« ΠροηγούμενηΣυνέχεια »
complainant's guilt, and that his right of challenge was denied ; and that the presentment did not specify time, place or circumstances of the offence alleged, or the names of witnesses to be called to prove the allegations. The case was fully argued by distinguished counsel on both sides, and the court, JAMESON, J., commenting with much severity on the proceedings of the ecclesiastical court, held all the objections in the bill to be good, and awarded an injunction. His judgment was delivered orally in advance of a full opinion to be filed hereafter), and is reported in the Chicago Legal News for August 7th, from which we extract the following synopsis :
1. If an ecclesiastical tribunal proceeds to try an offender who is a church member, according to the canons of the church, a civil court has no right to interfere; but if such ecclesiastical tribunal transgress such canons, and thereby injure the temporal rights of the accused, the civil courts will, upon proper application, interfere.
2. An ecclesiastical court in this country is nothing more than a voluntary association of individuals.
3. Under canon 20 of the Protestant Episcopal Church, in the Diocese of Illinois, the bishop can only institute proceedings for the trial of a person for offences, on information coming to him from one of three sources—from a majority of the vestry, from three presbyters of the church, or from public rumor, and it is not sufficient for him to say that he has been “credibly informed,” &c.
4. Under the canons the bishop should select eight persons, out of whom the accused has the right to select five, and also to twenty days' notice from the bishop in which to make the selection.
5. The accused has the right of challenge.
6. When the members of an ecclesiastical tribunal have no right to proceed at all, it will be presumed that they intend all that may befall, even the worst consequences, under the canons of the church.
7. The presentment should state the offence clearly, giving time and place, and it is insufficient to state that the accused has omitted the word regeneration in the infant baptism service on divers occasions within the past two years, without specifying the time, or place, or circumstances, or names of the witnesses who were to be called against the accused.
8. The wrongful deposition of a minister of the gospel, who is receiving a salary, is such an injury to his temporal rights, as will call for interference by a court of equity.
It is understood that the case goes by appeal to the Supreme Court of Illinois.
INCOME TAX- MEANING OF THE WORD “PERSON”-SHAKER COMMUNITY. Commissioner Delano has decided that the word person in the Internal Revenue Acts, for the purpose of taxation on incomes, includes an association or community holding its property in common, like the Shaker Community at New Lebanon, Ohio. This is a community of forty-six covenanting male members, making return through one Boyd, of the entire income of the community, and claiming to deduct $1000 for each member. The commissioner holds that this is not correct; that the community is a person within the acts, and is entitled to only one deduction of $1000. This is in reversal of a previous decision of Commissioner Lewis, but is supported by a late decision of
the Supreme Court of Ohio, which held, in Boyd v. Lackey et al. (not yet reported), that the individual members of this community are not tax-payers within the statute requiring a petition for highway to be signed by a majority of resident freehold tax-payers. The letter of Commissioner Delano will be found in full in 10 Int. Rev. Record 39.
ADMIRALTY-COLLISION ON THE HIGH SEAS BETWEEN STEAMER AND SAILING VESSEL CARRYING FORBIDDEN LIGHT-APPLICATION OF STATUTORY RULES WHERE FOREIGN VESSEL IS CONCERNED. Sears et al. v. Steamer Scotia, in the District Court of the United States for the Southern District of New York (Feb. 1869), was a libel by the owners of the American ship Berkshire, against the British steamer Scotia, for loss by collision. It appeared that about two o'clock in the morning of April 11th 1867, in the Atlantic Ocean, the Berkshire was sailing, with the wind somewhat free, on a course, as set forth in the libel, S. E. by E. half E., and the Scotia was steering 1. by N. half N. The Berkshire discovered a white light on her port bow four or five miles off, which seemed to come directly towards the Berkshire, whose helm was put to starboard. The Scotia had all her regulation lights set, and on discovering a white light on her port bow apparently about five miles off, ported her helm and kept on, taking the light to be a steamer. The light appeared to recede gradually from the Scotia's bow until very shortly before the collision, when it began to close in, and the Scotia at once reversed her engines, but too late to avoid the collision.
