a files in the Circuit Court a "petition of appeal,' petition setting forth the application for the benefit of the bankrupt act, the opposition, and the discharge, and praying the Circuit Court for a reversal of the orders of discharge of the District Court-such "petition of appeal" must be regarded as being a petition for review under the first clause of the second section of the bankrupt act, which gives the Circuit Courts a general superintendence and jurisdiction of all cases and questions arising under the act; and on an affirmance by the Circuit Court of the decree of discharge by the District Court, no appeal lies to this court, though the debt of the opposing creditor discharged be more than $2,000. Coit v. Robinson. CONFEDERATE NOTES. 1. Contracts, when payable in.-Notes issued by the confederate government having become the currency in which contracts were made and business conducted in the insurrectionary States, during the recent civil war, and such notes having been designated by general custom as notes for so many "dollars," parol evidence is admissible, where suit is brought * **to enforce a contract payable in “dollars," and made during the war, to prove the above condition of things being first shown that the term "dollars" as used in the contract meant, in fact, confederate notes. In the absence of such evidence the presumption of law would be that by the term "dollars," the lawful currency of the United States was intended. Thorrington v. Smith, 8 Wall. 1, explained. Atlantic, etc., R. R. Co. v. National Bank. 2. Legislative enactment.-The ordinance of North Carolina of 1865 declared that all existing contracts solvable in money, whether under seal or not, made after the depreciation of confederate currency, before the 1st day of May, 1865, and then unfulfilled (except official bonds, and penal bonds payable to the State), should "be deemed to have been made with the understanding that they were solvable in money of the value of the said currency;" but at the same time provided that it should be "competent for either of the parties to show, by parol or other relevant testimony, what the understanding was in regard to the kind of currency in which the same were solvable," and that in such case "the true understanding" should regulate the value of the contract. Held, that the understanding of the parties might be shown from the nature of the transaction, and the attendant circumstances, as satisfactorily as from the language used; and particularly that it might be shown from the length of time during which the contracts had to run before maturing; and that accordingly when bonds of a railroad company were issued in May, 1862, payable at dates varying from seven to thirteen years afterward, the inference was justified that the company intended at the time of issuing them, that the bonds should be paid in lawful money instead of confederate notes. Ib. 3. Interest on bonds.-The interest payable on a boud, issued as above mentioned, follows the character of the principal, and is payable in like currency. Ib. CONTEMPT OF COURT. 1. Power of courts. The act of congress of March 2d, 1831, entitled "An act declaratory of the law concerning contempts of court," limits the power of the Circuit and District Courts of the United States to three classes of cases; 1st, where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; 2d, where there has been misbehavior of any officer of the courts in his official transactions; and 3d, where there has been disobedience or resistance by any officer, party, juror, witness, or other person, to any lawful writ, process, order, rule, decree or cor/mand of the courts. The seventeenth section of the Judiciary Act of 1789, in prescribing fine or imprisonment as the punishment which may be inflicted by the courts of the United States for contempts, operates as a limitation upon the manner in which their power in this respect may be exercised, and is a negation of all other modes of punishment. Ex parte Robinson. 2. Disbarment of attorney. The power to disbar an attorney can only be exercised where there has been such conduct on the part of the party complained of as shows him to be unfit to be a member of the profession; and before judgment disbarring him can be rendered he should have notice of the grounds of complaint against him, and ample opportunity of explanation and defense. Mandamus is the appropriate remedy to restore an attorney disbarred, where the court below has exceeded its jurisdiction in the matter. Ib. CRIMINAL LAW. Assault upon high seas.-Under the act of March 3d, 1825, section 22, by which an assault on a person upon the high seas with a dangerous weapon is made an offense against the United States, and the trial of the offense is to be "in the district where the offender is apprehended, or into which he may first be brought," a person is triable in the Southern District of New York who, on a vessel owned by citizens of the United States, has committed on the high seas the offense specified; has been then put in irons for safe-keeping; has, on the arrival of the vessel at anchorage at the lower quarantine in the Eastern District of New York, been delivered to officers of the State of New York, in order that he may be forthcoming, etc.; and has been by them carried into the Southern District and there delivered to the marshal of the United States for that district, to whom a warrant to apprehend and bring him to justice was first issued. United States v. Arwo. LIFE INSURANCE. 