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question, Hammond, J., said: "It may be a test of the soundness of the judgment here rendered to consider whether, under its operation, it would be competent for this consolidated corporation to ignore its Kentucky existence, and describing itself as a corporation under the laws of Louisiana, sue a citizen of Kentucky in this court (sitting in Kentucky), or whether a citizen of Kentucky, ignoring the Kentucky statutes, might sue it in this court as a Louisiana corporation 'found' within this district; and if either be admissible, why the same right to choose the capacity in which it shall conduct the litigation does not exist in favor of the right of removal when sued in the State courts." In other cases besides the Nashua & L. Corp. v. Boston & L. Corp., already cited, it has been held that a corporation organized and consolidated under the laws of two States, describing itself as a corporation of any one of them, and ignoring the statutes of the other, may sue a citizen of the latter in the Federal court there sitting. St. Louis, A. & T. H. R. Co. v. Indianapolis & St. L. R. Co., 9 Biss. 144; Chicago & N. W. R. Co. v. Chicago & P. R. Co., 6 id. 219. See also Railway Co. v. Whitton, 13 Wall. 271, 283, followed and re-affirmed in Muller v. Dows, 93 U. S. 444, 448. While at common law a corporation may not migrate, but must dwell in the place of its creation, and cannot be sued elsewhere, yet under the laws of Congress and of the States it may exercise its authority in a foreign territory upon such couditions as may be prescribed by the law of the place. "One of these conditions may be that it shall consent to be sued there. If it do business there it will be presumed to have assented, and will be bound accordingly. For the purposes of Federal jurisdiction it is regarded as it it were a citizen of the State where it was created, and no averment or proof as to the citizenship of its members elsewhere will be permitted." Railroad Co v. Harris, 12 Wall. 65. In the case last cited it is also said: "We see no reason why several States cannot, by competent legislation, unite in creating the same corporation, or in combining several pre-existing corporations into a single one. The jurisdictional effect of the existence of such a corporation, as regards the Federal courts, is the same as that of a co-partnership of individual citizens residing in different States." See also St. Clair v. Cox, 106 U. S. 350; Ex parte Shollenberger, 96 id. 369; Railroad Co. v. Koontz, 104 id. 5; Life Ins. Co. v. Woodworth, 111 id. 138; Railroad Co. v. Railroad Co., 10 Fed. Rep. 497; Callahan v. Railroad Co., 11 id. 536. In Railroad Co. v. Wheeler, 1 Black, 297, the Supreme Court at an earlier date, speaking of a consolidated company, had said: "The president and directors of the Ohio & Mississippi Railroad Company is therefore a distinct and separate corporate body in Indiana from the corporate body of the same name in Ohio, and they cannot be joined in a suit as one and the same plaintiff, nor maintain a suit in that character against a citizen of Ohio or Indiana in a Circuit Court of the United States." The statutes 'of Indiana provide for suits against foreign corporations doing business in the State, and for service of process upon agents found in charge of such business. Rev. Stat. 1881, §§ 3022, 3030. But in respect to consolidated bodies, having a chartered existence both in this and in a foreign State or States, it seems quite doubtful whether these statutes, which in terms embrace only "corporations not incorporated or organized in this State," can be considered applicable. The conclusion which I have reached is in some measure fortified perhaps by the consideration that if judgment could be given in this action against the defendant as a Michigan corporation, it would be binding upon the company in this State as well as in Michigan, and might be enforced by execution issued directly against the property of the company here. The property of
one company is the property of the other. According to the decision in Horne v. Boston & M. R. R., 18 Fed. Rep. 50, the fact that the injury complained of was suffered in Michigan is not material to the question of jurisdiction. Cir. Ct., D. Indiana, 1884. Burger v. Grand Rapids, etc., R. Co. Opinion by Woods, J. (22 Fed. Rep. 561.)