The Berkshire claimed that the Scotia was in fault as she had time to avoid the Berkshire, but put her helm to port knowing that the Berkshire had the wind free, and attempted to cross her bows. The Scotia claimed that the course of the Berkshire was more southerly than was alleged in the libel, and that she was in fault because she had only a white light carried low down on her anchor stock, thereby violating the laws both of England and America, and leading the Scotia to suppose it was a steamer too far off for her colored lights to be visible, and that the Scotia's action in porting her helm, under the circumstances, was in accordance with the laws of both England and America.
The new and important question involved was, whether the Scotia, being a British vessel, could set up as a defence the violation by the Berkshire of the statutes of the United States. The court, BLATCHFORD, J., held that it could not; that a foreign vessel cannot set up against an American vessel a statute which is not mutually binding, and which would not therefore be available in favor of the American vessel against the foreigner; citing The Dumfries, 1 Swa. 63; The Zollverein, Id. 96; Cope v. Dougherty, 4 K. and J. 367, 389, 390, s. c. on appeal, 2 De G. and J. 614; The Saxonia, 1 Lush. 410; The Chancellor, 4 Law Times N. S. 627; and Williams v. Gutch, 14 Moore P. C. C. 202.
The claim on the part of the Scotia that the statute of the United States should be enforced in her favor because the rules prescribed by the British and American statutes are the same, was held not to be tenable. The court said that the practice of the English courts to enforce the English rules against vessels of other nations was founded upon the Queen's orders in Council, under the authority of sect. 58 of the Merchant Shipping Amendment Act of July 29th 1862, which
provides that whenever it is made to appear to her Majesty that the government of any foreign country is willing that the regulations shall apply to the ships of such country when beyond the limits of British jurisdiction, her Majesty may by order in Council so direct, and the passage of the Act of Congress of April 29th 1864, prescribing rules for American vessels substantially identical with the British, was properly taken as an expression of willingness on the part of the American government that the British rules should be so applied. The Act of Congress, however, contains no such authority for courts of the United States to apply the rules prescribed by it either in favor or against foreign vessels.
“ The merits of the collision in this case,” said BLATCHFORD, J., “must therefore be adjudicated according to the rules of navigation and usages of the sea which usually prevailed and were customarily observed at the time and place of the collision, among the ships which navigated the waters where the collision took place : The Fyenoord, 1 Swabey 374, 377. I can have no hesitation in saying what such rules and usages were, when I find them to have been before that time adopted, with such identity, by nearly all the nations whose ships usually navigated the waters where this collision took place, embracing, among others, the United States, Great Britain, France, Spain, Prussia, Russia, Norway, Sweden, Belgium, Bremen, Denmark, Hamburg, Lubec, Hanover, Schleswig and the Netherlands. I rest my decision on that ground, and not on any municipal statute or statutes, as such, of the United States, or of Great Britain, or of both countries. I have not been referred to, por have I met with, any case in the United States in which this question is discussed or decided. I must, therefore, resolve it on principle. But I have no hesitation in saying, that the result I have arrived at is very satisfactory, as bearing on the interests of commerce and the safety of human life, in substituting fixed written rules observed by all the maritime nations, for those which, it is no disparagement to say, were not as definite or certain, or as universally recognised.”
On this ground therefore the court held that the Berkshire was in fault, both in carrying a white light and in not carrying colored lights. The answer, however, the court said must be amended so as to set up properly the fact that the Berkshire did not, as to lights, comply with the rules of navigation and the usages of the sea, customarily observed, at the time and place of the collision, by the vessels which navigated the waters where the collision took place. On the answer being so amended, the libel would be dismissed with costs.
ADMIRALTY-DAMAGES TO SEAMAN FOR NEGLECT WHILE SICK. Tomlinson v. Hewett
, in the United States District Court for California, was a libel for damages against the master of a vessel. Libellant was a seaman, and while on board ship was taken with small pox. The captain on assurances that he had made arrangements for his care, induced the seaman to go in a small boat to a town some fifteen miles up the river. On arriving there he found not only no such arrangements made, but no physician living there, and he had only $17 given him by the captain. He accordingly returned, but was not allowed to come aboard the vessel, and finally went in the small boat six miles down the
river, and then rode on horseback twenty miles to another town, where he arrived so exhausted that he fell from his horse and lay on the beach for thirty-six hours before he received aid. The town to which he went was distant twenty-six miles by water from the place where libellant was put out of the vessel, and was in the direct line of the voyage ; but the captain refused to take him there on board the vessel. HOFFMAN, J , in giving judgment, said that the fact of the disease being malignant and infectious was good reason why the master should put the seaman ashore at the earliest moment consistent with his receiving proper care ; but was no justification of the course pursued, especially as the captain knew that at a port, only twenty-six miles distant, and to which the vessel was to sail the next day, proper medical attention and care could be secured. Judgment was therefore entered for libellant for $2500.
