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or deciding is lodged in a special tribunal, the remedy designated can alone be pursued, and no action therefor can be maintained in the Court of Claims.
The detention of a vessel in port by the President, under the Neutrality Laws, is not a taking of private property for public purposes within the meaning of the Constitution. Graham v. The United States, p. 327.
In Gilmore v. The United States, p. 364, it is held, that an officer in the army is entitled to an allowance equal to the pay of a private soldier for each servant, and not merely to eleven dollars a month, as the War Department ruled during the war. This decision, if sustained by the Supreme Court, will require a large disbursement from the Government to meet the claims of officers.
In an Appendix is a collection of the dissenting and concurring opinions in cases contained in the first volume of the Court of Claims Reports, which were omitted by the reporters, under the impression that they were required only to publish the “ decisions."
Though questions similar to those contained in this volume are not likely to arise in suits between private persons, yet the discussions on the law of express and implied contracts, with which it is filled, may often be found useful.
Not including a few unimportant decisions on the liability of disbursing-officers for public moneys stolen from them, or captured by the enemy, and which turn entirely on facts, there are forty-five decisions in this volume, and of these, in nineteen, including almost all the important cases, one or more judges dissented. The court is not any too strong when it is unanimous; and such a difference of opinion weakens most unfortunately the influence and authority of this important national tribunal.
United States District Court Reports. Second Circuit. By ROBERT D. BENE
DICT. Vol. I. No. 2. New York: Baker, Voorhis, & Company. 1868.
The first number of this volume was noticed in the Law Review for October (3 Am. Law Rev. 146), and we then commended it heartily to the profession. The present number contains cases decided by Judges Benedict, Shipman, and Blatchford, from January, 1867, to and including June of the same year. All of these cases are of importance and interest.
On p. 125, it is declared to be the duty of a collector of internal revenue, after seizing property as liable to forfeiture, to turn it over to the law officers of the Government forthwith, that legal proceedings may be commenced without delay; and where a collector claimed the cost of keeping property for thirtyseven days, the court allowed only one day's costs.
In Atkins v. The Fibre Disintegrating Co., p. 118, the 11th section of the Judiciary Act, which provides that no “civil suit" shall be brought against an inhabitant of the United States by an original process, in any other district than that whereof he is an inhabitant, is held by Judge Benedict to be inapplicable to proceedings in admiralty ; following in this respect the view expressed in 2 Parsons' Maritime Law, 686, and differing from the opinions of Judge Hoffman and Judge Shipman.
In The Circassian, p. 128, is an interesting discussion of the rights and duties of State and United States officers when process issues against a vessel which is already in the custody of a court of competent jurisdiction. On p. 156, we are informed, in a note, that the decision of Judge Sutherland (50 Barb. 490), which holds that a State law can authorize proceedings in rem in cases where, under the rules of the Supreme Court, admiralty cannot exercise jurisdiction, has been overruled by the Court of Appeals.
Wright v. The Norwich Transportation Co., p. 156, is an interesting case under the Act of 1851, limiting the liability of ship owners. There are also cases relating to charter-parties, liability of tow-boats, material-men, collision, salvage, bottomry, and wages of seamen.
In our notice of the preceding number, we spoke of Mr. Benedict's ability as a reporter, and of the excellence of his work. This ability and excellence are .. fully sustained in the present number; and we are glad to see that suits in rem are properly designated.
Reports of Cases Argued and Determined in the Supreme Judicial Court of Mas-.
sachusetts. ALBERT G. BROWNE, Jr., Reporter. Volume I., being Massachusetts Reports, Volume XCVII. Boston: H. O. Houghton & Co. 1868.
MASSACHUSETTS has at length wisely followed the example of other States. Chapter 239 of the Statutes of 1867 enacts that “ The volumes of Reports of the decisions of the Supreme Judicial Court next succeeding the series edited by Charles Allen, shall be styled · Massachusetts Reports,' without the name of the reporter thereof added thereto, and the numbering of the several volumes shall be determined by reckoning all the previous volumes of Reports as · Massachusetts Reports;'"and we are glad to see that the act has been strictly followed, and that on the back of the volume appears only “ Massachusetts Reports, 97.” In too many instances, the name of the State and of the reporter both appear on the back of Reports, with a separate number attached to each, e.g., “Vermont Reports, Vol. 28. Williams, Vol. 2," which has led to much confusion and diversity in citation.
The previous volumes of reports are: Massachusetts Reports, 17 vols. ; Pickering's Reports, 24 vols.; Metcalf's Reports, 13 vols. ; Cushing's Reports, 12 vols.; Gray's Reports, 16 vols.; Allen's Reports, 14 vols. ; total, 96 vols. The 15th and 16th of Gray's Reports, and the 14th of Allen's Reports, yet remain to be published.
We are much pleased with this first product of Mr. Browne's labors. A long continued and uniform practice has settled the general style, and even the details, of the method of reporting in Massachusetts, and Mr. Browne has carried it out with success. He has a peculiarly happy faculty in arranging and stating the facts of a case. He reports arguments somewhat more fully than some of his predecessors; but of this we are not disposed to complain. The only fault we find is the lack of cross references in the index.
The hundred and sixty-six cases in the volume are mostly short, and are not, on the whole, particularly interesting: we have placed the more important in our Digest.
Day v. Bardwell, p. 246, is an important decision on the United States Bankrupt Law, in which it is held that that law did not supersede the State Insolvent Law until June 1, 1867; the opinion of the court seems to us very conclusive, but we understand that the case is to be carried to Washington.
