that a public example was made, such as would allay the public excitement incident to the commission of such an offence, and prevent public justice being vindicated by a mob. Spies and Informers. We have read with much interest a pamphlet entitled "Re marks made before the Committee of Ways and Means, in Advocacy of Changes in the Customs-revenue Laws, proposed by the merchants of New York, Boston, Philadelphia and Baltimore (reprinted from the minutes,' with additions), by Cephas Brainerd, of New York." That portion of this argument which will have chief interest to the reflective reader, is where Mr. Brainerd proceeds to show that the best writers who have adverted to the subject, have condemned both the justice and the expediency of employing informers in the enforcement of penal laws. We cannot refrain from quoting the language in which he presents the views of several eminent writers: "Lord Auckland declared himself most emphatically against it in his remarkable treatise. He says (Eden's Principles of Penal Law, 2d Ed., p. 322): "Beccaria expresses his conclusion as a philosopher, and his indignation as a man, in regard to the system of informers and rewards, in principle like that we now seek to overthrow, in these burning but truthful words (Essay on Crimes, Ch. 36; Ed. of 1767, p. 151): With one hand the legislator strengthens the ties of kindred and friendship, and with the other, rewards the violation of both. Always in contradiction with himself, now he invites the suspecting minds of men to mutual confidence, and now he plants distrust in every heart. To prevent one crime de gives birth to a thousand. Such are the expedients of weak nations, whose laws are like temporary repairs to a tottering fabric. At one time treachery is punished by the laws, at another encouraged. "Frederick Hill is the great modern English authority or this branch of penal science. He states the results of the best experience and thought to a very recent date, in the following extract (Vide, Crime: Its Amount, Causes and Remedies. 1853, p. 134-135): But not only is the police in some places almost a nullity, and in others in sufficient in number and too much separated in different parts, but the mode of remuneration, though improved, is still faulty, awaiting no doubt a furthe progress in public opinion. It is still too much directed to detection, and ta little to prevention, thus reserving high rewards till great offences have bea committed, instead of making all rewards simply dependent on the sma amount of crime. So long as the police receive large premiums for the appr 'The first step towards the punishment of offenders is their formal accusation. In all governments which have any mixture of political freedom, this accusation should, as in England, be public. Private informers are the proper instruments only of despotic governments. Every idea of liberty and security is lost, where the ends of justice are suffered to be sought by such means. "So, too, Bentham, who gives this reason for his condemna-hension of great criminals, it is continually their interest (although many ~ tion (On Rewards, p. 161): The danger lies in the temptation given to such officers to increase their emoluments by increasing the difficulties of those who need their services. The abuse is easily introduced. "So Colquhoun, writing, out of the fullness of his wide experience as a London magistrate, says: Many excellent rules are established by the legislature and the magistrates; but while it is seldom the interest of the depraved or dishonest part of these two classes to adhere to such rules, by what means is the execution to be in sured, so as to operate as a complete protection to the public? Surely not by the operation of the law through the medium of common informers. Since, independent of the invidious nature of the office, experience has shown that the public good rarely enters into the considerations of persons of this description, who look merely to their own emolument, frequently holding up the penalties as a rod by which money is privately extorted, and the parties laid under contribution for the purpose of allowing them to continue in the prac tice of these abuses, which the engine used for this nefarious purpose was meant to prevent. Treatise on the Police of London, 1796, p. 191. “And again (id., pp. 203-204) the same eminent author, after giving a schedule of the rewards offered for the detection and conviction of offenders, says: These rewards apply to ten different offences, and ought, no doubt, to be a considerable spur to officers to do their duty; but it seems as if there is some radical error in the system. Since, however atrocious most of these offences are which have been selected at different periods by the legislature as objects of reward, it is extremely doubtful whether this measure has not, in some degree, tended to the increase of a multitude of smaller crimes which are pregnant with the greatest mischiefs to society. It is by deterring men from the commission of smaller crimes (says the Marquis Beccaria) that