1. Construction of policy.- Where two persons were driving sulkies in competition alongside of each other at a horse-race for money-which sort of race was made illegal by statute-and on a collision ensuing, one jumped to the ground from his sulky, and was clear from his sulky, harness and reins, on his feet, and uninjured, and instantly spoke to his horse to stop, and then started forward to get hold of the reins, which were hanging across the axletree; and when ahold of, or attempting to get hold of them, was killed by getting tangled in them, falling down and being dragged against a stone. Held, on a suit upon a policy of insurance on the life of the person killed, which made it a condition of paying the sum assured that the contract should not extend to a case of death caused by "duelling, fighting or other breach of the law on the part of the assured, or by his willfully exposing himself to any unnecessary danger or peril" - that this death was within the condition; and that the leap from the sulky and securing the reins, and the subsequent fall and injury, were so close and immediate in their relation to the racing, and all so manifestly part of one continuous transaction, that it could not be said that there was a new and controlling influence to which the disaster should be attributed. Insurance Co. v. Seaver. 2. Charge to jury. On a suit for the insurance money on such a policy as the one above mentioned, and where the language of the condition was the matter referred to by the court, it was error to tell the jury that they were to consider “how ordinary people in the part of the country where the insured reside, in view of the state of things then existing - the frequency of such races, and the way in which such matches are usually regulated - would naturally understand such language, whether as precluding such driving or not." Ib. MARINE INSURANCE. Total loss. (1.) The cases in reference to the line of distinction between a total and a partial marine loss examined, and the principle announced that it is not necessary to a total loss that there should be an absolute extinction or destruction of the thing insured, so that nothing of it can be delivered at the point of destination. (2.) A destruction in specie, so that while some of its component elements or parts may remain, while the thing which was insured, in the character or description by which it was insured is destroyed, is a total loss. (3.) Hence, where machinery was insured, to wit, the parts of a sugar-packing machine, and no part of the same was delivered in a condition capable of use, it is a total loss, though more than half the pieces in number and value may be delivered, and would have some value as old iron. Insurance Co. v. Fogarty. MORTGAGE. Crops. Although an instrument which purports to mortgage a crop the seed of which has not yet been sown, cannot at the time operate as a mortgage of the crop, yet when the seed of the crop intended to be mortgaged has been sown and the crop grows, a lien attaches. Accordingly, where a lease of a cotton plantation, made in January, 1867, in order to secure the rent, mortgaged the crop of that year, held, that although the seed of that crop had not yet been sown, a purchaser of the land at sheriff's sale could charge as trustee of it for him, a person to whom the tenant had transferred the crop, after it had grown and was gathered, such purchaser having taken with notice of the landlord's mortgage. Butt v. Ellett. OFFICE. Power of legislature: college professor.- Where in a university of learning, belonging to the State, and which the State was in the habit of governing through curators appointed by itself (such as the University of Missouri), a person was appointed by the curators a professor and librarian, for six years from the date of his appointment, “subject to law," held, that the legislature could vacate his office, appoint new curators, and without fault on the part of the professor assigned, order a new election of a professor to the same professorship, and of a librarian, before the expiration of the six years. Head v. University. POWER OF ATTORNEY. Sale of real property.- A power of attorney to sell and convey real property, given by a husband and wife, in general terms, without any provision against a sale of the interest of either separately, or other circumstance restraining the authority of the attorney in that respect, authorizes a conveyance by the attorney of the interest of the husband by a deed executed in his name alone. Holladay v. Daily. PUBLIC LANDS. Cutting timber: Indians.