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against public policy a court of equity will rescind, notwithstanding the party plaintiff has participated therein, if public policy would be defeated by allowing the instrument to stand. Id., §§ 695, 695a. So long as the contract continues executory, the maxim "in pari delicto does not apply at all. Ad. Eq. *175; Spring Co. v. Knowlton, 103 U. S. 49. These principles open the way for equitable intervention here, and nothing appears to induce a denial of the relief sought. It is indeed inferable from the evidence that all the stockholders of the plaintiff company either expressly assented to the contract of October 5, 1883, or acquiesced for a season therein. But it is shown in Thomas v. Railroad Co., 101 U. S. 71, 83, that a contract not within the scope of the powers conferred on a corporation, and against public policy, cannot be made valid by the assent of every one of the shareholders. Nor is it a sufficient reason for refusing to interfere, that some of the directors who were parties to the indefensible scheme for private speculation heretofore referred to were active in promoting this suit and in its proseoution. Even for them there is a locus penitentiæ. Spring Co. v. Knowlton, supra. They however are not the complainants. The suit is by the corporation, which owes a paramount duty to the public. Its former course was inexcusable indeed; but having retraced its false steps, it is now in the right pathway. Having entered into a contract forbidden by public policy (as was said in Thomas v. Railroad Co., supra), | "it was the duty of the company to rescind or abandon it at the earliest moment." This it has done; but to the end that it may the better discharge its obligation to the public, it needs the aid of a court of equity to set aside the improvident and illegal contract with which it is embarrassed. The railroad is unfinished. The work of construction has ceased. Although free to proceed, the defendant for many months has done nothing. His inaction doubtless wise, for were this bill dismissed he could not expect a court of equity to decree the specific performance of his construction contract; and if at law he could recover at all for future work it would be as upon a quantum meruit only. Cir. Ct., W. D. Penu., Aug. 13, 1884. New Castle, etc., R. Co. v. Simpson. Opinion by Acheson, J.
PATENT-SUIT FOR INFRINGEMENT-LACHES-DEMURRER.- Bill for the infringement of patent, alleging unauthorized construction and use of patented invention by defendant for thirteen years, and making no excuse for complainant's failure to assert his rights during that period, held, demurrable. That the general principles of equity jurisprudence control in patent cases cannot be doubted. Rev. Stat., § 629, ¶ 9; also § 4921, which last section contains these words: "The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity to prevent the violation of any rights secured by a patent, upon such terms as the court may deem reasonable." Now generally speaking the laches of complainant is sufficient ground for non-interference on the part of a court of equity. Nearly all the life-time of this patent the complainant has remained silent, by his silence consenting to, or at least acquiescing in, the acts of the defendant. To interfere now by injunction would seem manifestly inequitable. That this question of laches can be raised by demurrer and that it is a good defense to a bill in equity, is abundantly sustained by the authorities. In Walk. Pat., § 597, it is said: "The defense of laches can be made in a demurrer, or in an answer, or in argument on the hearing, without any pleading to support it. But a plea is not appropriate in such a defense; because if the bill shows delay, and is silent about ex
cuses therefor, the method of a plea would be to state that there is no such excuse, and because by taking issue on such a plea and framing an excuse the complainant could cut off all excuses and win the case. To guard against a demurrer based on laches, in a case where long delay intervened between the infringement and filing of the bill, the bill ought to state the existing excuses for that delay; and to guard against such defense being started on the hearing the evidence ought to show whatever excuse the complainant can interpose." See also the following authorities: Maxwell v. Kennedy, 8 How. 222; Lewis v. Chapman, 3 Beav. 133; Saunders v. Smith, 3 Mylne & C. 711; Collard v. Allison, 4 id. 487; Wyeth v. Stone, 1 Story, 273: Root v. Railway Co., 105 U. S. 215; Curt. Pat., § 440, in which the author says: "Where a patentee seeks an injunction against an alleged infringer, and the evidence shows that this infringer, or others, have been in the habit of disregarding the exclusive right con ferred upon the patentee, and this with knowledge, either actual or implied, on the part of the patentee, the court will dismiss the bill on the ground that the complainant has been guilty of laches, or that there is a want of that exclusive possession which lies at the foundation of every claim for an injunction." These authorities, enforcing the general rule of equity jurisprudence, compel the sustaining of the demurrer. Cir. Ct., E. D. Mo., Sept. 19, 1884. McLoughlin v. People's Ry. Co. Opinion by Brewer, J.