greater ones are prevented. While rewards are limited to higher offences, and conviction is the indispensable condition upon which they are granted, it is much to be feared that lesser crimes are overlooked, and the public subjected, in many instances, to the intermediate depredations of a rogue, from his first starting upon the town until he shall be worth £40. Colquhoun, in the latest (6th) edition of his famous book, retains the condemnatory language just quoted, and adds the following suggestion as a substitute for the system paralleled by that we here assail (The Police of the Metropolis, p. 393): By altering the system entirely, and leaving it in the hands of the judge who tries the offence, to determine what reward shall be allowed, with a power to grant or withold, or limit or increase the same according to circumstances connected with the trouble and risk of the parties, whether there is a conviction or not, a fairer measure of recompense would be dealt out, the public money would be more beneficially distributed, so as to excite general activity in checking every species of criminality. them are no doubt too honorable to be so swayed) that great criminals shoul exist; their motive for the extinction of such offenders being scarcely greate than that of a poacher for the extinction of hares and pheasants, and great as is this objection to the practice of offering large rewards, it is not the greatest for the terrible cases of "blood money" that have sometimes come to light show that official villains have been found, under the stimulus of these rewards to get up evidence against persons who were wholly innocent. By way of climax to the effect produced by these quota"Was Dean Swift tions, Mr. Brainerd eloquently adds: wrong when he said, informers are a detestable race of peo ple'? Did Wilberforce-statesman as he was-surrender his temperate, gentle and charitable nature when he said that the practice of employing spies and informers was as inju rious to the best interests of the country and the constitution as it was repugnant to every principle of morality and religion': Had the equable and humane spirit which characterized the whole life of Sir Samuel Romilly for once abandoned this unrivaled legislator when, while declining to say 'whether there may or may not possibly exist cases in which private treachery may be encouraged for the sake of discovering public guilt,' he desired to diminish the employment of spies and informers, for the purpose of removing a plague from the bosoms of the peaceful and well disposed inhabitand as an agreeable service to the God of truth'? Vide Romilly's Speeches, vol 2. pp. 307-309. Are the merchants who appear here, making a request, which is meekness itself when compared with these expressions, fitly characterized, as they have been by the special agent, as infernal thieves, and their representatives"? I ants,' * think not." honest man. * * To our mind the vital objection to the system of informers may be stated in a few words: The truth never injures an more it is told concerning him, the brighter he shines in the It is his shield—his tutissimum refugium. The estimation of honest men. It is only dishonest men who deal in falsehood and love darkness and mystery. If, therefore, informers told only the truth, the cry against them would come from the dishonest alone; and it is not to shield the dishonest that penal laws are instituted. informers do not always tell the truth; but on the other hand, But, unfortunately, there is too much reason to believe that, under the stimulus of be final, and the matter proceed without further steps on that the prospective rewards which constitute their incentive to subject. And if it shall appear that such number and amount exertion, they habitually pervert the truth, and act corruptly have not so petitioned, the court shall grant reasonable time, and oppressively. In illustrating his position, Mr. Brainerd not exceeding, in cases heretofore commenced, twenty days, has, as above shown, quoted from several writers familiar with and, in cases hereafter commenced, ten days, within which the workings of the system in the British Empire. We are other creditors may join in such petition. And if, at the tempted to illustrate ours by another quotation, showing how expiration of such time so limited, the number and amount the system worked in that great fabric of civilization on shall comply with the requirements of this section, the matter which have been reared the present states of Europe. It is of bankruptcy may proceed; but if, at the expiration of thus stated by Gibbon, in describing the condition of the such limited time, such number and amount shall not answer Roman Empire at the time of Constantine: the requirements of this section, the proceedings shall be dismissed, and, in cases hereafter commenced, with costs. " Two or three hundred agents or messengers were employed under the jurisdiction of the master of the offices, to announce the names of the It has been held that this provision applies to all cases com annual