time to appeal is very brief, and may expire before actual notice is obtained. In the language of the court in Smith v. Rice (11 Mass. 512), "the very grievance complained of is, that the party had no notice of the pending of the cause, and of course no opportunity to appeal.” Now, if the rule in Hahn v. Kelly be correct, we have this singular result that whilst the statute must be strictly followed before jurisdiction can be acquired over the person, a party against whom a judgment is rendered is precluded from examining the proceedings by which alone it can be seen whether the statute has been followed. In other words, the court says, no jurisdiction is acquired by the court if the requirements of the statute be not pursued, but the record of the proceedings taken shall always be a closed book. ant. that the defendant should be served with process, but that his appearance to the action should be effected. Every student is familiar with the cumbrous machinery and complicated process by which the courts sought to compel the appearance of the defendHe is familiar also with the principle, that if the defendant was contumacious and refused to appear to a mere civil action, the proceedings were at an end. No judgment could be rendered. Every common law record shows upon its face that the defendant was either in custody, or was summoned or attached to answer to the action. And, however inconvenient may have been the strictness with which the principle was applied, and the extent to which it was enforced in ancient common law proceedings, the principle itself is by no means peculiar to the common law. It pervades, in fact, every code of law and every well-regulated system for the administration of justice.” If the order of the court is no part of the judgment-roll it cannot be brought before the court on appeal, unless a statement or The opinion in Hahn v. Kelly is not only singular in its referbill of exceptions be made up; and either of these proceedings ence to proceedings to outlawry for want of appearance of a supposes the presence of the parties or counsel. If any other di-party; but the citations from Blackstone, to show that the courts rect proceedings are taken they might result in vacating the judg- of chancery would proceed to judgment upon a constructive ser ment, but under the ruling in the case cited, the record being reg- vice of process at all analagous to service by publication, estabular on its face, the purchaser, if a third party, would be protected, lish nothing of the kind; and only seem to do so because they are and the wronged defendant be left to the doubtful chances of re- detached from their context in the volume. They relate to procovering the value of his property by action against the plaintiff. ceedings to compel the appearance of parties after service of the From the examination we have thus been able to give to the subpana, which is the original process in chancery, as any one case of Hahn v. Kelly, we do not find in it sufficient reasons to will see, who will read the whole page in Blackstone from which depart from the old and well established rules formerly recognized the citations are taken. in the supreme court of this state, the observance of which, as we are more and more impressed every day, is essential to the protection of the rights of all citizens, whether resident or non-resident of the state. The proceedings for constructive service by publication, which the statute authorizes, are, as stated by Mr. Justice SANDERSON in the case of Ricketson v. Richardson, "in derogation of the common law;" that is, they are not in accordance with the course of the common law. Service of the subpœna could indeed be made by leaving a copy at the actual residence of the defendant, as well as by delivering a copy to him personally. And in special cases where an absent or absconding defendant had appointed a person to act as his agent in the matter litigated, substituted service upon such agent in lieu of the principal, was, upon application to the court, sometimes alm-lowed. Adams' Equity, 324; Hobhouse v. Courtney, 12 Simons. 130. But it was not until the statute of 5th George II., c. 25, that proceedings could be taken by publication, without service in one of the modes indicated. That statute authorized proceedings by proclamation published in the London Gazette, and read in the parish church and posted in the Royal Exchange, where a defendant had absconded to avoid service. It did not apply to a citizen or subject of another government who had never been in the realm. Passing from Hahn v. Kelly, we proceed to consider the other positions taken by the defendant to defeat a recovery. It is contended by her counsel: Ist. That the cases of Gray and Eaton were suits in rem, and that the decree in the consolidated suit It was the boast of that law that it condemned no one in his person or his property without his day in court. That there must be citation before hearing, and hearing, or opportunity of being heard, before judgment, was a cardinal principle which pervaded all its judicial proceedings. And when the articles of compact contained in the ordinance of 1787, for the government of the North West Territory, declared that its inhabitants should always be entitled "to judicial proceedings according to the course of the common law," it was believed by them that they had in that guarantee the assurance of full protection to all their private rights; and that the language was not used "mainly for ornamental pur- bound the property without reference to the defective service of poses," having a certain "rotundity of sound which is pleasing to summons upon the infant. 2d. That the district court had authe ear," but leaving "no definite impression upon the understand-thority to appoint a guardian ad litem for the infant without previing."