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There are some sixty cases in the volume, and as the United States Reports do not come within the purview of our Digest of State Reports, we notice here some of the more important cases.
The first case in the volume, — Carter v. Townsend, - holds that a lien for supplies, furnished in Virginia to a vessel owned in Maine, is not lost by taking a bill of an exchange drawn on one of the owners, notwithstanding that by the lar of Maine the taking of a bill of exchange is presumptive extinguishment of a debt.
The only question which seems to have occupied the attention of the learned judge in the case was the effect of the bill of exchange. It seems to have been assumed, that, had the bill not been given, there could be no doubt as to the attaching of the lien, though there appears to have been no evidence that the supplies could not be procured except on the credit of the vessel. Undoubtedly at the time the decision was rendered, the profession generally did not suppose that such evidence was necessary to support a lien for supplies. But whether since the decision of Pratt v. Reed, 19 How. 359, the learned judge would not feel himself at liberty to decide the case as he did in 1858, may perhaps be doubted. In the similar case of The Sarah Starr, 1 Sprague, 458, which was a suit by a material-man, Judge Sprague decided against the lien, feeling compelled thereto by Pratt v. Reed; but he refused to condemn the plaintiff in costs, substantially on the ground that the decision of the Supreme Court had been a judicial reversal of the law, as previously understood, and that the plaintiff was justified in supposing, when he commenced his suit, that he had a righteous claim.
In two other cases, — Palmer v. Elliot, p. 63, and Baker v. Draper, p. 420,- It is held, that the presumption of payment, which the law of Maine and Massachusetts attach to the giving of negotiable paper for a pre-existing debt, was rebutted by the circumstances of the cases.
In the case of United States v. Williams, p. 5, the court decided that Circuit Courts have power to grant new trials after conviction in cases of felony. There is no doubt that such is the general if not universal practice in this country; but it is worthy of note, that the case of Reg. v. Scaife, 2 Den. C. C. 281; s.c. 17 Q. B. 238, which is relied on to show that new trials are granted in like cases in England, has been recently disapproved by the Judicial Committee of the Privy Council in the case of Reg. v. Bertrand, Law Rep. 1 P. C. 520. Two of the judges, Sir John T. Coleridge and Sir William Erle, who decided the case of Reg. v. Scaife, sat as members of the Privy Council at the hearing of Reg. F. Bertrand, and concurred in the result, Sir John T. Coleridge delivering the opinion. It must therefore be taken as the law of England to-day, that a ner trial cannot be granted after a conviction of felony.
In United States v. Holmes, p. 98, the nature of the insanity which will exempt from criminal liability is laid down in terms employed in many of the adjudged cases, but which will hardly satisfy the doctors.
In Trott v. City Ins. Co., p. 439, it is held, that a by-law which provided that any difference which might arise in relation to any loss sustained or alleged to be sustained by a party insured should be determined by referees; and that in case any suit should be commenced without an offer of reference, the claim of the party so commencing the suit should be released and discharged, was void
tenancy at will by notice to quit, assumpsit for use and occupation lies against the tenant if he holds over. Were the question a new one, there might perhaps be a doubt whether any distinction could be properly taken between the position of a tenant at will, after the expiration of the time required to be allowed by a notice to quit, and that of a tenant for years after expiration of his term. We suppose it is settled, however, that the tenant at will holding over after notice becomes a trespasser, and it would appear from such cases as Ibbs v. Richardson, 9 Ad. & El. 849, that the landlord may waive the tort and sue on an implied contract.
We may further mention Detroit & Milwaukee R.R. Co. v. Van Steinburg, p. 99, as containing a discussion as to when negligence is a question of law and when of fact.
Probably the case of the most local interest is The People v. The Auditor General, p. 161, arising out of an act of the legislature providing for the appointment of a Professor of Homeopathy in Michigan University, with which one is led to suppose the learned regents of that institution did not fancy compliance beyond the letter of the law.
For other cases, see 3 Am. Law Rev., pp. 381, 581.
The custom of citing cases by the volume and page of the reports only, and not by name, in this series, is to be regretted.
North Carolina Reports. Cases argued and determined in the Supreme Court of
North Carolina. June Term, 1868, and January Term, 1869. By S. F. PHILLIPS, Reporter. Vol. LXIII., No. 1. Raleigh: Nichols & Gorman. 1869.
We have here, we suppose, half of the next forthcoming volume of North Carolina Reports. The practice of indicating the volumes of reports by the name of the State instead of the name of the reporter, which is coming into general use throughout the Union, is hereafter to be adopted in North Carolins.
As we include only entire volumes in the State Digest, we notice here some of the more valuable cases.
In an action on the case for refusing to deliver $360 gold coin deposited with the defendant, the measure of damage is the value of the gold in currency. - Gibson v. Groner, p. 10. See Gibson v, Smith, p. 103.
On a trial for murder, the fact of killing with a deadly weapon being admitted or proved, the burden of showing that the killing was not murder, but manslaughter or justifiable homicide, is on the prisoner. – State v. Willis, p. 26.
The act making negroes incompetent witnesses is void, as repugnant to the State Constitution. - State v. Underwood, p. 98.
The North Carolina Stay Law is unconstitutional, as impairing the obligation of contracts. - Jacobs v. Smallwood, p. 112.
An ordinance repealing a previously enacted Statute of Amnesty is void, as an ex post facto law. — State v. Keith, p. 140.
A testator made a will in 1855 by which he gave to W. T. Redmond “the sum of $2,000 to be put at interest for the purpose of giving him a classical education. It is my desire that said $2,000 shall be thus expended, and that he shall take