consuls, and the edicts or victories of the emperors. They insensi-menced since December 1, 1873, in which at the time of the bly assumed the license of reporting whatever they could observe of the conduct either of magistrates or of private citizens; and were soon considered as the eyes of the monarch and the scourge of the people. Under the warm influence of a feeble reign, they multiplied to the incredible number of ten thousand, disdained the mild though frequent admonitions of the laws, and exercised in the profitable management of the posts, a rapacious and insolent oppression. These official spies, who regularly corresponded with the palace, were encouraged, by favor and reward, anxiously to watch the progress of every treasonable design, from the faint and latent symptoms of a disaffection, to the actual preparation of an open revolt. Their careless and criminal violation of truth and justice was covered by the consecrated mask of zeal; and they might securely aim their poisoned arrows at the breast, either of the guilty or the innocent, who had provoked their resentment, or refused to purchase their silence. A faithful subject of Syria, perhaps, or of Britain, was exposed to the danger, or at least to the dread, of being dragged in chains to the court of Milan or of Constantinople, to defend his life and fortune against the malicious charges of these privileged informers. The ordinary administration was conducted by those methods which extreme necessity can alone palliate; and the defects of evidence were diligently supplied by the use . of torture. Bankrupt Act-Number and Value of Creditors. I passage of this amendment (June 22, 1874), the petitions for adjudication remained to be acted upon, but it does not disturb judgments rendered or adjudications in force prior to the date of its taking effect. Re Obear and Re Thomas, I Central Law Journal, 362, Dillon, J.; s. c., 10 N. B. R. 153; Re Angell, 1 Central Law Journal, 363, Longyear, J.; s. c., 6 Chicago Legal News, 341; 10, N. B. R., 73; Re Raffauf, 6 Chicago Legal News, 341, Hopkins J.; s. c., 10 N. B. R, 69; s. c.,sub nom. Raffaux, 1 Central Law Journal, 364, note; Re Rosenthal, 1 Central Law Journal, 364, Krekel, J.; s. c., 6 Chicago Legal News, 342; 10 N. B. R., 191; Re Pickering, 10 N. B. R. 208, Withey, J.; Barnett v. Hightower, 10 N. B. R 157, Hill, J.; Re Comstock, 6 Chicago Legal News, 413, Deady, J. Some of these cases go so far as to assert that it would have been beyond the power of congress to pass an act which should have the effect to disturb adjudications already made. Re Comstock, supra; Re Angell, supra; Re Raffauf, supra; Re Pickering, supra. Most of the questions which, so far, appear to have arisen Before any of these decisions had been published, it was under the amendments of June 22, 1874, to the bankrupt act, held by Mr. District Judge Blodgett, in Re Scammon, that in relate to the number of petitioning creditors, and the propor- cases pending at the time when the act of 1874 took effect, tion of the total indebtedness of the alleged bankrupt, repre- the petitions must be amended so as to show that creditors sented by them, in compulsory cases. Most of these decis- of the requisite number and value have joined therein; but ions are decisions of district judges, and are hence without the question of the effect of the act upon prior adjudications authority outside the district in which they were rendered; was not considered. I Central Law Journal, 328; s. C., 10 but, nevertheless, by collecting and presenting, as we shall en- N. B. R. 166. The same ruling was made by Mr. District deavor to do in this note, a brief synopsis of them, some little Judge Blatchford in Re Scull, 1 Central Law Journal, 399 ; assistance may be rendered toward making the administrations. c., 10 Albany Law Journal, 214; 10 N. B. R. 165. But of the bankrupt law "uniform" "throughout the United in this last case there had been no adjudication at the time States." of the passage of the act of 1874, although the petition had been filed before that time. In Re Joliet Iron and Steel Company, 10 N. B. R. 60 ; s. c., sub nom. Re Scammon, 6 Chicago Legal News, 328, Mr. District Judge Blodgett rules that in all petitions pending in involutary bankruptcy, commenced since December 1, 1873, where no adjudication had been had, the petitioner must file a sworn amendment to his petition alleging that the petitioners represent one-fourth in number and one-third in amount of the creditors of the bankrupt. Both in this case and in Re Scammon, the leaned judge holds that it is unnecessary that this allegation should be positive; it may be upon information and belief. In Re Hill, 10 N. B. R. 133, a petition in involuntary bankruptcy was filed since December 1, 1873, and on March 18, 1874, a memorandum was made by Blatchford, J., on the papers signed with his initials, "let an order, for adjudication be entered," but no action was taken by counsel on either side to have the order entered until after the 22d of June, 1874. Held, that an adjudication Section 39 of the