* Hahn v. Kelly, 34 Cal. 411. The common law recog- ous service upon her; and 3d. That the decree in the consol nized no such proceeding as a personal judgment without the ap- dated suit was not reversed as to the widow Matilda. pearance of the party, and probably in no other case than Hahn v. Kelly were proceedings to outlawry ever cited as a mode "amounting or equivalent to constructive service," by which a common law court obtained jurisdiction. "By the strict rules of the common law," says the Supreme Court of New Jersey in Hess v. Cole (3 Zab. 116), “it was necessary in every suit, not only *In speaking of these terms-"proceeding according to the course of the common law the court in Hahn v. Kelly uses this language: "Some words are used to express ideas, and others to ornament them. The more we turn this expression over and examine it by the light of reason, for the purpose of determining to what use it has been put, the more we are inclined to the opinion that it has been used merely from force of habit, or mainly for ornamental purposes. It has a certain rotundity of sound which is quite pleasing to the ear, but leaves no definite impression upon the understanding. It is simply equivalent to a knowing look or a solemn shake of the head, and doubtless it was first used in that sense. When first employed, its use was harmless, for there was then no mode of procedure except such as the common law prescribed, but its continued use where the modes of the common law have been superseded is mischievous." Ist. Suits in rem may be divided into four classes: 1st, those which are directed primarily against particular property, and are intended to dispose of it without reference to the title of individual claimants; 2d, those which are instituted to determine the status of particular property or persons; 3d, those which are, in form, personal suits, but which seek to subject property brought by existing lien or by attachment, or some collateral proceeding. under the control of the court, so as to give effect to the rights of the parties; and 4th, those which seek to dispose of property, of relate to some interest therein, but which touch the property or interest only through the judgment recovered. Proceedings in admiralty for the forfeiture of a vessel or goods are instances of the first kind; the suit is there brought against the vessel or goods directly, without reference to the rights of persons, and all parties are notified to appear by a designated day and assert their claims, or the property will be condemned. Proceedings in the probate court, upon the validity of a will, are instances of the second kind; the judgment, when rendered, operating directly upon the status or condition of the instrument determining its validity or invalid- manded for further proceedings, and on filing the remittitur, the ity. Proceedings by attachment against the property of debtors, question evidently arose as to what proceedings should be had, or to foreclose a mortgage, or other lien upon property, or to par- and after hearing counsel for the parties, the court ordered a new tition real estate, are instances of the third kind. Proceedings to trial on all the issues as to all the parties. Upon this order the compel the execution or cancellation of a conveyance of real case remained on the calendar of the district court for trial for property in the state, and proceedings to wind up and dispose of over a year, and was then dismissed. The order of dismissal was partnership property, are instances of the fourth kind. The third entered in the consolidated suit, and it would appear for greater and fourth classes mentioned are not strictly proceedings in rem; caution in the seperate suits also. but so far as they affect property in the state, they are treated as substantially such proceedings. The decree as to the infant Franklina being void for want of jurisdiction in the district court over her, all proceedings founded upon such decrec, so far as her rights are concerned, necessarily partake of the same infirmity. The purchaser of the premises being one of the attorneys of the plaintiff Gray, the law, as held by the supreme court, imputes to him knowledge of the defects in the proceedings which were taken under his direction and that of his partners. The conveyance of the undivided half to his law partner was made after the reversal of the decree, and the latter also took his interest with similar knowledge of the defect. Independently of this fact their title fell with the reversal of the decree. On this subject we can add nothing to what was said in the opin In proceedings in rem, notice of some kind is required, but as all property is supposed to be in the possession of its owner either in person or by agent, a seizure of property is, of itself, considered to impart notice of the proceeding to the owner. Therefore, where the property is, at the outset, taken into the custody of the court, the law is less strict in requiring further notice, either generally, by proclamation to all persons, or specially to the reputed owner. But where the property to be affected is not thus at the outset taken into custody, there is no constructive notice given by the proceeding; and the same notice, as provided by law, must be given to the defendant, as in actions where a personal judgment for dam-ion of the supreme court, except that the doctrine of Reynolds v. ages is alone sought. A proceeding," says the Supreme Court Harris was reaffirmed in the late case of Reynolds v. Hosmer of Vermont, in Woodruff v. Taylor (20 Vermont, 65), where the reported in 45 California, 617. law on subject of suits in rem is stated with great clearness," professing to determine the right of property where no notice, actual or constructive is given, whatever else it might be called, would not be entitled to be dignified with the name of a judicial proceeding. It will be a mere arbitrary edict, not to be regarded anywhere as the judgment of a court." The suits of Gray and Eaton were partly in personam, and were, at the same time, intended to subject property in the state to the disposition of the court; but as the property was not taken into custody at the outset, there was no constructive notice given to the owners or claimants by the proceeding, and the absent and nonresident defendants could only be brought before the court by publication of summons, as provided