-(1.) Timber standing on lands occupied by the Indians cannot be cut by them for the purpose of sale alone; though when it is in their possession, having been cut for the course of improving the land - that is to say, better adapting it to convenient occupation — in other words, when the timber has been cut incidentally to the improvement, and not cut for the purpose of getting and selling it - there is no restriction on the sale of it. (2.) The Indians having only a right of occupancy in the lands, the presumption is against their authority to cut and sell the timber. Every purchaser from them is charged with notice of this presumption. To maintain his title it is incumbent on him to show that the timber was rightfully severed from the land. (3.) The United States may maintain an action for unlawfully cutting and carrying away timber from the public lands. United States v. Cook. RAILROAD AID FROM TOWNS. 1. Constitutionality of statute.-There is nothing in the constitution of Michigan (established A. D. 1850, and which ordains among other things that— "No person shall be deprived of property without due process of law. The credit of the State shall not be granted in aid of any person, association, or corporation. The State shall not be a party to or interested in any work of internal improvement") which makes void the act of the legislature of that State, passed March 22, 1869, and by which it was enacted - "That it shall be lawful for any township or city to pledge its aid to any railroad company now chartered, organized, or that may hereafter be organized under or by virtue of the laws of the State of Michigan, in the construction of its road, by loan or donation, with or without conditions, for such sum or sums, not exceeding ten per centum of the assessed valuation then last made of the real and personal property in such township or city, as a majority of the electors of such township or city voting shall, at a meeting or meetings to be called for that purpose, determine." Township of Pine Grove v. Talcott. 2. Decision of State courts.-The decisions of the highest court of the State to the contrary will not be respected by this court when such decisions are not satisfactory to the minds of the judges here, and when the matter in issue is bonds issued in negotiable form by a township of that State, and paid in the hands of a citizen of another State or a foreigner, bona fide aud for value paid. Ib. 3. Negotiable bonds.- Questions relating to bouds issued in a negotiable form, under such an act, involve questions relating to commercial securities; and whether under the constitution of the State such securities are valid or void, belongs to the domain of general jurisprudence. County of Otoe v. Railroad Company, 16 Wall. 667, and Alcott v. Supervisors, id. 678, affirmed. Ib. REMOVAL OF CAUSE. When cause may be removed.-The act of congress of March 2, 1867, under which a removal may be had of causes from a State to a federal court, only authorizes a removal where an application is made before final judgment in the court of original jurisdiction where the suit is brought. It does not authorize a removal after an appeal has been taken from such judgment of the court of original jurisdiction to the Supreme Court of the State. Stevenson v. Williams. REGULATION OF COMMERCE. 1. Act of congress of June 15, 1866.-The act of congress of June 15, 1866, authorizing every railroad com pany in the United States, whose road was operated by steam, and its successors and assigns, to carry upon and over its road, boats, bridges, and ferries all passengers, troops, government supplies, mails, freight, and property, on their way from one State to another State, and to receive compensation therefor, and to connect with roads of other States so far as to form continuous lines for the transportation of the same to their place of destination; and the act of July 25, 1866, authorizing the construction of certain bridges over the Mississippi river, and among others a bridge connecting Dubuque with Dunleith, in the State of Illinois, aud providing that the bridges, when constructed, should be free for the crossing of all trains of railroads terminating on either side of the river, for reasonable compensation, were designed to remove trammels upon transportation between different States, interposed by State enactments or by existing laws of congress, and were not intended to interfere with private contracts and annul such as had been made on the basis of existing legislation and existing means of interstate communication. Railroad Co. v. Richmond. 