PENNSYLVANIA SUPREME COURT
DAMAGES-LIQUIDATED OR PENALTY-PROFITS.—A. agreed to place in B.'s mill, within a stipulated time, certain machines to make flour, which should have a capacity not below 200 barrels of high grades of flour daily, and further agreed that it should be no experiment, aud in proof thereof that in case the results were not as promised the machines should be retained without any price being paid. The machines when furnished were found not to make a high grade of flour, and not to be capable of producing the stipula ted number of barrels per day. In an action by B. against A. to recover damages. Streeper v. Williams, 12 Wr. 454; Shreve v. Brereton, 1 P. F. S. 185. In Mathews v. Sharp, 3 Out. 564, Mr. Justice Trunkey said, referring to Streeper v. Williams, supra: "In an elaborate opinion it was ruled that to determine whether the sum named as a forfeiture for non-compliauce is intended as a penalty or as liquidated damages, it is necessary to look at the whole contract, its subject-matter, the ease or difficulty in measuring the breach in damages and the magnitude of the stipu. lated sum, not only as compared with the value of the subject of the contract, but in proportion to the probable consequences of the breach." There are numerous authorities on this subject, but probably their best expression is found in the foregoing citations. Held, that the clause in the agreement that the machines might be retained was not a liquidation of damages, but in the nature of a penalty. Held further, that the measure of damages was the amount paid upon the machines, the loss by defects in the machinery, and the cost incurred in repairing the mill and putting it into condition to produce 200 barrels daily of a high grade of flour, less the value of that portion of the defendant's machines retained and used in the repairing and refitting of the mill. The loss of possible profits, which might have been made if the mill had run properly, was not a proper subject of damages, the plaintiff being measurably in fault, and further because such damages were too remote and speculative. Hoy v. Gronoble, 10 Cas. 11; Adams Express Co. v. Egbert, 12 id. 364. Pennypacker v. Jones. Opinion by Green, J. [Decided Oct. 6, 1884.]
RECORDING ACT-LEAVING WITH RECORDER-INDEX NO PART OF RECORD.-Prior to the act of March 18, 1875, at least it was well settled that a deed was in contemplation of law recorded, when it was left in the recorder's office, and put upon the entry book for that purpose. The duty of the recorder was to record it, and the responsibility rested upon him for any default in the proper discharge of that duty; the consequences of his default could not be visited upon the owner, who had done all that the law required in depositing the deed in the office for that purpose. A different Wright, 519, where it was held that mortgages must be doctrine was perhaps declared in Luch's Appeal, 8 recorded in a "" mortgage book," and that they are not properly recorded in any other book, where they cannot be found by means of a "mortgage index," but that case was expressly overruled in Glading v. Frick, Nor. 460, where it was said by Paxson, J.: "We feel ourselves constrained to return to the rule laid
down by Chief Justice Gibson in McLanahau v. Ree-
[Decided Oct. 20, 1884.]
held liable only as a bailee for hire, and it was decided that the bailor could not recover upon simple proof of the destruction of the goods by fire, he must go farther and show that the loss was caused by the negligence of the bailee. Lamb v. Camden & Amboy R. & Tr. Co., 46 N. Y. 271; Farmham v. Camden & Amboy R. Co., 55 Penn. St. 53. In the latter case it was said, “that where a bailee accounts for a loss in a way not to imhis|plicate himself in a charge of negligence, this is a sufficient defense, unless the plaintiff proves negligence." Nat. Line Steamship Co. v. Smart. Opinion by Trunkey, J. [Decided Nov. 20, 1884.]
WHEN LIABILITY CEASES
Editor of the Albany Law Journal:
I rise to a question of privilege! I desire to know whether, in this degenerate age, the members of the legal profession have any rights which courts of justice are bound to respect.
It appears to be a modern invention to dispose of legal controversy by ignoring the merits of the case itself, and delivering an elaborate opinion upon the merits or demerits of the counsel by whom it is conducted. It is undoubtedly much easier, in a majority of cases, to dispose of the latter than the former, and therefore not especially remarkable that the practice is rapidly increasing. The average lawyer however is not so avaricious or ambitious for personal distinction as to feel specially flattered by repeated judicial announcements that he is, professionally speaking, an ass, at the uniform expense of his clients, or to crave their continuance in cases where they are no less at his personal expense, by reason of the fact that they are alike unwaranted and unjust.
I am not an advocate of the practice of reviewing adverse decisions by "swearing at the court," and do do not design in the present instance to take any new departure in that behalf, but after mature deliberation I have reached the conclusion that the time has arrived, when from a personal stand point, I should "have leave to kick for being kicked," and be permitted to enter a firm and vigorous protest against the more recent application of this modern invention in the disposition by the "court of last resort" of a cause professionally conducted by myself as counsel for the unsuccessful litigant.
I refer to the case of Arnold v. Parmalee, 97 N. Y. 652, which in the matter of inaccuracy of statement, novelty of doctrine, and manifest injustice to counsel and client, may be regarded as entirely sui generis, even in this era of multitudinous and diversified adjudication. It also graphically illustrates with what wonderful facility in modern practice a case of considerable intrinsic importance, pecuniarily and otherwise, may be disposed of by a single stroke of the judicial guillotino, simultaneously beheading both counsel and client.