by statute, and this, as the supreme court held, was never done, so far as the infant Franklina was concerned. As to the claim for rents, we are of opinion that the cost of filling up the water lot, which was a valuable and permanent improvement, is a just offset to the rents received, or which might have been received, by the defendant. It follows, from the views we have expressed, that the plaintiff is entitled to judgment for the possession of the premises; and such judgment will be entered upon the findings filed-with costs. JUDGMENT FOR PLAINTIFF. BANKRUPT ACT DISCHARGE OF BANKRUPT IMPORTANT - On the 30th of September, RULING BY MR. JUSTICE MILLER. Mr. Justice Miller, sitting in the Federal Circuit Court at St. Louis, made a highly important ruling in re King, a bankrupt holding that section 9 of the amendment of 1874, to the bankrupt, act, in relalation to the discharge of bankrupts, applies to cases pending at 2d. As to the authority of the district court to appoint a guar- the time that act took effect, as well as to cases thereafter comdian, ad litem, for the infant, without previous service upon her, it menced. We shall publish the full opinion next week. The same is sufficient to observe that the supreme court of the state on point has been ruled in the same way by Mr. District Judge Hopappeal decided that no such authority existed. The statute re-kins of the Western District of Wisconsin in re Perkins, which we quires service of summons on all infants, before a guardian ad These two cases deny the conclushall also publish in our next. litem can be appointed, and makes no difference in this respect sion of Mr. District Judge Blatchford, in re Franke, ante, p. 448 ; between an infant of a few months and one nearly attaining his S. C., (in full) 6 Chicago Legal News, 414. majority, and the service can no more be dispensed with in the one case than in the other. Besides, there is wisdom in the provision requiring service even upon an infant in its cradle, for the papers, through its nurse or relatives, would almost be sure in such case to find their way into hands of parties who would look after the interests of the child. Be this as it may, it is the proceeding required by the legislature before the jurisdiction of the court can attach; and as Chief Justice TANEY said of a mere formal objection which was insisted upon in the supreme court, nothing is unimportant or to be disregarded which the legislature has prescribed as a condition for exercising the jurisdiction of the court. Where personal service cannot be made by reason of the nonresidence in the state or absence of the infant, service must be Such publication is the made by publication as in other cases. prescribed condition to the exercise of jurisdiction over the infant. 3d. The objection that the decree of the district court in the consolidated action was not reversed as to the widow Matilda, is not founded upon fact. There was but one decree, though court speaks, in its opinion, as though there two separate decrees before it. This is an evident inadvertance in the language of the court, arising from the fact that the objections to the validity of the decree were taken to the seperate proceedings had before their consolidation. the were The case was re The importance of these rulings will be seen when it is considered that there are a large number of cases pending in the United States Courts here, and elsewhere, in which the bankrupts have never applied for discharge, because, under the provisions of the former laws, they were unable to comply with the law's requirements, either by procuring the consent of creditors, or the payment of the required percentage of the debts proved. All these obstacles now disappear, and any bankrupt who has been adjudicated such on the petition of his creditors may be discharged, if he has never been guilty of any fraudulent acts which are a bar to the discharge. Common [Correspondence.] Carriers-Liability of Express Companies-Opinion of Judge Ballard in Bank of Kentucky v. Adams Express Company. MESSRS. EDITORS :-In a note to the opinion of Judge Ballard, published in your journal at page 436, you remarked upon the importance of the question decided, in the above case, and, after referring to the conflicting decisions, closed by suggesting that the better view was against the one there held. A mature examination of the question has convinced me that your impresIn view of the great public importance of the question, I sions are correct. propose to examine the foundations of the doctrine announced in the opinion. Brief statement of the facts in the case are as follows: The defendant, the Adams Express Company, became liable to the Bank of Kentucky, the plaintiffs, for the carriage of a package of money from New Orleans to Louisville. The package was delivered at New Orleans and a receipt given in the usual form, and containing a stipulation against liability of the company for loss by fire. While in transitu, in the usual manner, upon the usual line of railroad, in charge of the defendant's messenger, by a railroad accident, the package of money was destroyed by fire. The railroad upon which the package was carried and lost was not owned or controlled by the defendant. The bank sued for the money upon the theory that the fire occurred through the negligence of the defendant, or of some one else, whose negligence was imputed to the defendant, and claimed on the trial that the evidence showed negligence on the part of the railroad company, and that the defendant was liable to the plaintiff for a loss occasioned by such negligence. But the court instructed the jury that they should disregard the evidence on the question of the negligence of the railroad company, holding that the defendant in such a case is only responsible for the negligence of itself and its employees. To sustain his view of the case, the learned judge assumes that the express company is but an ordinary bailee for hire," is only bound to ordinary diligence of itself or its servants, and as the railroad company was not its servant, and as the railroad was not under