bankrupt act, as amended by $12 of the act of June 22, 1874, contains the following language: "And in all cases commenced since the first day of December, eighteen hundred and seventy-three, and prior to the passage of this act, as well as those commenced hereafter, the court shall, if such allegation as to the number or amount of petitioning creditors be denied by the debtor, by a statement in writing to that effect, require him to file in court, forthwith, a full list of his creditors, with their places of residence, and the sums due them respectively, and shall ascertain, upon reasonable notice to the creditors, whether one-fourth in number and one-third in amount thereof, as aforesaid, have| petitioned that the debtor be adjudged a bankrupt. But if such debtor shall, on the filing of the petition, admit in writing that the requisite number and amount of creditors have petitioned, the court (if satisfied that the admission was made in good faith) shall so adjudge, which judgment shall had not been made, and that such an order could not be entered demanded a jury trial, and had since filed a demurrer, he was unless the petition was made to conform to the requirements required to file a list of his creditors and the amount of their of the new law. A rule established by Mr. District Judge claims. Warren Savings Bank v. Palmer, 6 Chicago Legal Hill, after fully considering this question in Barnett v. High- News, 366, McCandless, J.; s. c., 10 N. B. R. 239. But in tower, supra, provides that all involuntary cases commenced Re Scammon, 7 Chicago Legal News, 42, Mr. District Judge before December 1, 1873, and not adjudicated on the 22d of Blodgett holds, that if it appears that the requisite number and June, 1874, may proceed as though the petition were amended amount of creditors have not joined in the petition, the court so as to conform to the provisions of the above section, will dismiss upon motion without requiring the debtor to file unless objection is made by the defendant. 10 N. B. R. 164; a schedule. "It would be intolerable," said the learned s. c., I Central Law Journal, 384. A contrary view was taken judge, "if any one or two creditors, upon either a real or preby Mr. District Judge Longyear, in Re Buchanan, 1 Central tended claim, could by a single allegation, in the words of the Law Journal, 456. And in Re Keeler, 10 N. B. R. 419, it amendment, compel a business man to spread upon the recordwas held by Mr. District Judge Blatchford, that the absence a statement of his liabilities. Such a fishing petition cannot of the proper allegation as to the number and amount of peti- be entertained under the act as amended." We cannot altotioning creditors is not supplied by an admission in writing gether concur in this sentiment. We cannot conceive what that the requisite number and amount have joined in the pe- principle of public policy is subserved by shielding an insoltition. Such an admission to be noticed by the court must vent debtor in concealing from those who have given him. be in writing; must be signed by the debtor, and his signa- | credit, and confided in him the true state of his liabilities. ture must be duly authenticated, and it must be verified by From the fact that one man has asked and received credit of oath. Even then the court must be satisfied that the admis- another, the law ought to imply a promise on his part to rension was made in good faith before it can adjudge that der to his creditor a fair, open and truthful account of his the requisite number and amount have petitioned. Ibid. condition when required, and nothing less than this can satisfy In Re Burch, 10 N. B. R. 150, it was ruled by Mr. District that honesty and good faith which should always subsist Judge Withey, that a prima facie case must be made by the between debtor and creditor. Of course, if such a petition is petition as to the number and value of creditors, this being a a mere "fishing" petition, designed to trifle with the time and material and substantial fact, before the court can acquire process of the court, it ought to be rejected, and its authors jurisdiction to grant an order to show cause. Therefore, punished for a contempt. But, nevertheless, the truth wrongs when a petition was filed on the 25th day of June, 1874, no man. None but the dishonest man of business-he who three days after the amendatory act of 1874 took effect, and has dealt fraudulently or designs to deal fraudulently with his the petitioning creditor was at the time ignorant of the pass- creditors-can be interested in concealing from them the true age thereof, this ignorance did not excuse his failure to com- state of his liabilities. The law-or at least equity-loves the ply with the above requirement, and his petition was held not truth, courts the light, and despises concealment as the comamendable, but was dismissed. But see Re Simmons, 1 Cen-panion of fraud; and while a court of justice should not pertial Law Journal, 440, Longyear, J.; s. c., 10 N. B. R. 253; and Re Williams and McPheeters, 7 Chicago Legal New, 49, Woodruff, Circuit