I rest my defense solely upon the record presented to the court, and a correct statement of the case as disolosed thereby.
Upon the pleadings the plaintiff's cause of action stood admitted. Various affirmative matters of aldefense were interposed. Certain "questions of fact," pertaining or supposed to pertain to those defenses were settled to be submitted to a jury, and were thus tried at Circuit. The result of the answers of the jury was such as to defeat the plaintiff's right to recover. Subsequently the cause came on for hearing at the Special Term. It is true that this court was held by a justice of the Supreme Court other than the
justice who presided on the trial at Circuit, the latter having in the meantime ceased to be a member of the court. The practice adopted at the Special Term is not without precedent in similar reported cases in the court of chancery, and inasmuch as it was entirely satisfactory to the court at Special Term, no question as to its regularity or propriety remained to perplex any court of review in their subsequent consideration of the case. As against the admitted cause of action of the plaintiff, the defendants interposed the findings of the jury upon the aforesaid questions of fact. Thereupon the plaintiff's counsel presented to the court a case, duly settled, containing a complete record of the evidence and proceedings on the trial of these questions of fact before the jury at Circuit, in connection with notice of motion for a new trial of those questions of fact, based upon such record of the evidence and proceedings on the former trial. Had this motion been entertained and passed upon by the trial court, it is conceded by the Court of Appeals, that it must have resulted in favor of the plaintiff, the record disclosing errors of law which could not be ignored or successfully defended in that tribunal.
But the court at Special Term, as it had an unquestioned right to do, against any protest or objection from either party, decided to pursue a different course, and in the language of his final decision filed by the learned justice, to hear, try and determine the whole cause and all questions of fact or law involved therein.'
There was not the semblance of a "question of law" before the court, aside from those presented by the case as arising upon exceptions taken to the rulings of the Circuit judge in the admission or rejection of evidence, and the entire case as presented to the trial judge consisted of the plaintiff's admitted cause of action, the findings of the jury and the record of proceedings of the trial at Circuit. And upon this case in its entirity, the cause was argued and submitted by the counsel for the respective parties. The "trial" was necessarily limited to the argument by counsel and decision by the court of the questions of fact and questions of law presented by this record. It was thus considered by the trial court, and a decision rendered adversely to the plaintiff, although in some respects variant from the findings of the jury upon matters of fact.
Precisely here it is that the opinion adopted by the Court of Appeals attributes the plaintiff's loss of a meritorious case to the stupid blundering or blundering stupidity of his counsel. It is not sufficient grievance, in the judgment of that distinguished tribunal, that the plaintiff's counsel should have been prevented from presenting his "questions of law" in due aud proper form, by means of his motion, but by reason thereof he is to be solemnly adjudged to have absolutely eliminated from the case, prepared for the express purpose of bringing them before the court, every adverse ruling and exception thereto contained therein and indulged in the pleasant and profitable pastime of furnishing ammunition for his adversary.
In the judgment of a lawyer of limited mental calibre it would seem to be quite impossible that the trial judge could thus adopt, for the purposes of a hearing and determination of the cause, the evidence and proceedings on the trial at Circuit, as set forth in the case, without taking them cum onere as to the rulings and exceptions constituting an integral portion thereof. 95 N. Y. 252.
But the assumption of the Court of Appeals that these exceptions were not brought to the attention of or passed upon by the trial court, is in direct contradiction of the record.
I quote from the concluding portion of the opinion of the judge at Special Term. "Some exceptions were
taken upon the trial before the jury to the admission or exclusion of evidence, but none but what may be properly disregarded as not affecting the merits, under section 1005, Code of Civil Procedure."
This statement would seem to indicate that the objections were relied upon by counsel, and considered and passed upon by the trial court, and it is beneath the dignity of a "quibble" to contend that in thus passing upon them that court did not distinctly rule and intend to rule upon all questions raised as to the admission or rejection of evidence, by an express adoption of the rulings of the Circuit judge and reaffirmation of their correctness.
In every tribunal to which the cause has been presented the Special and General Terms of the Supreme Court and the Court of Appeals-these rulings and exceptions have been the subject of discussion by counsel without suggestion from any source that they were not properly before the court for discussion, consideration and determination. Indeed in the last named court there was nothing else in the case, the same General Term which had once set aside similar findings of the jury as quite too absurd to be approved or sanctioned by any court having, as I assume, upon the theory that "two wrongs make a right," indorsed and approved the second edition of the same.