its control, it was no way responsible for the negligence of those who controlled the railroad and its carriages. The whole opinion is based upon these propositions, and is made up of illustrations based upon them. Now, if it shall turn out that there are some peculiarities attaching to the relation of the express company here, as carrier, which do not apply to ordinary bailees for hire; for instance, suppose that it shall appear that upon principle, in cases like this, the carrier must not only himself be free from negligence producing the excepted peril, but that all who execute his contract of carriage, whether as agents, servants, employees or sub-carriers, must be equally free from negligence, then the theory must fall: and, therefore, to refute the theory, we have but to show either that this distinction exists, or that this latter liability attaches to ordinary bailees for hire. The result is the same in either case. The law has regard to names, and forms, and definitions for the protection of rights, and the preservation of principles, but they should not be used to violate the former, or to pervert the latter; and in cases like the one under consideration, the question should not be so much whether the party sought to be made liable comes within a certain technical definition or description, and whether certain incidents are usually attached to, or certain duties generally devolve upon, persons answering this definition or description, as to ascertain in the particular case whether, under the principles and rules of law applicable to the facts, the defendant has been guilty of a breach of contract or duty which entitles the plaintiff to his action. It is by no means safe, in these inquiries, to rely too implicitly upon definitions given in other cases, often given by judges in cases only partially similar, and without much attention to the question whether they are generally accurate, or accurate at all, except in the particular case in which they are used. ligence, that is, proper diligence on the part of every one who has any connection with the carrying out of the contract of transportation. For it is of the very essence of the rule of public policy, that if the loss occurs within the exception, and the exception be relied upon, it shall not prevail, if the loss was produced by the negligence of the carrier himself, or any one executing the contract for him. How is public policy affected by the question, whether the contracting party carry the goods himself, or whether he put them on another man's cars and hire him to carry them? In the former case he is liable for losses occur. ring through his own negligence; whatever his contract may be, the law holds him absolutely. Why should the rule be different should the goods be lost by the negli gence of him who is hired by the first carrier to carry the goods? The consignor has no right to claim that the carrier whom he employed shall actually carry the goods. He may carry them on his own vehicles, with his own motive power, upon his own road or the public rivers, as a railroad or river carrier. Here his liability is unquestioned. Or the carrier may, as in the pres ent case, and as is the usage of express and transportation companies, undertake the carriage and receive the whole price for the same, and hire the use of the coaches of railroads and rooms on steamboats in which the goods are kept and carried for hire by the railroads and boats, but in the charge and under the control of the messengers or the servants of the express or transportation companies, and therefore in the actual manual possession of such companies. Now this process of carriage by the car, and the motive power, and under the care of the messenger, is the carrying contracted for. It is but one carrying, and all the instrumentalities used are but the means for the production of the one result, the carriage of the goods. Who is the carrier here? It is not denied the express company is. Whose instrumentalities are these? --the coach, the messenger, the motive power? I answer, the express company's. It employs them, pays for them, and they are the only appropriate instrumentalities by which its contract can be carried out, and without which it could not be fulfilled, and it may be appropriately said here," qui facit per alium, facit per se." Now does not public policy, as well as natural justice and common sense, demand that before the carrier here can defend under its exemption, it must show an absence of negligence in the use of all these instrumentalities necessary for the fulfillment of the contract? The contract and all the appliances for its fulfillment are alike, in legal effect, the contract and appliances of the express company, as much as if it had owned the locomotive, coaches and other machinery, together with the road and all its equipments. DeMotte v. Saraway, 14 Wendell, 225. What matters it to the owner of the goods whether the carrier owns the road or cars, or hires them? What injury is it to the carrier that it is to be held liable for the negligence of men whom it does not control? If they are not its servants, still it contracts with them for the use of their vehicles and motive power to transport its goods, and they are liable to it for negligence in their use in its service. If then, as I insist, the negligence of the railway company, in such a case, is the negligence of the express company, the liability of the latter to the owner Hence, in this inquiry, I shall pay little attention to the question whether of the goods carries with it a corresponding liability from the railroad comthe defendant is indeed an "ordinary bailee for hire," or not. I will now endeavor to consider the question as it strikes me, and by showing that my view is right, and thereby demonstrate that the reasoning of the learned judge is unsound. The elementary principle underlying the duties and responsibilities of common carriers, is their absolute liability for all losses unless caused by act of God or pubiic enemies. (It is admitted here that the defendant is a commón carrier.) Now the courts have held that