2. Powers of congress. The power to regulate commerce among the several States was vested in congress in order to secure equality and freedom in commercial intercourse against discriminating State legislation; it was not intended that the power should be exercised so as to interfere with private contracts not designed at the time they were made to create impediments to such intercourse. Ib. 3. Contracts. Accordingly, a contract between a railroad company and an elevator company, that the latter company, in consideration of erecting and using for that purpose an elevator, should have for a prescribed term the handling, at a stipulated price, of all grain brought by the railroad company in its cars to the city of Dubuque, on the Mississippi river, to be transmitted to a place beyond, did not cease to be valid and binding upon the parties because afterward, by the construction of a railroad bridge across the Mississippi at Dubuque it became unnecessary for the railroad company or its lessee, and a useless expense to it, to have the grain brought by it to Dubuque handled at that place. The enforcement of the contract after the construction of the bridge was not an interference with the power of congress to regulate commerce between the States. SURETYSHIP. Bond.- Sureties on a bond for the transportation of tobacco from one district to another, in the condition of which, the number of boxes and pounds of tobacco are given, and the kind of tobacco described, are responsible for the delivery, at the proper place, of the tobacco, and not the boxes in which it was supposed to be, but never was. The fraud of the principal in filling the boxes with other substances than tobacco before they left his warehouse does not release the sureties from this obligation. Nor does the carelessness of the inspecting officer, though it made the fraud of the principal in the bond easier of accomplishment, release the sureties on his transportation bond. Ryan v. United States. TAXATION OF VESSELS. Powers of State.- A State cannot, in order to defray the expenses of her quarantine regulations, impose a tonnage tax on vessels owned in foreign ports, and entering her harbors in pursuit of commerce. Peete v. Morgan. CARRIAGE OF GOODS IN SHIPS. British shipowners are the carriers of the world, and there is nothing wonderful in litigation arising out of a certain percentage of the contracts made between them and the merchants. But a contribution of six cases to one number of our Reports, besides one case as to liability for ship supplies, must be regarded as rather extravagant, and the lawyers ought not to be insensible to the benefits conferred on them by the great shipping community. In the Court of Queen's Bench there are three cases, two of which - Taylor v. The Liverpool and Great Western Steam Company, 43 Law J. Rep. (N. S.) Q. B. 205, and Ashcroft v. The Crow Orchard Colliery Company, 43 id. 194- may be noticed. In the first of these cases diamonds had been shipped under a bill of lading containing the exceptions, "thieves, barratry of master and mariners." The diamonds were stolen on board the ship, either on the voyage, or in port before delivery; but there was no evidence whether they were stolen by a passenger, one of the crew, or some person from the shore. The court held that the word "thieves" meant thieves from outside the ship, and not members of the crew or passengers. The court declined to decide whether barratry of master or mariners would comprehend theft, because the theft might have been committed by a passenger. There was a further exception to the liability of the shipowner as regarded 'damage to goods capable of being covered by insurance," upon which the court held that damage by one of the perils insured against was alone intended. In the second case, Ashcroft v. The Crow Orchard Colliery Company, a cargo of coal was to be carried under a charter-party, "to be loaded with the usual dispatch of the port, or if longer detained to be paid 40s. per day demurrage." There was also a memorandum that the vessel was to load in the B. or W. docks, by a regulation of which coal agents were not to have more than three vessels loading and to load at the same time. The defendants, the shippers, had at the time three vessels in loading, and ten charters having priority over that of the plaintiff, the shipowner. The fact was unknown to the plaintiff. The action was brought to recover thirty days' demurrage. The cases of Kearon v. Pearson, 31 Law J. Rep. (N. S.) Exch. 1, and Tapscott v. Balfour, 42 id. C. P. 16, were confidently relied on by the defendants. But the court held that the defendants were liable to pay for demurrage from the time when the vessel was at the port, and was there placed at the disposal of the charterer in a condition to receive her cargo, the engagement to load with the usual dispatch being absolute. This decision may usefully be compared with that in Tapscott v. Balfour, because at first sight it runs counter to the case in the Common Pleas. There it was held that the lay days did not commence till the vessel got into the Wellington dock, and that the loss by her being kept outside the dock, and so away from the place of loading, by the dock regulations fell on the shipowner. The cases, therefore, are plainly distinguishable; for in the principal case the delay was not really the result of the dock regulations, but of the conduct of the charterer. Under the head of the Common Pleas there are the cross-actions of Richardson v. Slanton-Stanton v. Richardson, 43 Law J. Rep. (N. S.) C. P. 