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lution, of a dilemma, not anticipated by the
legislators, but the thought will naturally
suggest itself, at least to those of a convivial
turn, that an orphan in a State like Georgia
possesses ' some advantages and privilegeSv
not enjoyed by an ordinary common law

At the recent annual meeting of the Kan-
sas State Bar Association, held in Topeka,
January 9, 1889, among other interesting
contributions, an addre$s was delivered by
Judge W. A. Johnston, in which he advo-
cated a constitutional convention, and an^
entire reorganization of the» judicial^ system^

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No. 4

of that State, claiming that the business of
the supreme court was such as to demand
seyen judges instead of three, and that there
should be a limit placed upon cases, appeal-
able to that court. The fact that within re-
cent times, several cases involving as small
* amounts as twenty-five ^nd fourteen cents,
came into that court, seems to justify the
position taken by Judge Johnston.

The next national reform is said to be a
reform of the ballot. Though, after each
general election, for the past decade, at least,
a spasm of political virtue has seized the
public, and the politicians, with refer-
ence to a reconstruction of election laws
— having as its chief purpose to render
fraud impossible — it is only within re-
cent months that any substantial step has
been taken in that direction. A new election
law was passed last year in Massachusetts,
but which does not go into effect until No-
Tembet next. It seems also that a simi-
lar law is being tried in ^Louisville. It is an
adoption of what is known as the Australian
system of voting, and is, with a slight excep-
tion, the English and Canadian law. Its
eatures seem to the American voter, un-
used to BO much machinery, quite complex
and almost impracticable, but we are assured
by those, familiar with its operations, that it
is not only simple in enforcement, but that it
ikccomplishes everything for which it was in-
tended. Without going into an extended
exposition of its features, it aims to provide
for an official and absolutely secret ballot, so
marked and identified as to be incapable of
counterfeit, for orderly elections free from
deetioiieering and bulldozing at the polls,
and to prevent bribery, though as to the lat-
ter, it is said, not to be so effective as the
English amendment, compelling the publica-
tion, under oath, after election, of a complete
statement of all the expenditures made. It
seems to foe admitted by all, who have made
the question a study, that a secret ballot offi-
cially provided and marked is the first essen-
tial for the prevention of frauds at elections.
At this time and naturally enough in view
of the last election, the question is being ex-
tensively agitated in New York State, follow-
ing upon the suggestions, in that direction
made by Gov. Hill, in his recent message. It

is a matter of public congratulation that the
popular feeling in favor of this reform, in
that great State, and the promise of its early
enactment, is seconded in many of the
States, by a marked effort to correct the
abuses of the ballot.


The Supreme Court of the United States,
in a very elaborate opinion by Mr. Justice
Miller, has declared constitutional the act
Minnesota, March 7, 1881, providing for as-
signments for benefit of creditors, in the
case of Denny v. Bennett, 9 S. C. Rep. 134.
The act in question provided that a debtor
may assign all his property for the equal
benefit of all his creditors, who shall file re-
leases of their claims, etc. The court says :

The question of the invalidity of this Minnesota
statute, as it relates to the rights of creditors, is an
interesting one. The argument in favor of that prop-
osition is that it impairs the obligation of contracts; it
may be conceded that, so far as an attempt might be
made to apply this statute to contracts in existence
before it was enacted, it would be liable to the objec-
tion raised, and therefore in such a case of no eftect.
But the doctrine has been long settled that statutes
limiting the right of the creditor to enforce his claims
against the property of the debtor, which are in ex-
istence at the time the contracts are made, are not
void, but are within the legislative power of the States
where the property and the debtor are to be found.
The courts of the country abound in decisions of this
class, exempting property from execution and attach-
ment, no limit having been fixed to the amount— pro-
viding for a valuation at which alone, or generally
two -thirds of which, the property can be brought to a
forced sale to discharge the debt— granting stays of
execution after Judgment, and in numerous ways
holding that, as to contracts made after the passage of
such laws, the legislative enactments regulating the
rights of the creditors in the enforcement of their
claims are valid. (Citing Edwards v. Kearzy, d5 U. S.
695.) • • • The power is conceded, when not for-
bidden by the statutes of a State, to a failing debtor to
make a general assifirnment of his property for the
benefit of his creditors, as this one does. It is further
admitted that in such an assignment, if there be noth-
ing fraudulent otherwise, he can prefer some creditors
over others, and that he can secure to some payment
in full while he leaves others who will certainly get
nothing out of his estate. When this is done, the
creditors who are not provided for in the assignment
are left in a worse condition than they are where it is
done under the present law, because in the first In-
stance they would certainly get nothing out of the
debtor's property, though they would retain a right
to proceed against him by a Judgment and execution;
while in the present case they have the option of pur-
suing that course, or of coming In with the other cred-
itors, executing releases, and obtaining their share of
the property assigned. Here, instead of naming th*
Digitizeo kjy ^^^^^.^ j...^