J. If the debtor denies that the requisite number and value of creditors have joined in the petition, his denial must be verified. Re Stienman, 6 Chicago Legal News, 338, Blodgett, J.; Re Hymes, 10 N. B. R. 433, Blatchford, J. The list of his creditors filed by the debtor should be verified in like manner, by the oath of the debtor. Ibid. mit itself to be trifled with, it can have no interest in keeping creditors in the dark as to the condition of their insolvent debtor. In the same case it was also held that the court would hear affidavits and evidence offered by either party, and would order the person verifying the petition to be examined before the register. After the requisite number of creditors have joined in the In this case, by a compari-petition, a portion of them will not be permitted to withdraw so as to break the quorum; but it seems that the proceedings may be dismissed, if all join in the application. Re Heffron, 6 Chicago Legal News, 358; s. c., 10 N. B. R. 213. son of the list of creditors filed by the debtor, with the list of petitioning creditors, it appeared that the provable debts due the creditors who had petitioned, did not equal one-third of the aggregate provable debts due to such of the creditors of the debtor as held provable debts exceeding the sum of two hundred and fifty dollars, and a reference was made to the clerk to determine the issue. Ibid. The affirmative of such an issue is on the petitioning creditors. Ibid. The debtor must attend at the hearing before the clerk in such a case, and submit to an examination as to all matters pertinent to the issue. Ibid. The clerk must, in such a case, send written or printed notices by mail, postage pre-paid, to all of the creditors named in the list, at the addresses given in the list, of the time and place of reference, and its object, at least ten days before the hearing; such notice to contain a copy of the list, with names, places of residence and amounts. Ibid. Where petitions were filed against an alleged debtor since December 1, 1873, and the debtor had made a denial, and had The same section of the bankrupt act as amended, provides that "the petition of creditors under this section may be suffi ciently verified by the oath of the first five signers thereof, if And if any of said first five signers shall so many there be. Under this provision it has been held, that where there are Company. verification by or on behalf of each petitioner is required. Federal Court Jurisdiction-Union Pacific Railroad Ibid. When a petition is filed, the court so far acquire jurisdiction, notwithstanding the insufficincy of the verification, that it may allow it to be amended. Ibid. The same section as amended also contains the following language: "And in computing the number of creditors, as aforesaid, who shall join in such petition, creditors whosé re- | spective debts do not exceed two hundred and fifty dollars, shall not be reckoned. But if there be no creditors whose debts exceed said sum of two hundred and fifty dollars, or if the requisite number of creditors holding debts exceeding two hundred and fifty dollars, fail to sign the petition, the creditors having debts of a less amount shall be reckoned for the purposes aforesaid.” UNITED STATES, ON RELATION OF HALL et al. v. [S. C., ante, 288.] United States Circuit Court, District of Iowa, October Term, 1874. I. Union Before Hon. JOHN F. DILLON, Circuit Judge, and 44 JOHN LOVE, District Judge. Pacific Railroad-Jurisdiction-Mandamus-Service of Process. The Circuit Court of the United States for the District of Iowa, under the acts of Congress relating to the Union Pacific Railroad Company, has jurisdiction in mandamus to compel that company to operate its road as required by law, if any part of the road is in the district of Iowa; and under the act of June 20, 1874, service of pro cess may be made upon the president or general superintendent of the company, found in the district of Iowa. The alternative writ of mandamus awarded at the last term was served upon the president and general superintendent of the company at Council Bluffs, in this district. The marshal's return on alternative writ of mandamus is as fol "This writ came into my hands on the 10th day of June, A. D., 1874, and on the same day I served the same on Sidney Dillon, president of the within-named defendant, the Union Pacific Railroad Company, at the transfer grounds of said company, in the city of Council Bluffs, county of Pottawattamie, Iowa, by deliverwithin writ, which he then and there waived, and on the same day ing to him a true copy thereof, and offering to read to him the I served the within writ on S. H. H. Clark, general superintendent of the within named defendant, the Union Pacific Railroad Company, by delivering to him a true copy thereof, and offering to read the original, which he then and there waived; all done at the transfer grounds of said Union Pacific Railroad Company, in the city of Council Bluffs, Pottawattamie county, Iowa." An interesting exposition of this provision by Mr. District Judge