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New Books and New Editions.

SMITH ON CHATTEL MORTGAGES AND CONDITIONAL SALES IN THE STATE OF NEW YORK, 2d EDITION, BY P. C. DUGAN, ESQ., OF THE ALBANY BAR. The second edition of this work was made necessary by the decisions rendered since the last edition and by the many changes in the statute law. The frequency in these days of conditional sale of property to secure payment has largely increased the interest in this branch of the law. The edition begins with the chapter on the “Instrument.' The subsequent chapters are on the filing and refiling of chattel mortgages, the validity of chattel mortgages, the disposition and sale of the mortgaged property, assignment of mortgages of ships and vessels, and the supplement contains chapters on the same subjects except that Chapter VI, which deals with contracts on conditional sale of personal property. The well-known ability and learning of the editor of the second edition makes the second appearance of this work, perhaps, more important than the first edition, and the general care which was used in the preparation of the second edition makes the work up to date in all respects. Published by Matthew Bender, 511 and 513 Broadway, Albany, N. Y.

JEWETT'S MANUAL FOR ELECTION OFFICERS AND VOTERS OF THE STATE OF NEW YORK, BY F. G. JEWETT, OF THE SECRETARY OF STATE OFFICE THIRD EDITION.

The changes in the election laws made by the last Legislature made the appearance of this work a necessity and practically a useful remedy and the method of handling the subject in the past has been repeated in the third edition. The scope of the work in this edition has been greatly enlarged and the work most clearly show the laws of the State in general with the special elections laws in relation to the cities of New York and Brooklyn. The changes in the Senate and Assembly districts in number and in territory also made the publication of this work a practical benefit to lawyers as well as to officers of elections and perhaps of political organizations, and the directions for voting contained in the work will be found of great aid to the instructors of voters at the coming election. The work is complete in every respect and contains a full practical index. The maps showing the senatorial and assembly districts will be of considerable value to those who use such a work. Published by Matthew Bender, 511 & 513 Broadway, Albany, N. Y.

THE EXCISE AND HOTEL LAWS OF THE STATE OF NEW YORK, BY ROBERT C. CUMMING AND FRANK B. GILBERT, OF THE STATUTORY REVISION COM

MISSION.

This is a treatises of 253 pages on this important subject. The work begins with the statutory con

struction law with the amendments of the Legislature of 1895. Chapter 2 deals with the Excise Law, which is excellently annotated with citations at the end of every section, and shows clearly the amendments made by the last Legislature and with the new sections. Chapter 3 deals with special acts relative to Excise Commissioners and Excise moneys, and gives a special law relating to powers and pledges for liquor sold, and the Civil Damage Act and is followed by a chapter on the Public Officer's Law. Chapter 6 deals with Code Provisions, while Chapter 7 is on local statutes relating to excise, with a special act relating to the State and counties. Chapter 8 deals with United States statutes relating to wholesale and retail liquor dealers, and Chapter 9 is in relation to rights and liabilities to innkeepers. After this comes the chapter with forms on this subject, and an excellent index completes the volume. Published by Matthew Bender, 511 & 513 Broadway, Albany, N. Y.

COMMENTARIES OF THE LAW OF CORPORATIONS. BY SEYMOUR D. THOMPSON.

Vol. 4. We have already carefully reviewed the first three volums of this excellent and tremendous work, and have also published a most careful and learned review of the books already published by John F. Dillon, of New York city. It seems almost unnecessary to repeat the encomiums of praise which have already been accorded to this publication except, perhaps, to note that the same excellence of literary and scientific research and knowledge is evinced as in the former three volumes we have seen. Vol. 4 begins with chapter 86, on the rights of membership, and continues with the rights to inspect books and papers, other rights and remedies, remedies of shareholders in equity, injunctions in aid of such remedies, and when such remedies extend to winding up and when not, further as to the release of parties to such actions, pleadings in such actions, varies matters of practice in such actions. Title 8 treats of ministerial officers and changes, and power of the president and other officers of the corporation, the cashier of a bank, the teller and other officers. Title 9 deals with formal execution of corporate contracts, and deals with negotiable instruments, parol contracts and implied contracts. Title 10 is about notices, estoppel ratification, while title 11 contains chapters on franchises, privileges and exemptions. Title 12 deals with corporate powers and the doctrine of ultra vires, and has chapters on corporate powers in gene ral, interpretation of charters, financial powers, while chapter 126 deals with powers relating to negotiable papers. The enormity of the work and the manner in which it deals with this large and increasing branch of law makes the work equal to any of the standard commentaries of this or any other era. The true value of the work will have its lasting effect on the law and lawyer of this and future generations.