CHATTEL MORTGAGE-EXECUTION AND RECORDMORTGAGOR REMOVING FROM STATE-LACHES IN TAKING POSSESSION-EFFECT OF RECORDING ACTS.A chattel mortgage executed and recorded in another State, where the mortgagor resides and the property is situated, and according to the laws of that State, need not, to preserve the rights of the mortgagee, be filed in this State, upon the mortgagor, with the property in his possession, removing to and becoming a resident of this State. The rule is that the validity and effect of contracts relating to personal property are to be determined by the laws of the State or country where they are made, and as a matter of comity they will, if valid there, be enforced in another State or country, although not executed or recorded according to the law of the latter. And this rule has been applied in a great number of cases to chattel mortgages, where the mortgagor removes with the property into another State, continuing in possession of it, permissible by the law of the former, under circumstances that, had the mortgage been executed in the latter State, by one resident therein, would have made it invalid as against creditors or purchasers. Jones Chat. Mort., §§ 260, 299301; Offutt v. Flagg, 10 N. H. 46; Ferguson v. Clifford, 37 id. 86; Cobb v. Buswell, 37 Vt. 337; Jones v. Taylor, 30 id. 42; Taylor v. Boardman, 25 id. 581; Ballard v. Winter, 39 Conn. 179; Langworthy v. Little, 12 Cush. 109; Bank v. Danforth, 14 Gray, 123; Martin v. Hill, 12 Barb. 631; Kanaga v. Taylor, 7 Ohio St. 134; Wilson v. Carson, 12 Md. 54; Smith v. McLean, 24 Iowa, 322; Simms v. McKee, 25 id.341; Feurt v. Rowell, 62 Mo. 524. The court below disposed of the case mainly upon the proposition that the mortgagees were guilty of laches in not taking possession of the property within a reasonable time after they had the right to take possession. It stated this to be the rule: "The law requires a mortgagee, when default is made, to take possession of the property within a reasonable time thereafter in order to maintain and protect his lien' as against subsequent creditors and purchasers; and if he suffers the property to remain in the possession and under the
control of the mortgagor, after the expiration of such reasonable time after default, it is evidence of fraud, aud he is guilty of laches, which should not protect his rights against bona fide purchasers of the property without actual notice." This is not supported by authority. See Hudson v. Warner, 2 Har. & G. 415; Shurtleff v. Willard, 19 Pick. 202; Fuert v. Rowell, 62 Mo. 524; Steele v. Adams, 21 Ala. 534; Spraights v. Hawley, 39 N. Y. 441. (2) Where the statute gives to the filing or recording of a chattel mortgage the same effect as to subsequent purchasers or mortgagees, as the delivery of the property to the mortgagee, leaving the mortgagor in possession, will not while such effect continues postpone the rights of the mortgagee to those of subsequent purchasers or mortgagees. Keenan v. Stimson. Opinion by Gilfillan, J.
[Decided Aug. 6, 1884.]
MUNICIPAL CORPORATION-CARE OF STREETS-NEGLIGENCE-PROXIMATE CAUSE.-A municipal corporation is not relieved of the care and responsibility for the condition of one of its streets, merely by permitting a railway company to lay out and operate its track upon and along it. Where several concurring acts or conditions of things, one of them a wrongful act or omission, produce an injury, such wrongful act or omission is to be regarded the proximate cause of the injury, if the injury be one which might reasonably be anticipated from the act or omission, and which would not have occurred without it. In McMahon v. Davidson, 12 Minn. 357 (Gil. 232) it was stated as the rule that it is immaterial how many others may have been in fault if the defendant's act or negligence was an efficient cause of the injury. In Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62), the defendant negligently left his horses unhitched in a city street, and they ran away, came into collision with and frightened another team properly hitched, which also ran away, and came into collision with and injured plaintiff's horse. The court held that defendant s negligence in leaving his horses unhitched was the cause of the injury, saying: "The running away of the defendant's team was the efficient cause of the injury to plaintiff's horse, because it put in operation the force which was the immediate and direct cause of the injury.' In Johnson v. Chicago, M. & St. P. Ry. Co., 16 N. W. Rep. 488, a fire caused by a spark from defendant's engine commenced in a pile of corn-stalks negligently left by N. near the track, passed from the corn-stalks to his barn, from his barn to another, and from that to plaintiff's. It was held that the negligence of the defendant in allowing the sparks to escape from the engine was a proximate cause of the injury to plaintiff. In Nelson v. Chicago, M. & St. P. Ry. Co., 30 Minn. 74, which was an action for injuries caused by defendant's failure to fence its road, the rule was stated that if the injury was one which a man of ordinary experience and sagacity could foresee might probably ensue from a failure to fence, then the damage would be sufficiently proximate and direct to entitle the injured party to recover." This was followed and applied in Maher v. Winona & St. P. R. Co., 18 N. W. Rep. 105, in which it was held that the failure to fence the railroad might be the proximate cause of the injury, where the plaintiff's horses, which he was driving along the highway, were frightened by a train of cars passing, got beyond his control, got away from him, ran upon and along the track into a culvert, and one was killed and the other injured. This court sustained an instruction to the jury in the language which we have quoted from the Nelson case. Campbell v. City of Stillwater. Opinion by Gilfillau, C. J. [Decided July 18, 1884.]