this stringent common law liability may be limited by special contract between the carriers and the owners or consignors of goods. But as this very strict liability was established in a great part to protect the public against the negligence of carriers and their employees, the law only permits this limitation with a qualification, viz: These carriers shall be permitted to limit their liability by contract, but they shall be required, in good faith and without negligence, to carry out their contracts of carriage, and if such carriers stipulate against loss by a certain peril, and the goods be lost by this peril, still, if the peril, or the loss by the peril, was produced by the carrier's negligence, then, notwithstanding the exemption, he shall pay for the goods; because it is against public policy to permit a party by contract to exempt himself from liability for loss by negligence; and in such a case the burden of proof is on the carrier to show not only a loss within the terms of the exception, but also that the proper care and skill were exercised to prevent it. Graham v. Davis, 4 Ohio St. R. 363. Now, concerning what does this principle of public policy require the absence of negligence, and the exercise of diligence and skill? I answer, concerning the custody and carriage of the goods. Upon whom, and concerning the acts of whom, does this rule against negligence operate? I answer, emphatically, upon the contracting carrier who is claiming exemption under his contract for exemption from loss by the excepted peril; and the rule requires freedom from neg pany to the express company. I concede that this proposition simply illustrates the reasonableness of the rule I maintain, and I am aware that it is said the owner of the goods may pass by the party with whom he contracted and sue the party guilty of the negligence. This may be true, but it does not change the question. For the owner of the goods selects his carrier and makes his contract; he has a right to sue on that, and has no right to be turned over to a stranger for indemnity, one perhaps irresponible, and at all events one with whom he did not voluntarily deal; while if the express company be liable the shipper has only to look to the man or company whom he selected, and with whom he contracted. Judge Ballard, in all his arguments and illustrations, lays great stress upon the proposition, that the defendant is not to be held liable for negligence of parties over whom it has no control; and as a reason why it should not be so held, he insists that the liability relied on for a recovery is not the liability of the express company as a common carrier, but is only the liability for negli gence. But I submit, with great deference, that this position is bare assumption. It may be true that great judges have given sanction to it, but it is utterly without foundation in principle or reason. A common carrier with his liability qualified is none the less a common carrier, except only as his liability is qualified. His liability for negligence was always one of the incidents of the relation, and although carriers were regarded as insurers, and you might charge them in assumpsit and assign non-delivery as a breach, and they could only plead "act of God" or "the King's Enemies," still you had your election to sue the carrier in case for so negligently dealing with the goods, while in his possession for carriage, that they were lost. This common law liability has never been altered, cannot be qualified, and is the gist of the action in the case under consideration, and you may call the defendant as many names as you choose here, but still it is a common carrier, liable to account for loss or damage to the goods arising from negligence in carrying the same, or while in its possession for carriage. That this carrier employs instrumentalities to execute its contract which it cannot control, is no ground of complaint on the part of the shipper, or of exemption on the part of the carrier. The goods being in its possession from their delivery, whoever deals with them does so with its assent, the same being implied, the acts of those dealing with them while thus in its posession, are its acts. The shipper contracts for freedom from negligence in the handling and transportation of his goods. Whether the carrier chooses to accomplish that by relying simply upon the common carrier's liability of his subcarrier or co-carrier, or whether he have a special contract, are matters wholly indifferent to the shipper, if he receive what he contracts for. This is all he can ask for. Nor does this rule impose any hardship to the express company, as it has its remedy over upon its sub-carrier or co-carrier. It strikes me that this view is far more in consonance with the analogies of the law, and far more consistent with the mutual rights, duties and liabilities, both of carriers and shippers, than the one announced in the opinion under review. In the one case the shipper has his remedy against his carrier for loss of his goods through negligence for their carriage, whether the carrier carry them himself, on his own cars, or on another carrier's; or whether he superintend the carriage himself, or commit it wholly to others. And if the carrier carry the goods upon trains controlled by others, and loose the goods by their negligence, he has his remedy over. While in the other case, if the carriage be contracted for by a carrier who carries his goods on the vehicles of others, and the carrier who furnishes the vehicles and the motive power destroys the goods by his carelessness, the owner has no remedy on his contract, nor any at all against the carrier with whom he chooses to deal. But if he has any remedy, it is an action against the actually negligent party, who may be. and generally is, hundreds of miles away from the place of contract. It seems to me, therefore, that to overturn the former and establish the latter rule, with the results stated, require a more substantial reasons than the one assigned, to-wit: That the carrier who limits his liability by contract, is only a common bailee for hire, and is