230, in which the Court of Exchequer Chamber affirmed the judgment of the court below. There the charterer of the ship Isle of Wight was entitled to ship wet sugar, and had ready a cargo of wet sugar of reasonable quantity. When it had been shipped it was found that the vessel was in danger, because her pumps were unable to cope with the liquid which drained off the cargo. The cargo was discharged, and after eight months' delay the ship was rendered fit to carry the cargo. Part of the cargo was also damaged. The shipowner sued the charterer for not loading or reloading a fit cargo, and the charterer sued the shipowner for not providing a proper ship. The court gave judgment in both actions for the charterer. It should be observed that the charterparty did not contain the usual stipulation that "the ship should be tight, staunch, and strong, and every way fitted for the voyage at the time of loading the cargo." But the court intimated that this stipulation only expresses what the law would imply in its absence. The case of Petrocohino v. Bott, 43 Law J. Rep. (N. S.) C. P. 214, turned on the discharge of cargo from steamers in the port of London, where the course of a business is to unload the cargo at a quay in a dock, and for the dock company to put it into lighters for delivery to the consignees. The whole cargo was discharged on the quay, but one bale was subsequently lost. The words in the bill of lading were, "to be delivered in the like good order and condition from the ship's deck, where the responsibility shall cease." The decision of the court was in favor of the shipowner.-Law Journal. BOOKS RECEIVED. Law of Negligence, by Francis Wharton, LL. D. Principles and Practice of Courts of Justice in England and the United States, by Conway Robinson. Vol. VII. Richmond: Woodhouse & Parham, Randolph & English, 1874. Roscoe's Criminal Evidence. Seventh edition, with notes and references to American cases, by the Hon. George Sharswood, LL. D. Philadelphia: T. & J. W. Johnson & Co., 1874. Suell's Principles of Equity. Third edition, by John Richard Griffith. London: Stevens & Haynes, 1874. Fortescue's De Laudibus Legum Angliæ, with translation, by Francis Gregor. Notes by Andrew Amos, and a Life of the Author, by Lord Clermont. Cincinnati Robert Clarke & Co., 1874. Indiana Reports. Vol. XLIV. James B. Black, official reporter. Indianapolis. North Carolina Reports. Vol. LXXI. Tazewell L. Hargrove, attorney-general and reporter. Raleigh. CORRESPONDENCE. THE GENERAL TERM DECISIONS IN THE COURT OF APPEALS. NEW YORK, November 18, 1874. To the Editor of the Albany Law Journal: DEAR SIR-An examination of the record of the decisions, by the Court of Appeals, of the causes on the second calendar for May, 1874, will reveal some singular facts. I send you the following figures, made up carefully by myself with a view to ascertaining the chances which exist as to the decisions of the General Terms in the four departments of this State being sustained by the Court of Appeals: COURT OF APPEALS DECISIONS. The following decisions were announced in the Court of Appeals on Tuesday last: Judgments affirmed with costs - Hemenway v. Wilson, Wilson v. Maltby, Schenck v. Andrews, Henderson v. Spofford, Deas v. Wandell. Judgment reversed, new trial granted, costs to abide event - Gould v. Bennett, Salter v. The Utica and Black River R. R. Co., Churchill v. Onderdonk.- - Judgment reversed and new trial granted-Wood v. The People.— Orders affirmed with costs-Soverhill r. Suydam, Goelet v. McManus, Knapp v. Conger. Order of General Term reversed and that of Special Term affirmed with costs-Adriance v. Lagrave, Rinn v. The Astor Fire Ins. Co., James Yearance, receiver, etc.- Order of General Term affirmed and judgment absolute for defendants on stipulation with costs Wardrop v. Dunlop. Order reversed as to Amelia Ann Coulter, and judgment and all subsequent proceedings as to her set aside with costs, and order affirmed with costs as to James E. Coulter- White v. Coulter. Ordered, that remittitur be amended so as to read that Naylor & Co. be allowed and paid $2,410.54 in gold, with interest in currency from July 14, 1870; $450.34 in currency with interest from same date; and that the provision for rehearing at the election of Naylor & Co. be stricken out - Gurney v. The Atlantic and Great Western R. R. Co.