Published by Bancroft Whitney Co., San Francisco, Cal.

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The Albany Law Journal.

ALBANY, AUGUST 24, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL.

All letters relating to advertisements, subscriptions, or other

business matters, should be addressed to THE ALBANY LAW
JOURNAL COMPANY.]

"IT

portionate to their injury to the State in preventing companies from doing business within our boundaries ? Will it not require the use of a flood of gold to secure there repeal? Gentlemen of the legislature, in time you may kill the goose that lays the golden egg.

Commenting on the Draft Companies Act Amendment Bill which Judge Dillon writes of the Law Times says :

Everyone will hail with satisfaction the report of this committee and its draft of a bill for amending the companies acts, and most will think that a very prudent middle course has been taken between the opposing dangers of leaving too much to the prudence of investors, and of laying too heavy burdens on the backs of directors. A few matters appear to call for comment.

The first clause, which makes the certificate of incorporation conclusive for all purposes, is of more importance than is generally known. For many years it was thought that associations could be formed into companies at common law, and then registered under Part VII of the Companies Act 1862. As this course involved a considerable saving of stamp duty, it was largely adopted down to 1890 when the board of trade refused any longer to allow it, a ruling which was upheld in the Court of Appeal in Ex parte Johnston (1891), 2 Q. B. 598. This case shows that such an association is one which cannot be registered, and accordingly the certificate of incorporation, which only deals with the forms and details of registration (see National Debenture Corporation [1891], 2 Ch. at 517), is no protection to the great number of companies already registered in this manner, and if the question were raised it would probably be held that they are unincorporated bodies, and that the shareholders' liability is unlimited.

T must be remembered that the majority of companies are honestly formed for carrying on a legitimate, though it may be a speculative enterprise or business, and the business is conducted with honesty and reasonable ability and judgment." Such is part of the report of the committee appointed to make recommendations and changes in the English Companies Acts, and if all corporations were formed honestly and conducted without any endeavor to take advantage of the public there would be little necessity to have any of the present relations, regulations and restrictions in the corporation laws of this State. There is little doubt, as Judge Dillon suggests in his letter published in these columns, that many of the present severe provisions of the corporation laws of this State should be modified to the end that a larger number of business interests may be induced to begin their legal life and existence under our State laws. How far we can loosen the restrictions which we now have is a difficult matter to determine, but the changes should at least attain the results which Judge Dillon suggests. After all, when we realize the practical results of the provisions of the New York Statutes in regard to corporate companies, we must appreciate that the seemingly severe prohibitions and restrictions which we have referred to, are partly only imaginative and that is only necessary to resort to subterfuges to evade laws which are shibboleths of regulations rather than The clauses of the bill which, however, arrest actualities. Corporations are formed under most attention are those which deal with the the laws of other States and carry on business prospectus and the first allotment. No one here with enormous capital stock much of will dispute the advantage of compelling fuller which only represents the dreams of the incor- disclosure of preliminary contracts, of the porators. Are these restrictions in our statutes profits of vendors, of the amount of promoters' in many cases the result of the work of over- remuneration, and preliminary expenses; but anxious patriots in the legislature who were not the result of a failure to make proper disclosure properly persuaded that their views and fears is dealt with in an unsatisfactory manner. The were wrong? Are these practical benefits pro-matters to be disclosed are in some cases of VOL. 52-No. 8. 8.11

great importance, in others they are or may be trival, e. g., the actual number of shares taken by directors, or the address of auditors; but the remedy is the same in every case: "In the event of non-compliance with any of the requirements of this section with respect to a prospectus, any person aggrieved shall be entitled to compensation from any director, etc." Here is a splendid opening for litigation. Who is a person aggrieved? Prima facie no doubt a person who has applied for shares on the faith of the prospectus; but will the clause also extend to purchasers of shares or others indirectly aggrieved? Again, will it give relief against loss where the non-compliance was really immaterial? And for what is the compensation? Shall the smallest omission of any matter required to be stated give a right to every subscriber to have all his loss made good to him, although arising from something wholly unconnected with the omission?