Vol. 28.



preferred creditors, the assignor gives his property to
:all who will execute a release of their claims against
him. Nobody is required by the statute to do so un-
less he thinks it is to his interest. The creditor who
executes such a release gets his share of the property
assigned, while the one who does not receives nothing,
unless there may be a surplus left after the payment
of the releasors, but he is not hindered or delayed in
obtaining a Judgment against the debtor, or in levying
cipon any other property, if such can be found, not
•conveyed by the instrument, or upon any afterwards
acquired by the debtor. The latter remains liable,
notwithstanding this statute and this assignment, as
<he always was, for the debt of the non-assenting cred-
itor. It is not easy, then, to see how this statute can
i>e more complained of as impairing the obligation of
-contracts than the statutes of exemption which we
have already mentioned, and the principles which lie
at the foundation of all voluntary assignments for the
benefit of creditors with preference that exhaust the
fund assigned. But it is said that this statute of Min-
nesota is void under the principles laid down by this
• court in the cases of Sturges v. Crowninshield, 4
Wheat. 122; Ogden v. Saunders, 12 Wheat. 218; Bald*
win V. Hale, 1 Wall. 228; and Gilman v. Lockwood, 4
Wall. 409. The proposition lying at the foundation of
«11 these decisions is that a statute of a State, being
without force In any other State, cannot discharge a
debtor from a debt held by a citizen of such other
State. Any one who will take the trouble to examine
all these cases will perceive that the objection to the
extraterritorial operation of a State insolvent law is
that it cannot, like the bankrupt law passed by con-
gress under its constitutional grant of power, release
all debtors from the obligation of the debt. The au-
thority to deal with the property of the debtor within
the State, so far as it does not impair the obligation of
<K>ntract8, is conceded; but the power to release him,
which is one of the usual elements of all bankrupt
laws, does not belong to the legislature, where the
■creditor is not within the control of the court. The
Minnesota statute makes no provision for any such re-
lease. Harlan, J., dissents.

Legislators, as well as lawyers, will be
interested in the case of People ex re/. Hart
V. McElroy, 40 N. W. Rep. 750, lately de-
cided by the Supreme Coart of Michigan. It
was there held that the courts may look be-
hind the enrollment and into the legislative
journals to ascertain whether an act {was
passed in accordance with the constitutional
requirements. The court says :

If the act, as in this case, is authenticated by the
signature of the presiding officers of both houses, ap-
proved by the governor, and certified in the published
laws by the secretary of State, it is declared hy the
xsourts of last resort in many of the States that the
court will not go behind these certificates, and search
further to ascertain whether such facts existed as gave
these officers constitutional warrant for their action.
State V. Swift, 10 Nev. 176; Sherman v. Story, 80 Cal.
256; Bender v. State, 58 Ind. 254; Pangbom v. Young,
82N. J. Law, 41; Duncombev. Prindle, 12 Iowa, 1;
Eld V. Gorham, 20 Conn. 8; People v. Devlin, 88 N. T.
^09. The courts of some of the States have taken cog-
loizanoe of the journals, and looked into them, for the
J^orpoie of determining ^whether the constitutional