The patriarchal Job was not a not a practitioner in modern courts of justice, and was therefore happily exempt from the additional affliction, consequent upou earnest and zealous, but futile efforts to secure and preserve the rights of litigants in those tribunals. Otherwise his "record" would unquestionably have presented tangible "exceptions "of an unmistakable character. Whether any record of that description however could ever be successfully brought to the attention or within the comprehension of the court, is an inquiry which may properly be left in repose among the other "glorious uncertainties of the law." MYRON H. PECK.
BATAVIA, May 5, 1885.
COURT OF APPEALS DECISIONS.
following decisions were handed down Friday, May 8, 1885:
Judgment affirmed with costs-Joseph Lowery, infant, respondent, v. Manhattan Ry. Co., appellant; Frank Potts, adm'r, respondent, v. William A. Hart and others, appellants; People, respondent, v. Kuickerbocker Ice Co., appellant; Frank L. Pineo, adm'r, respondent, v. N. Y. C. & H. R. R. Co.; Horace K. Thurber and others, appellants, v. William Hughes, respondent; George C. Morris, appellants, v. Mayor, etc., respondent; George Wadsworth, respondent, v. Louisa R. Lyon, appellant; Jefferson Carley, appellant, v. Caroline D. Potts, respondent; Jacob Loril lard, respondent, v. William P. Clyde and another, appellants; Caroline Pope, respondent, v. George W. Mead, impleaded, appellant; Philip H. Read, appellant, v. Lewis R. Stegman, sheriff, etc., respondent.
-Judgment reversed, new trial granted, costs to abide the event-Mary Marsh, respondent, v. William R. McNair, appellant; Theodore Brinkerhoff and others, appellants, v. Henry Bostwick and others, respondents. Judgment of Common Pleas reversed, that of Marine Court affirmed, with costs, upon the ground that no exceptions appear in the case-George Lane et al., appellants, v. Thomas E. Arnold and others, respondents.
Ordered, that this court take a recess from this date to Monday, the first day of June, 1885, at ten o'clock A. M., at the town hall, in the village of Saratoga Springs, then to proceed with the call of the calendar. Tuesday, June 2 and 16, will be motion days.
The Albany Law Journal.
ALBANY, MAY 23, 1885.
ity, and is based upon superficial knowledge of insufficient facts." "In this we heartily," but not "humbly agree. These newspapers are hard to suit. We agree with George William Curtis who says, in the “Easy Chair:” "The impression which the newspaper often leaves upon the observer is that it has not a high respect for the public. It often toadies and deprecates and flatters, indeed, but its extravagance betrays it. There is a certain tone of infallibility also, which is entertaining, and which seems to spring from the same conviction which led the older sinner to advise the younger, 'My boy, you will have to lie a good deal, but remember to lie steadily and consistently.'"
UDGE VAN BRUNT has punished the juror, Munsell, in the Short case, by sentence to imprisonment for thirty days, and a fine of $250. His offense consisted in taking a private view of the premises in question. With their usual rashness, the newspapers which abused the jury for the acquittal, now abuse the judge for punishing this juror. We labor under the disadvantage of not being so wise as the newspapers, whose writers proThe newspapers do not confine their attacks to livnounce these ex cathedra opinions. It may be that "John Judge Van Brunt has exceeded the bounds of mod-ing judges, but they even defame the dead. Judge Folger, in reference to his opinion in the celeSwinton's Paper" contains an infamous attack on
eration and discretion, but the juror was certainly
brated case of Lange v. Benedict, 73 N. Y. 12, in an
elsewhere approved. It is hardly necessary for us to vindicate the dead judge against this loathsome
aspersion. But it is well to speak of it to illustrate
but a contempt of court like this in question
The Central Law Journal has been telling some truths about life insurance, although perhaps it puts things rather too strongly in saying that "American life insurance is a rank fraud." The Western Insurance Review hereupon says: "Now the Central Law Journal people do not believe the above, but they are determined to be deemed cheeky and original No other journal with a reputable prestige was ever reckless enough to say that American life insurance is a rank fraud. Therefore we confess that the statement is both original and cheeky, notwithstanding the circumstance that the brilliant source of that pungent originality has been careful to cover his valuable life with a wholesome amount of American life insurance. But then, as we have intimated, the Central Law Journal is not particular what it attacks when it wants advertising. It is liable to say almost any thing that is erratic, but it means no real malice. Why, one of these days, when it feels peculiarly neglected, it will shoot off a dynamite petard to the effect that the American judiciary is a rank fraud." It is not for us to compose such strifes. But we do not think that it is any argument against the Journal that its editor has his life insured. We have had ours insured, and have
lost money by bogus companies, and every lawyer knows what a fraud much of American life insurance is, and how scandalously our common law helps it along with its doctrine of warranty and the like. And years ago we dwelt on the abuses of this system.