therefore only liable for the negligence of its own servants, and when such a carrier, under such a contract, carries his goods on the vehicles of another carrier, over whose emyloyees he has no control, he is not liable for their negligence. For convenience of reference I cite the authorities which sustain my view, including those in the former note. Hooper v. Wells, 27 Cal. 11; Chisterer v. Am. Ex. Co., 15 Minn. 270; Redfield on Carriers, sec. 56, 14 Wendell, supra; 4 Ohio St. R., supra; 5 Am. L. R. N. S. 16 (Judge Redfield). Against these authorities upon the precise point, Judge Ballard's opinion stands alone, so far as I know. [Correspondence.] [From our own Corresondent.] Judge Shaw. BOSTON, September, 1874. EDITORS CENTRAL LAW JOURNAL :-Lemuel Shaw was appointed Chief Justice of the Supreme Judicial Court of Massachusetts, and took his seat on the bench at the September term of the court at Lenox, for Berkshire, in 1830. He had tried and argued many cases with and against Prescott, and Sullivan, Webster and Hubbard, Gorham and Cooke, Fletcher and Rand, Blake and Samuel D. Parker, Leland and Fuller, and Townsend and Kilborn Whitman, the great lawyers of that time, and he had generally prevailed. And it is really instructive to look into the reports and see how he prevailed. It was never by cheat or any dextrous artifice or vicious practice, nor yet by what passes for eloquence or oratory, but simply through the clearness of his understanding and his ability to interpret and make others understand the case as he undersood it. It is sometimes said, men want words to express their thoughts. My belief is, the difficulty is not often in the want of words, but in the want of understanding. A child that understands will somehow make you understand. At the time of his appointment, Judge Shaw was associated as a partner with Sidney Bartlett, Esq., already then distinguished in his profession, and now, as is well known, one of the most eminent among the lawyers of the United States. The firm in 1830, had a large and lucrative practice. Before proceeding in the discharge of the other appropriate duties of the court, Judge Shaw made a most excellent address to the bar, in which he sketched the life and character of his predecessor, Judge Parker. The address is printed in the appendix to the 9th Volume of Pickering's Reports. He gave no written opin¡on at that term. Many of the opinions at that time were only " Per Curiam." His first written opinion was in the case of Bull v. Loveland, 11th Pick. 12, in which the general question was, whether a witness, against his own consent, can be called to testify to any fact pertinent to the issue between other parties, where such testimony may tend to charge him with a debt or subject him to pecuniary loss or liability, but where it does not tend to expose him to punishment or subject him to any penalty or forfeiture. And it was held that the witness might properly be called and examined in such a case,-a question of little or no interest now, when, in this commonwealth, and I believe in most of the states, the cases in which persons may be witnesses and those in which they cannot be compelled to testify, are clearly defined by statute. At the trial of Joseph J. Knapp, Jr., at Salem, in November, 1830, Judge Shaw did not sit. John Francis Knapp had been tried, as principal, in the same murder, a few months previously, before Putnam, Wilde and Morton, and it was probably deemed best by Judge Shaw, just then appointed, that he should leave to them to try the accessories also. Mr. Webster was employed by the law Judge Ballard's Opinion (ante, p. 436) in the Ex-officers to aid them in the trials. John Francis Knapp had requested to have press Company Case, September 21, 1874. EDITORS CENTRAL LAW JOURNAL.-Judge Ballard in his opinion in The Bank of Kentucky v. Adams Express Co., published in the CENTRAL LAW JAURNAL, of the 3d inst., in a criticism upon the case of Hooper v. Wells, Fargo & Co., cites the following passage from the opinion of the court (27 Cal. p. 30): "Defendants had the means of holding the proprietors of those various vehicles, used in the business of expressmen responsible to them, had they chosen to do so. If they did not take proper means to secure themselves, it was their own fault." Upon which he makes the following observations: But I cannot see how any argument can be drawn from this to show that defendants were responsible. Every bailee or depository may hold any one responsible for destroying or injurings good in his possession, but it cannot be maintained that he is responsible for such destruction or injury, unless he by his negligence contribute to the same. Besides the plaintiff had his remedy against the proprietors of those other conveyances which occasioned the loss, (see the N. Y. Steam Navigation Co. v. Merchants Bank, 6 How. 882) and it might be retyrted, ' that if he did not take the proper means to secure himself it was his own fault.'"' " The learned judge does not seem to be aware, or at least does not refer to the fact, that the passage cited by him, and another similar passage at the bottom of page 34, have reference to the act of Congress, "to limit the liability of ship-owners, and for other purposes (9 Stat. at L. 635, Sec. 2). Under this act the plaintiff had no remedy against the owners of the exploded steamer, for he did not laid his gold upon the steamer, and the retort of the learned judge does not quite meet the case. The argument drawn from the act may not be entitled to much weight, but it certainly does not weaken the position. However this may be, it would seem that the learned judge misconceived the allusion to the statute, which it must be confessed is not so pointed as it might have been. Doubtless, the court took it for granted, that a statute so important would be generally known, LEX. Robert Rantoul, Jr., then recently admitted an attorney of the court of common pleas, but not of the supreme court, assigned as one of his counsel, but the court refused the request, and William H. Gardner and Franklin Dexter were appointed. One cannot but wish