methods have been followed in the passage of laws.
But it is held, in all the cases, that the presumption is
always strong that the legislature has not violated the
constitution In the passage of an act, duly afuthenti-
cated, as stated above; and that the proof furnished
by the Journals must be clear, in order to overcome
this presumption. Larrison v. Railroad Co., 77 HI. 11;
Worthen V. Badgett, 82 Ark. 496. • • I am of the opin-
ion that the right of the courts to look into the Journals
for certain purposes, should be sustained, rather than
to hold that the enrollment and authentication of the
act, as enrolled by the proper officers, is conclusive.
The courts certainly ought to have the right to open
the Journals of the legislature to ascertain whether the
fraud or mistake of some clerk or employee of the
legislature, or its committees, has not Imposed upon
the statute-books a different law from the one actually
passed by the legislature, or to determine whether the
requisite number of votes have been given under the
constitution to pass a law, when the constitution re-
quires that the ayes and noes shall be entered upon
such Journals. It must have been intended by the
framers of that instrument, on such requirement, that
the courts should look into the Journals to determine
whether the ayes were sufficient to pass a bill in either
house as recorded in the Journals. How far the Jour-
nals may be examined, to impeach duly authenticated
acts of the legislature, it is not necessary here to de-
termine. We certainly cannot act upon anything not
found in the Journals, nor can we presume that any
requirement of the constitution has not been fulfilled,
unless the fact appears affirmatively in such Journals;
and every intendment la to be made in favor of the
constitutionality of the passage of the act.

An interesting question of exemption was
decided by the Supreme Court of California,
in the case of Cowen v. Their Creditors, 19
Pac. Rep. 755. A firm, composed of two
members, filed a petition asking to be ad-
judged insolvents and discharged from their
debts. All the property scheduled was part-
nership property and all the debts partner-
ship liabilities. Petititioners applied to the
court, and claim now to be entitled to their
exemption. The objection is made that no
exemption can be allowed out of partnership
property. The court, after citing the statute
(§ 690, Code Civ. Proc), says:

If the petitioner had been the sole owner of the
property in question, there can be no doubt that it
would have been exempt from execution, and the duty
of the court to set it apart for his use and benefit.
Did the fact that it was partnership property change
the rule in this regard, and make it subject to seizure
and sale by creditors? The authorities upon the ques-
tion are sharply conflicting, and a majority of the cases
hold that partnership property is not exempt. See
Tbomp. Homest. & Ex. S§ 194-216, where the cases are
very fully collected and reviewed. See also Freem.
Ex'ns (2d ed.) § 221. The leading case in favor of the
proposition that partnership property is exempt is
Stewart v. Brown, 87 N. Y. 850. And see Skinner v.
Shannon, 44 Mich. 80; Bums v. Harris, 67 K. C. 140;
Blauchard v. Paschal, 68 <j^a. 82. On the other side the
leading case seems to be Pond v. Kimball, 101 Mass.
105. It appears to us that the statute is intended to '



No. «

apply only to the case of a single and individual debtor.
The exemption which it gives is strictly personal.
Thb statute speaks in the singular number throughout,""
unless, possibly, the clause as to fishermen be an ex.
ceptlon. Its apparent object is to secure to the debtor
the means of supporting himself and his family, by
following his trade or handicraft, with tools belonging
to himself. It also provides that his family are to be
secured in the enjoyment of certain indispensable
comforts and necessaries out of his property. But
property belonging to the firm cannot be said to belong
to either partner as his separate property. He has no
exclusive interest in it. It belongs as much to his
partner as it does to him, and cannot, in whole or in
part, be appropriated (so long as it remains undivided)
to the benefit of his family. It may be wholly con*
tingent and uncertain whether any of it will belong to
him on the winding up of the business and the settle-
ment of his accounts with the firm. The exemption,
in our opinion, is several, and not Joint. It applies to
the debtor in the singular number, and is personal and
individual only. And see Gaylord v. Inhoft, 26 Ohio
St. 817; Ouptil v. McFee, 9 ^an. 80; Giovanni v. Bank,
6& Ala. 805; Baker v. Sheehan, 29 Hinn. 285; State v.
Spencer, 64 Mo. 855.