built, he should not do the work without reward, provided such is the understanding. If however as the defendant here claimed, the architect volunteered his services, with the chances of future employment, it would be different. But it cannot be held that in either case such preliminary work can be measured by estimates of the costs of the architect's projected building. No man in his senses will determine on going forward with a factory until he has ascertained, not only just what he wants, but what it will cost. It would always be for an architect's interest, in such a case as this, if the plaintiffs are correct, to make the plan as exelec-pensive as possible, instead of bringing it within bounds. And until not only plans but specifications are drawn up showing the kind, quality, and amount of every class of materials to be used, it would be impossible to count the cost, or obtain the intelligent views of builders and mechanics. From plans alone the quality of the material could not be got at. They would not show the kind or grade of brick, stone, wood, or iron work, which might be of expensive or cheap quality. Such plans as were shown here would go but a little way in showing the character of the building in any respect, and by themselves could be of no avail except as determining the appearance of the front, and the floor arrangements, neither of which have been settled finally. These papers cannot be deemed to have any intrinsic value, and they could not avail defendant in their unfinished condition. They only claim plaintiffs could have would be for such time as was actually spent in their work, with the fair understanding that they should be paid for so much as they did, or with such circumstances as would
Legislatures are bad enough, but Mr. W. H. Lyon, of Dakota, has bit upon something worse. He calls it "The Dakota Plan," and to use his words, "The leading idea of the plan is that all extraordinary appropriations and all laws of general interest to the public should be referred to the people themselves to pass upon at annual or perhaps biennial tions. "" Perhaps this would do in Dakota, where Mr. Lyon assures us the "citizens are the most intelligent of any State in the Union or any country in the world," but we fear it would not answer elsewhere. We commend this scheme to the consideration of Mr. Sterne. It certainly has the merit of novelty, and as its projector says, "should not be rejected because it is new.' But it would be a bonanza for the newspapers and the stump-orators.
Judges are differently treated in different communities, and by different classes. The venerable and learned judge Cooley is dropped at the caprice or passion of the electors the bar would have kept him. On the other hand ex-Judge Erskine, of the Georgia Federal Circuits, is the recipient of a double and perhaps unprecedented honor on his voluntary retirement. Appointed by President Johnson, at a time when it was always a disgrace for a southern citizen to accept Federal office, and almost a crime to be a Republican there, he, a Republican, acted so uprightly and impartially, and exhib-compel defendant to the duty of so understanding; but no custom of architects can be received to fix it on any such basis as is here set up. It is impossible in reason that it can be assumed as having such a proportion of value to the complete plans and specifications and superintendence of a building during erection. Such a custom, if it prevails, can bind no one who is not made in some way aware of and assenting to it. It is too unreasonable to stand alone. It would put every employer at the mercy of an architect's extravagance in taste and license of guessing at estimates which have nothing to measure them."
ited such learning and industry, that the lawyers of the Northern District, without regard to politics, procured his portrait, for the Atlanta courtroom, on his resignation, and now a similar honor is conferred by those of Savannah. Any true lawyer would deem such a dual distinction worth the labor of a life. We have spoken of Judge Erskine before. We need only now refer to his case as an exception to the rule of the prophet at home. As a poet unknown to fame says:
"Tis sweet to be beloved, I know,
NOTES OF CASES.
N Scott v. Maier, Michigan Supreme Court, April 29, 1885, 23 N. W. Rep. 218, it was held that an architect who volunteers his services with the chances of future employment cannot recover for preliminary sketches which are not accepted, on the basis of a percentage on the probable cost of the building. The court said: "There is some reason for claiming that if a man is employed to make preliminary sketches to enable a land-owner to determine what sort of building he may profitably erect, and in what style and of what material it should be
In State v. Board of Education, Wisconsin Supreme Court, April 28, 1885, 23 N. W. Rep. 102, it was held that a regulation that each scholar, when returning to school after recess, shall bring into the school-room a stick of wood for the fire is not "needful " for the government, good order, and efficiency of the schools, and a scholar cannot be suspended for a refusal to comply with such regulation. The court said: "One can but express surprise that any intelligent teacher, or any intelligent board of education should suffer such a case as this to reach the courts
* * * In contesting the sufficiency of this return, the learned counsel for the relator insists that the rule