The strong State Rights feeling which has always existed in New England, though kept in abeyance by the recent course of political events, is strikingly marked by the restiveness of the Massachusetts courts under the Stamp Act, and has finally culminated in the decision, that the prohibition of the use of unstamped documents in evidence applies only to proceedings in the United States courts. Carpenter v. Snelling, p. 452.
There are two important insurance cases: one, that a policy on liquors illegally kept for sale is void (Kelly v. Home Ins. Co., p. 268); and the other, that a policy containing a proviso that it shall be void if the building insured is put to an unlawful use, is avoided by such use, though without the knowledge of the owner and insurer. — Kelly v. Worcester Ins. Co., p. 284.
There are several cases arising out of the relation of husband and wife.
Crehore v. Crehore, p. 330, seems to have settled the law, that, to enable a man to avoid his marriage on the ground of prenuptial unchastity on the part of his wife, he must show both that he believed her chaste at the time of marriage, and also that at that time she was in fact with child. Unless both of these are proved, the marriage will not be dissolved.
In Southwick v. Southwick, p. 327, it is held, that refusal for five years consecutively, by a wife of sexual intercourse with her husband, though ủnjustified by considerations of health, is not desertion. We confess this is not so clear to us as it seemed to be to the court. Could a wife, under such circumstances, maintain a libel against her husband on the ground of his adultery ?
In Bailey v. Bailey there is given for, we believe, the first time in Massachusetts, a definition of the “cruelty" which will authorize a divorce. A majority of the court held that the cruelty must be such conduct or neglect as to cause injury to life, limb, or health, or a danger of such injury, or a reasonable apprehension of such danger, should the parties continue to live together.
Commonwealth v. Gammon, p. 547, decides that the law giving married women control of their property does not affect the legal presumptions applicable, in criminal proceedings, to their acts. See also Comm. v. Wood, p. 225.
In Fall River National Bank v. Buffinton, p. 498, will be found an admirable exposition of a point in the law of estoppel.
The cases against towns for injuries caused by snow and ice make their appearance as usual, and the court seems sorely exercised in devising subtle distinctions under the troublesome statute. It now appears, that, if a man breaks his leg by falling on “a smooth and even surface of ice," he cannot recover damages; but that, if the ice is in a rough and uneven condition," the town is liable.—Luther v. City of Worcester, p. 268.
There are two cases under the Sunday law, which we commend to the attention of legislators.
On Saturday, Nov. 25, 1864, there was a storm, which threw upon a beach near Scituate harbor a large quantity of seaweed. On the following Sunday, two farmers, who had a license from the owner of the beach to gather the seaweed, which was a valuable manure, came on to the beach, which was at a considerable distance from any house or public road, with an ox cart. They loaded the cart with seaweed and then drove it, not to their farm, which was at some distance, but only above high-water mark, and there discharged the load. “The tide was low at the time, and there was a fresh breeze blowing, in a direction which, on
other occasions, had frequently caused seaweed to float away from the beach when the tide rose, and be wholly lost, or else conveyed to places where the defendants could not obtain it." The defendants were convicted of violating the Lord's Day Act, and took exceptions. These exceptions were overruled. The court admit the difficulty of defining what constitutes a work of necessity. “If a vessel had been wrecked upon the beach, it would have been lawful to work on Sunday for the preservation of property which might be lost by delay. But if the fish in the bay or the birds on the shore happened to be uncommonly abundant on the Lord's day, it is equally clear that it would furnish no excuse for fishing or shooting on that day. How it would be if a whale happened to be stranded on the shore, we need not determine.” — Commonwealth v. Sampson, p. 407.
The crime, in this case, was perpetrated at ten o'clock in the evening. It is unfortunate for the criminals that the old Puritan custom, by which, as the phrase used to be, “the Sabbath abated” at sunset, has not been retained in Massachusetts.
In Commonwealth v. Josselyn, p. 411, the evidence is not fully given; but the facts would seem to be, that the defendant, a shoemaker by trade, was cultivating his garden by moonlight on Saturday evening, and that, when he left off work on that evening, “ a few hills remained unfinished and in very bad condition, and suffering for want of hoeing.” “ The only witness for the Government testified, that, about eight o'clock on the morning of Sunday, he saw the defendant hoeing for about an hour" in his garden. The defendant was convicted, and his exceptions were overruled.
We have no fault to find with the judgment of the court in these cases ; but it is difficult to restrain a movement of indignation, that a law under which such prosecutions are possible still stands on the statute book.
Reports of Cases in Law and Equity, determined in the Supreme Court of the
State of Iowa. By EDWARD H. Stiles, Reporter. Vol. II., being Vol. XXIII. of the series. Ottumwa : Published by the Reporter. Sold by Miles & Co., Desmoines. 1868...
The Reports of several of the Western States are noticeably good. One does not, perhaps, find in the opinions of the judges much of that flavor of legal learning which is so pleasant in the decisions of some longer established courts. While conservative New Jersey furnishes a quiet Southern exposure for the ripening of lawyers of the Old School, in the busy West, justice is administered by men more intent on adapting the law to modern requirements than on standing in the ancient ways. And it is well that this is so. No branch of knowledge affords more instances than the law, of what a blessing to mankind it is that men begin life ignorant. Every one knows that it often happens, that, from historical causes, analogous cases are governed by dissimilar rules, and that forms which have lost their significance by lapse of time remain as technicalities. One who is familiar with these nice distinctions has no interest in their reform, even if he does not become prejudiced in their favor. But when, after barely three years' study, a young man finds himself at once in active practice, to simplify rules, to destroy anomalies, to make partial analogies complete, is his only safeguard. We might point to Judge Walker's admirable work on American Law as a typical Western book. It goes at once to the root of the matter. What is the