The CJourt of Appeals of New York, Id
reversing the case of Kernochan v. Murray,
18 N. E. Rep. 868, pass upon the question
as to whether a guaranty by one selling stock
that the purchaser shall receive dividends
thereon equal to a certain percentage, and
that he will make good any deficiency, is
terminated by the guarantor's death. In
deciding the question in the negative, the
court says :

We think the Judgment below proceeds upon a mis-
construction of the contract of guaranty. The guar-
anty did not in terms purport to bind the executors
or administrators of De Mill & Co. But it is a pre-
sumption of law, in the absence of ezpcess words, that
the parties to a contract intend to bind, not only
themselves, but their personal representatives. « * «
There are cases cited holding that a continuing guar-
anty of advances to be made to a third party, in the
absence of any express provisions, is revoked as to
subsequent advances by the death of the guarantor,
and notice. Coulthart v. Clementson, 5 Q. B. Div. 42;
Harriss v. Fawcett, L. B. 15 Eq. 811. These cases
stand upon a perfectly equitable principal, each ad-
vance constituting a separate consideration. But a
guaranty creating a continuing pecuniary obligation,
the consideration for wliich is given once for all, is
very different, and it would be very Inequitable to
hold that it was terminated by the death of the guar-
antor, unless this intention is plainly in the guaranty
itself. See UojCs v. Harper, 16 Ch. Div. 290. The
Judgment in tliis case cannot, therefore, we think, be
supported on the theory that the guaranty by fair in-
tendment was limited to the lives of the guarantors.
Equally unfounded we think is the claim of the de-
fendants that De Mill & Co. were sureties, and for
that reason their obligation terminated on the death.
Getty V. Binsse, 49 N. Y. 885. Their underUking was
original, and not collateral. They entered Into the
guaranty for their own benefit, upon a consideration
moving to them as principals.

In the pase of Edwards v. Geo. Knapp, lO
S. W. Rep. 54, the Supreme CJourt of Mis-
souri decide a question of libel and slander,,
heretofore unsettled in the law of that State,
or at least upon both sides of which there
has been direct precedent. The question*
was as to whether, in an action for libel,
where defendant pleads truth in justification,
of a charge imputing a crime to plaintiff, he
must prove the charge ^^ beyond a reasonable
doubt," or whether a preponderance of evi^
dence is sufficient. The case of Polston v.
See, 54 Mo. 291, a decision rendered by a
divided court, adopted the rule requiring:
proof beyond a reasonable doubt. The case
of Marshall v. Insurance Co., 43 Mo. 586,.
took the opposite ground. The court here
carefully reviews the authorities, and show
that Polston v. See was decided on the En-
glish theory, viz : If, upon a trial of the plea
of justification in a slander suit, when a
felony is imputed, the issue was found* for
defendant, the plaintiff was thereupon held
to answer for the felony, without any further
accusation, the verdict being held equivalent
to an indictment, and the intervention of a
grand jury therefore unnecessary. And as
the reason of the rule has no application
here, the English cases establishing it do not
amount to persuasive authority, and for the
status of the question we are remitted to rea-
son, and to what has been held by the courts
of this country. At the time the case of
Polston v. See was decided, a similar rule
was laid down in the States of Iowa and
Indiana, but since then it has been directly
repudiated in Iowa, and in effect in Indiana.
See Riley v. Norton, 65 Iowa, 306 ; Ins. Co.
V. Jachinchen, 110 Ind. 59; Ellis v. Bruzzell,.
60 Me. 209 ; Peoples v. Evening News, 57
Mich. 11. The court concludes:

From what has been said it will be seen that the
English authorities referred to, in support of the rale
in section 426 of Greenleaf , sifpra, have no application
here, and that the Iowa cases cited in support of it
have been expressly overruled, and the Indiana cases
in effect overruled. We therefore conclude that the
rule stated in Marshall v. Insurance Co., 48 Mo. suprur
that in civil cases the rights of the parties are to be
determined by the preponderance of the evidence is
the correct one, both on principle and authority, and
that the case of Polston v. See, suprat in so far as it
holds that in action of slander or libel, when a crime i»
imputed y and the defendant Justifles, he must intro-
duce evidence sustaining his plea beyond a reasonable
doubt, ought no longer to be followed, and it is hereby:

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Vol. 28.