CONSTITUTION OF NEW YORK-THE JUDICIARY. The new constitution, framed by the convention last year, will be submitted to the direct vote of the people for adoption or rejection in November. The Judiciary article, which is submitted to a separate vote, provides for the establishment of a Court of Appeals, to consist of seven judges, holding their office for fourteen years.
The other courts remain very much as they now are, except that the terms of the judges are lengthened to fourteen years. This is a great improvement on the present wretched system, under which the highest court in the state is liable to change one-half its members yearly. The most notable feature, however, in the new constitution is a provision that in 1873 the question shall be submitted to a vote of the people whether the judges shall not thereafter be appointed by the governor. The results of making the judiciary elective, have, it thus seems, become so apparent, that the state which first made the fatal blunder is beginning to look to its correction. We regret that the convention, certainly one of the ablest and most laborious that ever sat in that state, proceeded so timidly, and did not at once, and without hesitation, declare for a return to the system of appointment to judicial office for good behavior—the only system by which the bench can permanently retain its independence or its respectability.
J. T. M.
ABSTRACTS OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF NEW YORK.'
SUPREME COURT OF PENNSYLVANIA.?
SUPREME COURT OF VERMONT.3
ATTORNEY. See Debtor and Creditor.
I From Hon. 0. L. Barbour, Reporter ; to appear in vol. 53 of his Reports. 2 From P. Frazer Smith, Esq., Reporter; to appear in 58 Pa. Rep. From W. G. Veazey, Esq., Reporter ; to appear in 41 Vt. Rep.
BILLS AND NOTES. Guaranty of.-A note drawn by Henninger and for his accommodation with an endorsement in the name of Noll, was also endorsed with a guaranty by Eyer and was discounted by a bank. The bank sued Eyer. Held, that the court erred in charging that it was incumbent on the bank to prove affirmatively that the contract of guaranty was made with them : The Northumberland County Bank v. Eyer, 58 Penna.
As Noll endorsed for the accommodation of Henninger and the bank was the first holder for value, the law implied that the guaranty was made to them: Id.
The guaranty was not distinguishable from a general letter of credit, on which an action may be maintained in the name of the person who gives credit on the faith of it: Id.
A guaranty is not assignable so as to enable the assignee to sue on it in his own name : Id.
CONFLICT OF LAWS. Debt contracted in Foreign Country. A debt contracted in a foreign country, in the absence of a contrary understanding, is payable there and in the legal currency of that country: Benners v. Clemens, 58 Penna.
A judgment here, for such debt, should be in amount the value of gold in legal tender notes : Id. The lex loci contractus must control in interpreting such contract: Id.
CONSTITUTIONAL LAW. Obligation of Contracts.—When town authorities have taken the land of an individual for the purposes of a public highway, and have paid the proprietor therefor, the right to the easement becomes a vested right in the public; and the public having received the land, and the proprietor the compensation, it becomes a fixed contract between them, and the provision of the Constitution of the United States declaring " that no state shall pass any law impairing the obligation of contracts” applies: The People ex rel. Failing v. The Commissioners of Highways of the town of Palatine, 3 Barb.
After land taken for a road has been paid for by the public, it cannot be taken from the public and donated to the former owner without any consideration paid therefor, by an act of the legislature purporting to reduce the width of the highway: Id.
CONTRACT. In Restraint of Trade.-Contracts restraining the exercise of a trade, &c., in particular localities, when there is reasonable ground for the restriction, are valid : McClurg's Appeal, 58 Penna.
An agreement for a valuable consideration not to practise medicine within 12 miles of a particular locality is not unreasonable, and the exercise of the profession within the prescribed limit may be restrained by injunction : la.
The court will not inquire into the adequacy of the consideration : Id.
CORPORATION. Dissolution.—Where the complaint, in an action by the people