that Judge Shaw had sat in these trials. The truth is, that with Judge Putnam, the defendants' counsel were overshadowed by Mr. Webster. He was in the zenith. They were-not, indeed, at the nadir, but yet not far enough up from the edge of the horizon to pour the glow on to Judge Putnam. One cannot but see, that on the question of the admission of the testimony of Coleman--that pious man who visited the prisoners in their cells, and told them how sorry he was to see them there, and that he would die before he would reveal what they might tell him, and so induced them to confess, and then told the court and jury, that, being a clergyman, he supposed he could not be required to disclose what was said to him, and who, when he found he had not testified to enough to make his testimony competent in the judgment of Judge Wilde and Judge Morton, for want of which the prisoners must be acquitted, and who also, after an adjournment, on coming into court the next morning, recollected and testified to just enough more to overcome the objections of these two judges, and so make his testimony competent--one cannot but see, I say, that in the argument on the admissibility of the testimony of this man, Mr. Dexter was right. I have said, when it was known that Judge Shaw had given an opinion upon any question, discussion of that question stopped. One of the most notable instances of this, was the case of Sims. The last fugitive slave act was passed in September, 1850. Sims was held to service by James Potter, at or near Savannah in the state of Georgia, from whence he escaped to Massachusetts. Potter executed a power of attorney to one Bacon, to claim Sims and procure him to be delivered up. In March, 1851, Bacon came to Boston, with this power. No such fugitive had yet been delivered up in Massachusetts, on claim of the owner. An attempt had been made in the case of Crafts, in October, 1850, but Crafts had eluded the Marshal's deputies, and was now safe, and withal a hero in London. Shadrack, the property of Purser De Buee, had been apprehended, and had got away from the deputy Marshal, at lunch time. The deputy, as he said, pointed his finger, and said-"shoot him!" but nobody had the tools, and Shadrack ran like a quarter-horse," the crowd cheering as he went; nor let any thing green grow under his feet until he reached Canada. The deputy died without seeing Shadrack any more. Thus these two attempts ended. Sims was the object of the third. Miles v. Miles: A husband's ground for divorce can only be such as stated in the acts of 1854 and 1855. The court should, before granting the husband's divorce under the act of 1855, consider the question of the amount of alimony to be granted to the wife. Mishler v. Reed: Bona fide purchasers of negotiable paper for value cannot be affected by private understandings between third parties. [We should think so. But isn't this too much brevity?] Brubaker's Adm'rs. v. Taylor: When the plaintiff is called as a witness ty the defendant under the act of April 15th, 1869, the defendant has a right to examine her as if under cross examination. In Sleek v. Turner, the court (Sharswood. J.) hold, following Wilson v City Bank, (ante, p. 40) that a judgment dated more than four months prior to the adjudication of bankruptcy, but entered, and execution issued thereot within that time, is not ipso facto fraudulent. Smith v. Johnson, holds that a fence that is not on the line, but has been put entirely on the property of the adjoining owner by him is under his complete control. In Culbertson's Appeal the widow guardian of the minor children, and th administrator of the decedent, entered into an agreement by which certa money in the administrator's hands was to be held until the death of the widow, she receiving the interest, and then the principal to go to the children. Held, that when the children were all of age, they, in conjunction with the widow, could compel the administrator to pay over the principal. Head-note to Seeds v. Kahler: A wife may purchase property on the credit of her separate estate, and hold it against the creditors of her husband. Head-note to Fry's Appeal: Where the funds arising from a sheriff's sar are insufficient to pay liens prior to judgment, it is error to apply any of the fund in payment of the costs on such judgment arising prior to the issuing of the fi. fa. In behalf of Potter, the owner, Bacon made a complaint to George T. Curtis, Esq., a Commissioner of the Circuit Court of the United States, for this district; upon which complaint Mr. Curtis issued a warrant, directed to the Marshal or either of his deputies, commanding him or them, in the name of the President of the United States, forthwith to apprehend Sims, and bring him before the said commissioner, at the court house in Boston, to answer to the complaint, and then and there to be dealt with according to law. The warrant was put in the hands of one Byrnes, a deputy Marshal. Francis Tukey was Marshal of the city of Boston. He was the most effi cient police officer that Boston ever had. He undertook to make the arrest; and before the next morning Sims was found, thrust into a carriage, and hurried off to the court house. The trial went on before Mr. Commissioner Curtis. There was great excitement all about the city. Business was suspended. The streets leading to the court house were crowded. There were more pistols in the court room than Mr. Moulton had in that eventful night in Mr. Beecher's chamber. Meanwhile Mr. Samuel E. Sewall presented to Judge Shaw a petition for a writ of habeas corpus, and spoke briefly in favor of the writ. But the court refused to grant the writ, on the ground that no sufficient cause for granting it was shown in the petition. A few days afterwards Mr. Rantoul and Mr. R. H. Dana, Jr., presented another similar petition; and Mr. Rantoul argued : I, The commissioner is required to find the fact that service is due to the claimant, which is to exercise a judicial power; whereas, the commissioner is not a judge within the meaning of the Constitution of the United States, and since his decision of that fact is made conclusive, the act is unconstitutional and void. 2. That congress had no power to legislate at all upon the subject. Judge Shaw gave the opinion of the court, at the conclusion of the argument, deciding : 1. Before a writ of habeas corpus will be issued, sufficient probable cause must be shown; and that in this case no such cause was shown. 