MUNICIPAL CORPORATION-CHANGE OF GRADE OF STREET DAMAGES-SURFACE WATER.-Au action will
not lie against a city for consequential injuries to
The form of oath might be altered to read in the alternative, to wit, that deponent has not since the passage of the (proposed) act or within three years last past contributed, etc. That would obviate the diffi. culty. Yours,
self the risk of the possible consequences of such for the next three years at least, from filling any juchanges in the grade of the street as may become nec- dicial position. Their acts in so contributing were essary for the public convenience and safety. Raising certainly not illegal then, and to now declare it to be the grade of the street, as was done in this case, and an offense disqualifying them from filling judicial with the consequences alleged, is not a aking of positions would be an ex post facto law of the worst plaintiff's property for which, under the Constitution, sort. The principle of the act is undoubtedly good, compensation must be made. The injury complained but the section referred to should be so amended that of is merely a consequence of the exercise of a legal those lawyers who contributed to the legitimate exright which the public acquired, and to which plaint-penses of the last campaign, and also of the two preiff's land became subject when the land was taken for ceding it, should not be debarred from being candia street. Whatever taking there has been was com dates for a judicial position for the next three years to plete when the easement was first acquired. The constitutional provision is not applicable to the case. Burritt v. New Haven, and Callendar v. Marsb, supra. It is claimed that certain provisions of the city charter, providing for ascertaining" the amount of all damages occasioned to any private property by reason of any public works or structures," should be so construed as to sustain a right of recovery. We find no reason to so construe the act. These terms of the act were not employed for the purpose of conferring a right to compensation where none existed before, but merely with reference to providing a method of ascertaining the compensation to be paid for such taking of or injuries to property as, under the existing law, entitled the owner to compensation. As we understand the allegations of the complaint respecting injury from water coming upon plaintiff's property, the facts are in substance that before the grade of the street was changed the sewers and gutters carried the surface water from the premises in the vicinity of this lot to the northward and into the Mississippi river; but that these gutters and sewers being filled by the raising of the street, the surface water from the territory south of this property is left to flow over plaintiff's land as it naturally would in the absence of any artificial means of carrying it off. The city is not liable for failure to provide a means for carrying off this surface water (Lee v. City of Minneapolis, Alden v. City of Minneapolis, O'Brien v. City of St. Paul, supra; 2 Dill. Mun. Corp. (3d ed.) 1039 et seq.), and after it had once made provision which accomplished that result by the gutters and sewers of this street, upon the grade first established, it was not liable for failure to provide new means of accomplishing that end, when from the change of grade the old aqueducts became useless. Henderson v. City of Minneapolis. Opinion by Dickinson, J.
[Decided July 19, 1884.]
POLITICAL CONTRIBUTIONS BY CANDIDATES FOR
JUDGESHIP. Editor of the Albany Law Journal:
In your New York letter, published in your issue of the 24th inst., is a notice of a proposed bill to prohibit contributions for political purposes from judicial officers, or candidates for judicial offices. One section of the proposed bill requires every person elected to hold the office of judge, before assuming said office to file in the office of the secretary of State an oath to the effect that he has not within three years prior to the taking of such oath paid any assessment or contribution for political purposes.
As in this section of the State, pretty nearly all of the members of the bar took part on one side or the other in the recent presidential campaign, and contributed of their funds thereto, the passage of this section in its present shape would disqualify them all
H. W. T.
NEW YORK, Jan. 27, 1885.
[We do not see that our correspondent "obviates the difficulty." For or we should read "and." -ED.]
NEW BOOKS AND NEW EDITIONS.
RAPALJE ON CONTEMPT.
A Treatise on Contempt, including Civil and Criminal Contempts of Judicial Tribunals, Justices of the Peace, Legislative Bodies, Municipal Boards, Committees, Notaries, Commissioners, Referees, and other offices exercising judicial and quasi judicial functions, with Practice and Forms. By Stewart Rapalje. New York, 1884. L. K. Strouse & Co. Pp. 273, xivi.