So far the Bill seems to lay too great a responsibility on directors, but, on the other hand, the exceptions in clause 15, sub-sect. (a) and (b) of sect. 4 will open a means of evading the salutary provisions of the Act. Several of the most important particulars will not require to be disclosed more than one year after the formation of the company, nor need contracts made more than one year before the issue of the prospectus be set forth. If a dishonest trader wishes to put his business before the public without giving proper particulars, he can easily form it into a private company first, and, after waiting for a little over a year (during which time he will, no doubt, have paid a good dividend), he can offer the whole to the public, concealing the particulars of the transactions relating to the formation of the company.

will lose the protection intended for them. It seems imperative that some provision should be made for dealing with issues of capital other than the first where they amount to as much as, or more, than the amount for the time being issued.

The repeal of sect. 25 of the Companies Act 1867 will be received with great satisfaction by most people. But it would be well to declare expressly what the position will be of persons who now hold shares on which they are liable, in the event of a liquidation, to pay the whole amount in cash because no contract has been filed. If they are freed from this liability the creditors of the company may be injured; if not freed, their case will be a hard one.

The provisions as to disclosure of the amount of shares issued as fully or in part paid which are to take the place of this section would be sufficient, were it not that an easy method of evasion presents itself. A company may contract to purchase property or pay for services with cash, upon the understanding that the vendor or employe subscribes for an equal nominal value of shares; and this may be used to defeat the clauses relating to a minimum subscription. If the owner of a gold mine wishes to sell it for £100,000, and the prospectus of a company with a capital of £150,000 states that the minimum subscription will be £50,000, and that the property will be purchased for £100,000 in cash or shares at the option of the directors, and upon opening the letters of application it is found that only £10,000 is subscribed for, there is nothing to prevent complacent directors from agreeing the purchase price at £55,000 in shares and £45,000 in cash, out of which latter the vendor will subscribe and pay for £40,000 of shares, making up the required minimum subscription, but leaving only £5,000 working capital.

No apology seems necessary for pointing out these means of "slipping out of" the bill, for If a there is still time to stop up the gaps, and it is to be hoped that pains will be taken to do so.

In like manner the excellent provisions restraining the directors from going to allotment or commencing business until a certain minimum of capital has been subscribed and in part paid-up, and giving the members at the statutory meeting a right to information on some important point, can be easily evaded. company be first registered with a small capital (say 100), and all this be subscribed, and perhaps fully paid, it will be free, after holding the statutory meeting, to increase the capital to any extent, and to offer this to the public, who

One other point requires notice. It is proposed that unregistered mortgages shall not be valid as against creditors or the liquidator. There is much in favor of this, but it may work

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great hardship on a purchaser of a mortgage or attention. This was in the famous "Sunday debenture not duly registered, and will make | Car" case, decided in 1865 in Philadelphia.

it necessary for purchasers to make inquiry before completing the purchase, thus checking the negotiability of such securities.

On the whole, however, the bill, if it becomes law, should do much to dissipate the evil odor into which the practice of company formation has come.

The London Law Magazine says: "It will be remembered that an Irishman, named Cleary, and his family, most cruelly burnt the wife of the former to death, under the belief that she was a witch, and that so soon as the victim was consumed the real wife would appear at the door of the cabin riding on a white horse. The man has just been sentenced at the Tipperary Assizes in Clonmell to penal servitude for twenty years, the jury having mercifully found him guilty of manslaughter only. The learned judge, Mr. Justice O'Brien, expressed surprise at the degree of darkness of mind, moral ruin, and superstition existing in the nineteenth century. Yet these are the people whom we are told are capable of exercising the parliamen

tary franchise."

On Monday, August 19, 1895, ex-Justice William Strong, of the Supreme Court of the United States, died at Lake Minnewaska, N. Y. William Strong was the son of the Rev. William Lighthouse Strong, and was born in Somers, Tolland county, Conn., May 6, 1808. He was educated at the Plainfield Academy and Yale College, graduating at the age of 20 years. After a brief career as school teacher, he returned to New Haven and graduated from the Law School of Yale. Removing thence to Philadelphia, he was admitted to the bar in 1832. The young lawyer chose Reading, Pa., | for his home, and entered upon the practice of his profession. In 1847, having taken an active interest in politics, he was elected to represent the district in Congress, and served two

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While a member of the Supreme Court of the State, Justice Strong won a reputation for judicial learning that extended far beyond its limits, and when, in 1870, President Grant transmitted his name and that of the late Justice Bradley to the Senate for confirmation as associate justices of the Supreme Court of the United States, there was a very general feeling of satisfaction among the members of his profession. On January 15, 1872, Mr. Justice Strong announced the decision of the court affirming the constitutionality of the legal tender act, and Justice Bradley concurred in a lengthy opinion.

