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Another amendment we have desired. The bankrupt law operates upon men whose situation is wholly unlike, excepting that they are unable to pay their debts. One large class of bankrupts, those for whom the law of 1841 was almost exclusively designed, have no assets at all. These men, having no estates to administer, need no assignee. For their cases it is only necessary to take the poor debtor's oath, as applied to all their creditors instead of to one. And we know of no reason why the creditors of a bankrupt alleging himself to be in this condition need any more protection than this, — the fullest notice of his application for a discharge from his debts, the amplest opportunity to examine him, and the right to have an assignee, if they choose to pay for the privilege. This amendment would be very simple; and under it an honest debtor of this sort could be discharged at an expense of twenty-five dollars or less, even if registers continue to be paid by fees.
Other suggestions will occur in our review of the action of the Senate, to which we now return.
A defect pointed out by a decision of the Supreme Court of Massachusetts was remedied on the motion of the late eminent and lamented senior senator of that state, by enacting that a creditor proving his debt shall not lose his right of action unless the bankrupt obtains his discharge.
Greater facilities for proving debts are provided by adding notaries public to the list of officers authorized to take the affidavits. This will probably diminish expense as well as trouble. For our own part, we see no objection to dispensing with the affidavits altogether, under proper regulations against collusion between assignees and supposed creditors. The enormous expense of notifying creditors, and of verifying their debts in certain rather rare cases, such as those of insolvent insurance companies, where the creditors are sometimes numbered by thousands, has amounted to a prohibitory tariff, which has played a principal part in driving some such cases to the state courts, or to compromises, which, though they have no doubt resulted satisfactorily, yet required, in one well-known instance, a special enabling act of Congress, and in others have, to some appreciable extent, impeded the free action of the debtors and creditors. And in many other cases these costs are burdensome.
Provision is made in one of the amendments for obtaining full statistics from clerks, registers, assignees, and marshals, for the instruction of Congress in all details of the operation of the law.
The remaining changes are mainly in the interest of debtors, and show some trace, if we may be permitted to say so, of the pressure of a recent commercial crisis, though we do not mean to be understood that some of them are not highly useful.
The time for which the commercial paper of a trader, &c., must remain dishonored to constitute an act of bankruptcy is extended from ten to forty days, and accommodation paper may be left unpaid for any length of time with impunity. The expediency of the latter provision may adinit of doubt.
In cases of compulsory bankruptcy no assent of creditors or payment of dividend is necessary to entitle the debtor to his discharge. This is on the theory that a bankrupt who is brought before the court against his will cannot be expected to warrant the amount of his assets or the good feeling of his creditors. This theory we believe to be false. The assets and the feeling of the creditors depend upon the conduct and course of business of the trader before he comes into court, and not on the mode of his coming. It is often the merest accident whether a voluntary or involuntary petition is filed the earlier; we have known cases in which they were presented by and against the same person within a few hours of each other. In the case of partnerships, one member who represents the firm to be insolvent may go into bankruptcy for himself and oblige the other to follow, if the insolvency is proved. Under this change of law the partner who comes in of his own accord must obtain the consent or pay the percentage before he can obtain his discharge, and the one who is forced in can bave it gratis, – a premium on staying out of bankruptcy which will not benefit either debtors or creditors. Besides, as soon as this law is thoroughly understood, every bankrupt will take care that some friendly creditor files a petition against him, and the law requiring assent of creditors will be practically repealed. In England, before voluntary bankruptcy was adopted into legislation, this mode of proceeding was exceedingly common.
An important feature has been copied from the English law, by which a just and equal composition, in money, offered by any person by or against whom a petition in bankruptcy is pending, may be accepted by a certain considerable fraction of his creditors so as to be binding on all. Care is taken for a full disclosure of the state of the bankrupt’s affairs, and for notice to all persons to be bound by the settlement. This provision we believe to be expedient in substance, though experience may hereafter suggest changes of detail.