The subject of this book is one which the active practitioner may be called upon at any moment for advice. At any point along the line of the progress of a case the question of "contempt" is apt to crop out. And now instead of having to wade through digests, and volumes of reports, with a feeling of assurance he can turn to the above, and find, as the author says in his preface, "the law as laid down in the books." Would that judges would apply the same law. The work is supplemented with appropriate forms and amply indexed.
COURT OF APPEALS DECISIONS.
THE following decisions were handed down Tuesday, Feb 3, 1885:
Order of General and Special Terms reversed and proceedings remitted to Special Term to appoint commissioners--In re Application of the Union Ferry Co., etc.-Judgment affirmed - People, respondent, v. Alfred F. Vedder, appellant.-Judgments affirmed with costs-In re Will of Catherine Harder, deceased, Julia E. Houghkirk, administratrix, respondent, v. President, etc., of the Delaware and Hudson Canal Co., appellant; Foster B. Moss, exr., appellant, v. James Hasbrouck and others, respondents.-Judgment affirmed, on ground that there is no competent evidence of the execution of a will, without costs to either parties-In re Probate of Alleged Will of John Russell, etc.- -Motion to amend notice of appeal denied, with costs-Catherine C. Mc Donald, respondent, v. Frederick Sutor, appellant.
The Albany Law Journal.
ALBANY, FEBRUARY 14, 1885.
Na recent address before the Illinois State Bar
the following very forcible and novel sentiments concerning the treatment of criminals: "They should be sent where they can get all the barbarism they want. This advice is so old that it seems new. In Job, exile to an island is a familiar idea. All nations have practiced it until recently. England started her empire in America and in Australia by it. We are maintaining fifty public nuisances, monasteries of malignity for the more complete eradica. tion of virtue in the depraved than is otherwise possible, filled with 50,000 convicts who to our civilization are mischievous. To Stanley's new State on the Congo, where the conditions of sensual existence are easy enough for the most incompetent, they would be an invaluable help, industrial missionaries, better than missionaries, for being more nearly like the rogues among whom they would be sent, the two would better understand each other than either of them now understand the missionaries. We spend vast sums of money and months of time and learning in litigating the question whether a man is a criminal or a lunatic. In fact, the question is immaterial. Both need nearly the same treatment, viz.: easy conditions of physical support by light labor, freedom as nearly as possible from all restraint, and especially from the highly complex restraints of civilized society; plenty of play and amusement; in fact, just the conditions which asylums and penitentiaries do not supply. Especially the criminal needs his wife and child, which the penitentiary takes away. When the relatives and friends of criminals receive letters from their convict friends in Africa advising them that they are doing far better there than they ever could here, and would not return if they could, convictions of crime will be easy and crime will diminish, because the persons who now constitute the criminal class will be drawn off and usefully employed. During our war crime ceased throughout the country, because the war created a demand for the criminal and made him useful. Colonizations of criminals will do exactly the same thing. I would like to see the treatment which we apply to missionaries and criminals exactly reversed by sending the criminals to the heathen and placing the missionaries under the operation of that great forcing process, the penitentiary, of course with such changes in the nature of the institution as would adapt it to its new inmates, but adhering to the principle that righteousness, like crime, is best cultivated by gathering large quantities of it together in one spot. We should then be intensifying piety at home as we now intensify crime. If it would bring out our missionaries as much better as VOL. 31 No. 7.
it now makes our criminals worse, our home righteousness would be irresistible. Russia finds this process of forcing Nihilism in her universities highly successful. And if life among the heathen should kill off our exiled criminals as fast as it does our missionaries, whose average life abroad is three and one-half years, we could have the satisfaction of knowing that though they perished on a foreign shore it is in a good cause.' This temporarily stuns If it is sarcasm it is not without merit; if it is a joke, although it is rather robust, we might tolerate it; but if it is serious, we should simply answer that every nation is bound in fairness to "wash its dirty linen at home."
A correspondent of the Central Law Journal writes as follows, concerning the habits of the English judges of delivering opinions seriatim: "It is an intolerable nuisance, after one judge has exhausted the case, to have another take it up, and go over all the points the first has made, and add a word or two by way of illustration, and agree with the first. It gets worse and worse when a third and fourth go through this same formula. We have to pay for these tautological reports. Our periodicals follow suit in this stupidity. They usually publish the opinions of all the judges, which are generally as much alike as two peas. Life is too short to read all this matter." This is quite just. It has often occurred to us, but it never occurred to us to say it, because our hands have been full in correcting the bad habits of our own judges. This particular bad habit however is peculiar to the English bench. The superfluity of opinions may be endured up to the house of lords, for there is usually some new light or turn of expression that gives something like variety to the unnecessary performance. But when it comes to the house of lords there is not a single alleviating characteristic, unless may be the recent poetical quotations indulged in by Lord Fitzgerald. How much better it would be if one judge should pronounce the opinion, and the others should content themselves with saying "ditto," or "me too."