In

But the legal tender question was not the only one of importance growing out of the war in the settlement of which Mr. Justice Strong took a prominent part. The constitutional amendments, intended to crystallize and preserve the results of the war, and the congressional legislation necessary to give these constitutional provisions force and effect, were before the court. In Bigelow v. Forest, Mr. Justice Strong prepared the decision announcing that under the Confiscation Act of July 17, 1862, a decree and sale only established a confiscation during the life of the one for whose offence the land was condemned and sold. Tennessee v. Davis, he delivered the opinion of the court establishing the principle that the judicial power of the United States embraced alike civil and criminal cases arising under the Constitution and the laws of the United States, and that their removal from a State to a federal court was no invasion of State domain and power. In Virginia v. Rives, he also prepared the opinion of the court, holding that the object of the Constitution, which authorized the enactment of statutes for the removal into the federal court of civil suits or prosecutions against any person who was denied, or could not enforce, in State courts any rights secured to him by any law providing for the equal rights of citizens of the United States, was to place the colored race, in respect of civil rights, upon a level with the whites.

In ex parte Virginia, Judge Strong announced the decision of the court that whoever, by virtue of public position under a State government, deprived another of life, liberty,

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or property, without due process of law, or denied or took away the equal protection of the laws, violated the constitutional inhibition; that his act, as such officer, was the act of the State; that power was given to Congress to enforce its provisions by appropriate legislation, and that such legislation must act not upon the abstract thing called the State, but upon the persons who are agents of the State.

is by the political development of many generations of men, and it is not the mere sole creation of the Philadelphia convention.

Mr. Ellis Stevens, in the work before us, treats of that document which goes by the name of The American Constitution, and avoids all side issues. He deals with the making of the constitution, its legislative organism, its legislative powers, points out in what manner its executive is related to the ancient executive of England, discloses the popular feeling of Americans against kingship-an opposition largely due to the fact that the struggle for emancipation had been forced upon them by their sovereign in person and describes the derivation of the American courts from the English colonial courts and judges, and explains, in a very lucid manner, the continuity of our bill of rights in It is always of importance in determining the treatise on an interesting subject, well digested acts of American legislation. An excellent

Justice Strong was designated by the Electoral Commission Act of 1877, as one of the judicial members of the famous tripartite tribunal which passed upon the contested presidential election of 1876. In 1880 Mr. Justice Strong, having reached the age at which retirement from the bench after ten years' service thereon is permitted, retired, and had since made his home in Washington.

value of oneself or of a condition of affairs to secure the opinion of others and to regard their view in passing and forming judgment.

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The Law Magazine, of London, in its review on works called the Sources of the Constitution of the United States," by Ellis Stevens, and "Adoption and Amendment of Constitutions in Europe and America," by Charles Borgeau, shows how our English cousins regard the Constitution of the United States and its history. The Magazine says:

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Mr. Gladstone has observed that "as the British Constitution is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man." There is some truth in this, for the American Constitution, established as a written document by the convention and in circumstances quite unique, has many elements peculiar and characteristic; but it is beginning to be realized that the American Constitution, though possessing elements of novelty, is not after all the new creation that Mr. Gladstone would imply. It is not the original composition of one body of men nor the outcome of one definite epoch. It rests upon very old principles, laboriously worked out by long ages of constitutional struggles; it looks back to the annals of the colonies and of the motherland for its sources and its explanation. The constitution has been made what it

and clearly evolved.

"Mr. Borgeau devotes his work to the process of Constitution-making in those States which admit of an isolated treatment, and render possible the attainment of a general theory. He points out that a constitution is the fundamental law according to which the government of a State is organized and the relations of individuals with society regulated; it may either be a code or a collection of texts promulgated at a certain time by a sovereign authority, or in the second place it may be the result of a series of legislative acts, judicial decisions, precedents and traditions of dissimilar origin and unequal value.

"The English Constitution-the oldest of all constitutions-belongs to the second division. The private law of the United Kingdom is uncodified, and her fundamental law is unwritten. An unwritten constitution does not, as a whole, furnish innovators with a definite concrete point of attack; but as it lies within the ordinary competence of Parliament to increase or diminish it by mere statutes, indirect blows may be aimed at it all the more danganous, because not immediately and generally apparent. Mr. Borgeau directs his study to those countries which may be said to fall within the first division; they are becoming more and more numerous, their public law may be considered apart from the power which creates it, and

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