Blatchford, will be found in Re Hymes, 10 N. B. R. 433. The views of the learned judge may be condensed as follows: In determining whether the requisite proportion of petitioning creditors have joined in the petition, such creditors only should be reckoned whose provable debts ex-lows: ceed two hundred and fifty dollars. And if the petitioning creditors whose provable debts exceed the sum aforesaid, constitute one-fourth in number of the creditors holding provable debts exceeding said sum, the requirment as to the number of petitioning creditors is satisfied. So where the petition is filed on behalf of creditors holding provable debts exceeding the sum of two hundred and fifty dollars, in order to ascertain whether the amount of the provable debts held by them is equal to one-third in amount, only the provable debts of creditors which exceed two hundred and fifty dollars must be reckoned. And the requirement of the statute is satisfied if the provable debts due to such petitioning creditors equals one-third of the provable debts due to creditors holding provable debts exceeding the sum of two hundred and fifty dollars. And it is not necessary that the amount of the provable debts of the petitioning creditors should be equal to one third of all the provable debts. The true construction | of the above proviso, that "if there be no creditors whose debts exceed said sum of two hundred and fifty dollars, or if the requisite number of creditors holding debts exceeding said sum fail to sign the petition, the creditors having debts of a less amount shall be reckoned for the purpose aforesaid," requires that when creditors having debts of a less amount than two hundred and fifty dollars are reckoned at all, they must be reckoned for all purposes, and in such case the petitioners must constitute one-fourth in number of all creditors, and the amount of their provable debts must be equal to one-third of all the provable debts. In Re Frost, 7 Chicago Legal News, 42, it is ruled by Mr. District Judge Blodgett, that only those creditors are to be counted whose debts are unconditionally provable. Those claiming liens or holding security cannot be reckoned. —A SUIT has recently been tried in the United States District Court for the Eastern District of Philadelphia, before Mr. Circuit Judge McKennan, in which a check for $100 had been raised by the drawee to $2,100, and paid by the bank; the action being by the drawer of the check to recover of the bank the $2,000 improperly paid. Judge McKennan is reported to have charged the jury that if they believed, from the testimony and from an inspection of the check, that there was nothing unusual in its appearance, nothing which would have been sufficient to put a careful person upon his guard, then they should find for the defendants; if otherwise, their verdict should be for the plaintiffs. The paying tellers of several banks having testified that there was nothing in the appearance of the check, as raised, to excite suspicion, the jury rendered a verdict for the bank. The company made a special appearance, and excepted to the sufficiency of this service, and moved to quash the same. In support of the motion, the following affidavit was filed: A. J. Poppleton, being duly sworn, says, that for several years, last past he has been, and now is, the attorney of the Union Pacific Railroad Company, defendant in this action. That said corporation is created by, and organized under, a law of the United States; that, by a certain joint resolution of Congress, passed and approved April 10th, 1869, the stockholders of said company were authorized to establish their general office at such place as they might select at a meeting to be held in the city of Boston, April 22, 1869; that at such meeting said city of Boston was by said stockholders selected, and its general offices established in said city, where it has ever since remained. That in said city, in the state of Massachusetts, all the meetings of its board of directors are held, and its books and records kept, and that all its officers are residents of said city, except its president, who resides in the state of New York; that it has no other office or place where its legisla tive corporate power is exercised; that its managing office, where the power and authority of its managing agents, to-wit: Superintendent, auditor, cashier, general freight and ticket agents is exercised, is wielded, is in the city of Omaha and state of Nebraska, and it has no general managing office elsewhere; that the alleged service of the writ in this action was made on Sidney Dillon, president of said company, while casually traveling through the district of Iowa, he being at the same time a resident of the city and state of New York, and that defendant has and owns no railroad situated in the state of Iowa, except such portion of the iron track laid over and across its Missouri River Bridge and the approaches thereto as are East of the boundary line, between the states of Iowa and Nebraska. That said S. H. H. Clark, general superintendent, upon whom |