The thirty-ninth section has been recast, and while the acts for which a debtor may be adjudged a bankrupt on the petition of his creditors have been re-enacted (excepting in respect to commercial paper), the procedure has been radically altered, by requiring that at least one-fourth in number and one-third in value of the creditors shall join in the petition. This is open to obvious objections, from the impossibility of the petitioning creditors being informed beforehand whether they have the requisite qualifications, and from the very great opportunity for fraud on the debtor's part in making or appearing to make new debts. To meet these objections there is a provision that the debtor, denying that the amount or number of petitioners is sufficient, must forthwith file a written list of all his creditors, with the amounts due them, and the petitioners shall have a reasonable time, not exceeding ten days, in which to make up the requisite number. Fraudulent debtors, who are the only persons for whom compulsory bankruptcy has any terrors, will easily evade these safeguards. It seems to us that the purpose of this amendment, which is that one or two hard creditors shall not have the aid of the law in oppressing an unfortunate debtor, is fully met by the composition clause already noticed, because under that clause all creditors can be forced to accept a proposition which is satisfactory to two-thirds of them and to the court.
The Supreme Court are authorized by one of the amendments to simplify and consolidate the duties of the register, marshal, clerk, and assignee, in order to avoid prolixity, delay, and expense. This provision alone, if it should pass, is worth all the time and thought that Congress has devoted to this subject.
Several other changes of detail were made, which we need not notice at this time. On the whole, notwithstanding the criticisms we have ventured to make, we think many of the amendments are valuable, and that it would be very much better that all be passed than that all should be rejected. Above all, we welcome the appearance of a desire to give careful and thorough examination to the law in all its parts, for it is only on the condition that Congress shall be willing to consider and adopt the changes that experience will surely suggest, that a bankrupt law can be permanent.
MASTER AND SERVANT. LIABILITY OF MASTER FOR INJURY TO SERVANT FROM CARELESSNESS OF FELLOW - SERVANT. — SUPREME COURT. Union Pacific R. R. Co. v. Fort. — The Supreme Court, with one dissentient, have held, in the case above entitled, that where the railroad company employed a servant to manage machinery, and he wrongfully directed a boy, who was a helper and under his orders, to do a service outside of the scope of his employment, attended with danger and resulting in severe bodily injury, the railroad company was liable, both upon the maxim respondeat superior, and upon the obligations arising out of the contract of service. The prevailing notion that employés constitute a class concerning whom a railroad company can exercise almost any degree of negligence has been already carried by courts farther than either the true interpretation of the contract of service, or even humanity, would seem to allow; and this decision, we think, is in the interest of that thorough subordination and careful oversight that ought to be required of those who have the most vital interests of others in their keeping
PATENT LAW. Right TO USE PATENTED ARTICLE. — SUPREME COURT. Adams V. Burke. — A new and interesting question is here decided, Mr. Justice Miller giving the opinion. Plaintiff was the assignee of a patent for an improvement in coffin-lids. Defendant was an undertaker, and used in his business coffins with the patented improvement. Defendant bought his coffins, within a circle of ten miles, of persons to whom the right to manufacture, sell, and use within that circle had been sold. He used the coffins so bought in the prosecution of his business, but outside of the ten-inile circle. And the court held he was protected in that use, and that when the coffins were once lawfully made and sold, there was no restriction on their use to be implied for the benefit of the patentee or his assigns.
SUPREME Court. – The Bar Association of San Francisco have issued a circular calling on the lawyers of this state to assist in obtaining the removal of the Supreme Court from Sacramento to that city. One benefit expected seems unfair to the judges. The circular says,
The judges of the court are able and industrious ; but experience has shown that, owing to the excessive summer heat of Sacramento, they have been compelled to omit their duties for the July term of each year, and have also been led to maintain, as far as possible, their residences in other parts of the state, and thus an entire term of the court is yearly lost to litigants and the bar.
Were the court removed to San Francisco, the July term would be saved, and the judges could be together the greater portion of the year, when not actually sitting to hear arguments, for consultation, and thus, as we believe, they would be enabled to dispose of at least one-third more cases than are now decided during the year; and the benefit to clients and to counsel would be increased to a much greater proportion.