We recently called attention to the English mangling of Mr. Bigelow's work on Torts, by omitting all the American cases. Now a Mr. Grigsby has laid sacrilegious hands on the ark of Story's Equity Jurisprudence, under the pretense of editing it. The Law Journal says of it: "An English edition of this American legal classic will be received with much interest. The first question which the reader will ask himself is, upon what principle has the editor proceeded? The work might have been done in two ways. The text of Story might have been looked upon as sacred, whether it professed to be founded on English or American cases. In this view, the last edition by Story himself would have been printed entire, with comments by the editor either in the form of notes or bracketed interpolations, with the object of showing either that Story's
law is the law of England at the present day or that it is not, and if not, why not. This we imagine is the ideal way of editing the book. Mr. Grigsby perhaps was deterred from following it by practical considerations. It might have required more space than was available, or might have been supposed unsuitable in that form for the practical English lawyer. We do not think he or his publishers ought to have been so deterred, but such is the case. Another mode of editing the book would have been to re-write it, using Story where it was considered convenient. This probably was considered as effacing Story too completely. The third and worst mode of editing has been adopted - namely, by omitting such part of Story as is borrowed from American cases, reproducing so much of him as is based on English cases, and putting on the top of all the subsequent English cases and statutes. The result of this compromise is mixed. We have neither an effective treatise on equity as now recognized by English law, nor have we a full exposition of the views of Story." It would be much fairer to steal Story's work without credit than to misrepresent or castrate it.
** * *
result of an election, why may he not speak and write as he thinks?" Our judges have usually and wisely refrained from actively participating in politics-except to get themselves nominated—but it would be absurd to enact that a judge shall not make a political speech.
The family of the late Secretary Folger have presented his legal scrap-book and common-place book to the editor of this journal. It is an extensive and very curious collection, mainly consisting in manuscript slips, sometimes several deep, written without erasure or blots, in a very legible hand, and all accurately indexed. The collection was principally formed while Mr. Folger was on the bench of our Court of Appeals. He had alluded to it in correspondence with the editor, and had frequently made extracts from it for this journal.
The book contains two unfinished articles for this
The spirit of civil service reform seems to have gone mad in Virginia. Last winter the legislature enacted as follows: "It shall not be lawful for the judge of any court, the superintendent of public instruction, any superintendent of schools, the superintendent, manager, or any employee of any asylum or State institution of learning, actively to induce or procure, either directly or indirectly, or to attempt, either directly or indirectly, to induce or procure any qualified elector to vote in any election for any particular candidate, or in favor of any particular political party, or to vote against any particular candidate or against any particular party. It shall not be lawful for any of the officers or employees, mentioned in the foregoing section, to participate actively in politics; and making political speeches, or the active or official participation in political meetings, shall be deemed to be an active participation in politics, within the meaning of this section." A school superintendent was convicted under this act of making a political speech, his appeal the Court of Appeals of Virginia has recently decided the law to be unconstitutional. The Independent very justly observes: "An office-holder has as much right actively to participate in politics as any other man. He may, if he chooses, make speeches on political questions, attend political meetings, and seek to influence the action of his fellow citizens in respect to candidates and parties; and any law making such conduct a misdemeanor is in conflict with his fundamental rights of citizenship, and quite as bad as the old blue laws' of other days. If an officer may be thus restrained by a legislative statute, why may he not be equally restrained from voting according to his sentiments? If he may vote as he thinks, and thus influence the
The New York Mail and Express, with its weekly edition of January 29th, sends out a supplement of eight pages, containing a full reprint of the Civil Code proposed by Mr. Field. This is an opportune publication, bringing the proposed body of our laws before the laymen of the State, and giving them the opportunity to see and judge for themselves. It is the privilege of the people to say whether they will have their laws written, or whether they will have them floating vaguely in the discretion or inThe obstructionists discretion of a few judges. talk about the dangers of adopting this Code because it has been hastily prepared. It has been in preparation for more than a generation. Very few but lawyers have ever seen it. Now let the people see how simple a thing the statutory enunciation of a principle may be, when it is not made to minister to the interest of a chosen body of interpreters.
NOTES OF CASES.
̄N Champlin v. Village of Penn Yan, 34 Hun, 33, an advertising banner, twenty-four feet wide and twelve feet deep, was suspended across one of the streets in the defendant village. The top was attached to a wire and ropes which were fastened to the tops of the building fronting on the street