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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 bere 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, 45%, 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,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 new 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 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. Richardsex, 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 Carolina.
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. — Slate 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
events now make it seem probable that the next attempt to create a life-peerage will not be unsuccessful.
The first volume of Mr. Finlason's edition of Reeves's History of the English Law is noticed with praise. When this history is completed, we hope to give it a notice somewhat commensurate with its merits.
Article Fourth gives a picture of an “Old Circuit Leader," one John Jones, of Ystrad, in Wales, whose career serves to point the usual moral of the evanescence of a lawyer's famę.
Next is an article on the salaries of Irish law officers, which is followed by an Essay on the Real Estates Intestacy Bill, brought into Parliament by Mr. Locke King. This is a bill providing that real estate shall pass on the death of the owner intestate to his next of kin in like manner as his personal estate. The writer of the article, who is in favor of the principle of the bill, quotes approvingly from Austin : “This needless distinction between real and personal property, which is one of the largest that the law of England contains, is one prolific source of the unrivalled intricacy of the system, and of its matchless confusion and obscurity.” The Essay is very interesting, and well written.
The Seventh Article, entitled “Suggestions on an Improved System of Police for the Metropolis,” may be commended to those who are now busying themselves in matters concerning the police of our large cities.
Then follow two articles, one on the “ Election Inquiries," and a second on “ Coroner's Election Law.”
The head of “Indexing and Digesting” drew our attention as being of those who have to labor much at such work, but we were disappointed; it is merely a review of a Scotch and an Irish Digest.
A review of Lord Campbell's Lives of Lord Lyndhurst and Lord Brougham comes next. Certainly no man's “ violent dealing" ever" came down upon his own pate," as Lord Campbell's has done. His vilification of Lords Lyndhurst and Brougham has been received with a howl of contempt, and has, temporarily at any rate, ruined the character of his victims. The unanimity of condemnation is surprising. Judas and Nero have found their advocates, and we wonder that no one has arisen to defend Lord Campbell. This Review gives an amusing account of “ How Lord Brougham called Lord St. Leonards a bug ;” a word, by the way, much more offensive in British than in American parlance. An article on the Site of the New Law Courts, and a brief notice on the First Report of the Judicature Commission, finish the articles in this number. There are also notices of several new books.
The Western Jurist. For April, 1869.
This number contains an article on the fundamental notions involved in the idea of a written constitution, and the usual collection of cases.
The American Law Register. For March, April, and May, 1869.
The March number has a leading article on the disbarring of Mr. Bradley by the Supreme Court of the District of Columbia, and the matter is again recurred to in the number for May. This latter number also contains an article on the Judicial System of Scotland, while in the April number, Judge Redfield furnishes an Essay on “ Legal Tender Notes before the Supreme Court."