2. He proceeded to consider the circumstances under which the constitution was made, and the great social and political objects and purposes which the people of the United States had in adopting it, and the relations which the several states held to each other, and he arrives at the conclusion that it was intended to guaranty to the owner of a Also an opinion of the Supreme Court of Illinois, by Walker, C. J., in M: slave, living within the territory of a state in which slavery is permitted, the v. People, holding that a levy in excess of the per cent, allowed by the const rights conferred upon such owner by the law of such state. 3. That the purtution is void only for the excess, when the amount authorized can be separpose of the act was to regulate and give effect- to the right secured by the conated from the portion that is illegal; that the section of the law of 1872 requ”stitution. It contemplated a prompt and summary proceeding. It secured to ing the proper authorites of towns, etc., to certify to the county clerk, on of the claimant the aid and assistance of certain magistrates and officers, so as to before the second Tuesday of August, the several amounts which they require enable the owner to exercise this right in a more regular and orderly manner, to be raised for taxation, is not directory, but peremptory; that this law doe and without being chargeable with a breach of the peace; and that Congress not apply to the auditor's certificate; that the equalization in this case was unhad a right to vest the power of inquiry--whether regarded as judicial or just and unconstitutional. What the learned chiet justice says upon the pr otherwise-in magistrates such as these commissioners. The whole court con- ciples governing equalization, will repay careful udy, and should the cour curred. Afterwards, Judge Shaw supplemented this opinion with a Note" apply these principles to future tax cases, as we have n .ill, the peo -7 Cush. 285. Sims was sent back to Savannah. There was no further dis-ple will soon see that it is for their interest to elect f men to levy and collect their taxes, and the manner of executing ou .evenue law will soon be reformed. cussion as to what the law was. The next most notable such instance was Fisher v. McGirr, in which the liquor law of 1852 was declared to be unconstitutional. PELHAM. Summary of our Exchanges. The Pacific Law Reporter, for September 22, publishes an opinion of Mr. Circuit Judge Sawyer, expounding the Pacific Railroad Land Grant, and passing upon several questions relating to Mexican grants. It also publishes Thompson v. Fland, Supreme Court of California. This is an opinion on a motion for a rehearing. It has no syllabus, but is headed 'Assignee-Note--Conversion-Collateral Security." In People v. Perdue, the Supreme cour of California refused to hear an application for bail by a prisoner who had appealed from a judgment sentencing him to the penitentiary for manslaughter, because the district judge had not exercised his legal discretion in the matter. The Legal Intelligencer, for September 25, contains several decisions of the Supreme Court of Pennsylvania, with very brief head-notes. These are as follows: Wilmoth v. Thomas & Canfield: The payment of taxes is a questinn of fact for the jury. The plaintiff cannot recover without actual possession. McCrone v. Humrick: A., who took the deed for certain property, which was actually paid for by B., and afterwards conveyed it to B. in fulfillment of the trust, has no right of action against C., who purchased the property at sheriff sale as B.'s property, before the deed to B. had been made, and while the legal title was in A. The Chicago Legal News, for September 26, publish stue opinion of the United States District Court for the Eastern District of Michigan, Longyeat J., in the case of the tug Champion, holding that person who furnished sup plies in a foreign port, to a vessel owned and regifered in Detroit, had a len upon such vessel which could be enforced in said court, but that upon the assignment of such claim the lien became divested, and neither the ongirai claimant nor the assignee could sustain a libel against the vessel to enforce the payment of the claim. Also an opinion in the same court by Scott, J., in Korf v. Lill, holding, 10 mechanic's lien case, that the certificate of the architect is conclusive of the rights of the parties, unless impeached for fraud or mistake; that it would in pose a great hardship upon a contractor to make him liable for damages account of defective work done by a sub-contract after the sub-contractor had been fully paid under the direction of the architect, who was the agent of the owner; that in the absence of any agreement for notice of the decision of the architect, the parties will be deemed to have waived it. Also an opinion of the Third District Court of Utah, by McKean, C. J.. * ax pante Sanders, refusing to admit an alien to citizenship who denied the consttutionality of the law against polygamy. The Albany Law Journal, for September 26, contains a report of the case of Matthews v. Massachussetts National Bank (ante, p. 469). It is proper to state that this opinion is much longer and more elaboj, te tha as published by us, and contains citations of many auta we gave it, was furnished us by a correspondent in P And after the issue of our journal containing it had been printed, we received in phamphlet form the more elaborate opinion which the Albany Law Journal now publishes Whether the opinion, as given by us, is an adjudgment, or whether as given by the Albany Law Journal it is a second edition of the original opinion, we are as yet unable to say. [Want of space obliges us to omit until next week, a notice of our other exchanges received this week.] |