- - Appeal dismissed with costsMundorff v. Mundorff. Motions denied with $10 costs- -Wheeler v. Clark, Bliss v. Lawrence, Bliss v. Gardener, Marvin v. Newman, Same v. Same. All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. Communications on business matters should be addressed to the publishers. The Albany Law Journal. ALBANY, DECEMBER 5, 1874. TAXATION OF MORTGAGES. Whether or not a tax upon a debt secured by a mortgage is practically a tax on the property mortgaged, and whether, if each be separately taxed, it presents a case of double taxation, are questions which have frequently engaged the attention of legislators and political economists, but which have been but little discussed by the courts. The Supreme Court of California, in Savings and Loan Society v. Austin, 46 Cal. 415, dwelt upon the subject at considerable length, but no conclusion seems to have been reached. Mr. Justice Crockett delivered the principal opinion, and put himself squarely upon the doctrine that, if a debt for money lent and secured by mortgage be taxed, and if the mortgaged property be also taxed, the same value and subject-matter has been twice taxed, and it presents a case of double taxation. The arguments and ratio decidendi of the learned justice are clever and ingenious, even if they do not carry conviction. But we should say, in limine, that the constitution of California provides that "taxation shall be equal and uniform throughout the State. All property in this State shall be taxed in proportion to its value, to be ascertained as directed by law." Nearly all the States in the Union - not, however, including New York-contain similar provisions; and, indeed, we may say that it is the practical construction of every constitution, whether containing the provision or not, that taxation should be equal and uniform. We may further add that the system of taxation adopted in California is like that adopted for the taxation of real estate in this State, what may be termed the in rem system—that is, a taxation of all the property within the State without regard to the persons who own it or are interested in it. Mr. Justice Crockett thus clearly and accurately states the question at issue in his mind, though, as it turned out, it was not the question at issue in the case: "The real point to be decided is, whether the same property has been twice assessed for the same tax; for it is obvious that if the subject-matter of the tax is the same, it cannot be twice assessed for the same tax; and it is immaterial in such a case by whom the title is held." The tax being upon the property itself, the inquiry was evidently, whether it had been twice taxed, and in solving that point the question of ownership was immaterial. Mr. Justice Crockett then proceeds to develop an argument which he at first thus states in brief: "Interest on money loaned is paid as a compensation for the use of the money, and the rate of interest, as agreed upon, is the amount which the parties stipulate will be a just equivalent to the lender. If, however, by the imposition of a tax on the debt, the government diminishes the profit which the lender would otherwise receive, the rate of interest will be increased sufficiently to cover the tax, which, in this way, will be ultimately paid by the borrower. The transaction would be governed by the same immutable, inflexible law of trade by reason of which import duties on articles for consumption are ultimately paid by the consumer, and not by the importer. The rate of interest on money loaned is regulated by the law of supply and demand, which governs all articles of commerce; and burdens imposed by law, in the form of a tax on the transaction, which would thereby diminish the profit of the lender, if paid by him, will prompt him to compensate the loss by increasing to that extent the rate of interest demanded. If his money would command a given rate of interest, without the burden, he will be vigilant to see that the borrower assumes the burden, either by express stipulation or in the form of increased interest. This is a law of human nature, which statute laws are powerless to suppress, and which pervades the whole realm of trade, governed by the law of supply and demand. Nor would the enactment of the most stringent usury laws produce a different practical result. Human ingenuity has hitherto proved inadequate to the task of devising usury laws, which were incapable of easy evasion; and wherever they exist they are, and will continue to be, subordinate to that higher law of trade which ordains that money, like any other article of commercial value, will command just what it is worth in the market- - no more, and no less. Assuming these premises to be correct and I am convinced they are it results that it is the borrower, and not the lender, who, in fact, pays the tax on borrowed money, whether secured by mortgage or not. But if secured by mortgage, he is taxed not only on the mortgaged property, but on the debt which the property represents, and which is held as a security for the debt. But in solving the question of double taxation on a debt for money loaned, the true point of inquiry, as I conceive, is not whether the debt is or is not secured by mortgage, but whether the money for the use of which the debt was created is taxed in the hands of the borrower, or of some other tax payer, to whom he has paid it. The money is the substance, of which the debt is but the shadow and representative; and though in a general, and, perhaps, in a strict sense, it is property, it is so only because it is capable of being again converted into money. Nevertheless, it but represents the sum originally loaned; and a tax upon the latter is substantially a tax upon the former. This may be illustrated by a supposed case. -- |