We do not know what salaries California pays her judges, but unless she enjoys an enviable distinction among her sisters in that regard, she might afford that hard-worked class of men a summer vacation, without being called wasteful, or even liberal. But it may be that a cool resort in summer will induce the judges to work all the year round.
Codes. ADULTERY. BIGAMY. – County Court of San BERNADINO. People v. Oades. — We are indebted to the Los Angeles Weekly Express for the following:
An Englishman named Oades has made the discovery that under the code in this state he can lawfully enjoy two wives at the same time. His story is briefly this: Oades came to California, and got married. In about a year he had a child; and, soon after, another woman with two children arrived, and Oades and the two women lived together, to the great scandal of the neighborhood. Being complained of for “open and notorious cohabitation and adultery” with the last arrival, he showed a marriage in England twenty years before, and was acquitted. He was then complained of for the same offence with the other woman. In defence to this charge he found that the code provided that the marriage of a person having a former husband or wife living is void, “unless such former husband or wife was absent and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, in which case the subsequent marriage is void only from the time its nullity is adjudged by a proper tribunal.”
He proved that some eight years before he was living in Wellington county, New Zealand, on the frontiers, when, without warning, the Maories — a tribe with whom the English were at peace — made an inroad into the settlements. Oades was at the time temporarily absent in Victoria, and returned only to find his homestead burnt and his family disappeared. Some human remains were found in the ruins; and, from this and from such information as he could gain during the ensuing two years, he was gradually forced to the conviction that his wife and children were dead; and being loth to remain amid the scenes of his distress, he left New Zealand and came to California. Upon this state of facts Oades claimed that his marriage with Mrs. Oades No. 2 was valid. So this complaint was dismissed. He was then indicted for bigamy. At the trial, the above-stated facts being shown, defendant's counsel relied upon the provisions of the Penal Code in relation to bigamy, which expressly provide that no person shall be held guilty of bigamy “ whose husband or wife had been absent for five successive years” (prior to the second marriage), without being known to such person within that time to be living. The court held that, however desirable it might be to convict the prisoner, the position taken by his counsel was clearly the right one, and accordingly instructed the jury to acquit, which was done, and Oades returned home triumphantly with his two wives.'
The code provided that a marriage could be annulled where the former husband or wife was living at the time of the second marriage, provided the action for annulment be brought by one of the parties to the second marriage, or by the wife of the first marriage. But no persuasion would induce Oades or either of his wives to bring this action: they were satisfied with the code.
Tue Boston, HARTFORD, AND ERIE RAILROAD COMPANY, which was originally incorporated in Connecticut, has been dissolved by a decree of the Superior Court in New Haven County, pursuant to the advice of the Supreme Court of Errors, upon the petition of one of its stockholders, brought under a recent statute.
Hon. ORIGEN S. SEYMOUR, LL.D., Chief Judge of the Supreme Court of Errors, became seventy years of age in February, and, by a provision of the state constitution, thereupon went out of office. Complimentary dinners were tendered him, in view of his retirement, by the Fairfield County Bar and the Middlesex County Bar, at which speeches were made by Governor Ingersoll and others.
A new court-house has just been completed in New London County, at Norwich, at a cost of about $250,000.
The semi-centennial anniversary of the foundation of the Yale Law School occurs in June next. Chief Justice Waite, who is a graduate of the college, of the Class of 1837, and received the degree of LL.D. from it in 1871, is expected to preside.
The commission to revise the statutes of the state have nearly completed their work, and will report to the General Assembly in May.
ILLINOIS. BANKRUPTCY. NATIONAL BANK. — UNITED STATES DISTRICT COURT. In re Manufacturers' National Bank. — Judge Blodgett has had the question squarely before him, — whether a national bank can be put into bankruptcy,and has decided it in the negative, holding that the provisions of the National Currency Act for winding up insolvent banks are not co-ordinate remedies concurrent with the Bankrupt Act, and that the latter does not supersede the former. If this holding be correct, as we are inclined to think it is, the whole power over insolvent banks is in the hands of the Controller of the Currency, and injured creditors can enforce their demands only through him, except by suits at law, – the Currency Act giving them no summary process.