Offiobrs of manicipal corpotations will
learn somethiDg in the case of Robinson y.
Rolir, 40 N. W. Rep. 668, recently decided
by the Supreme Court of Wisconsin. There
the board of street commissioners of the city
of Watertown, after making futile effort by
resolution and advertisement for proposals
for bids, to repair a bridge, undertook to do
the work themselves under plans and specifi-
cations adopted by them, and appointed a
superintendent of the work. While it was
being done, plaintiff was injured by the fall
of a derrick. It was held by the court that
though the board, when they determined upon
the work, and adopted the plans and specifica-
tions of it, acted as public officers, exercising
judicial and legislative power, and are
not amenable to any one except the public
for any errors, negligence or mere misfea-
sance in the matters within their jurisdiction.
But when, after adopting the plans and speci-
fications, they undertake to carry them out
practically, and to do the Work themselves,
and employ agents and servants to execute
the plans and specifications manually, then,
if they are acting as officers at all, they are
merely ministerial officers, and not judicial
or legislative, and, according to the same au-
thorities, are liable to third persons for their
negligence or misfeasance, or, as the author-
ities say, as public officers they acted in a
ministerial capacity, and are therefore liable.

An interesting question is involved in the
case of Piano Manufacturing Co. v. Burrows,
19 Pac. Rep. 809, lately decided by the Su-
preme Court of Kansas. The facts are these :
The plaintiff sold a twine binder harvester to
A, who gave to plaintiff his three notes there-
for. A afterwards sells the machine to B,
who in consideration therefor orally promised
A to assume payment of the notes. Two of
these were not paid, and plaintiff brought
suit against both A and B. The court here
lay down the following propositions, applica-
ble to the above facts : All actions must be
prosecuted in the name of the real party in
interest, and, therefore, whenever a contract
is made between two persons for the benefit
of a third, the latter is the proper person to
commence aiid maintain action. Brenner v.
Luth, 28 Kan. 581. And generally it makes
no difference whether the contract is in writ-
ing or only in parol. Grant v. Pendery, 15

Kan. 236. Such a promise, it is true is, in
one sense, a promise to pay the debt of an-
other. It is the promise to pay the pre-ex-
existing debt of the promisee to the third
person. But that is not all, nor is it the
principal thing. The principal thing is that
the promisor shall pay his own debt created
at the time of making the promise, not to the
promisee, it is true, but to a third person for
the benefit of the promisee. Such a contract
or promise is not within the statute of frauds.
Lee V. Newman, 55 Miss. 365 ; Seaman v.
Hasbrouck, 35 Barb. 151 ; Stanha v. Green-
wood, 28 Minn. 521. The court concludes:

Under this contract the company, and not A yrtm to
receive the purchase money, and the company, and
not A, was therefore the real party in interest;
and under the statutes of this State, and the decisions
of this court, the company, and not A would be the
proper party to sue for the recovery of the purchase
price of the harvester. Stephen Burrows was the
primary debtor, and the Piano Manufacturing Com-
pany was the primary creditor; and Stephen Burrows,
as such primary debtor, should not be allowed to
escape from the fulfillment of his contract to pay his
own debt, merely because he put bis promise in the
form of a promise to pay the debt of another. Nor
should he be allowed to multiply suits by compelling
the Piano Manufacturing Company to sue A, and A to
sue him. Nor has he any right to require that the
Piano Manufacturing Company should first elect to
treat the debt due from A to the Piano Manufacturing
Company as extinguished before commencing an ac-
tion against him to recover the debt he owes. Horton,
C. J., dissented.

The Supreme Court of Illinois, in the re-
cent case of McDonald v. People, 18 N. E.
Rep. 817, took occasion to rebuke the State's
attorney who prosecuted below. It was a
criminal prosecution for conspiracy to de-
fraud Cook county by the presentation and
collection of bills for repairs on a county
building, alleged to be fraudulent. It ap-
pears that the prosecuting attorney, in his
opening statement to the Jury, being allowed
full scope by the judge, went out of his way
to speak of matters not within the record,
but which were intended to have effect upon
the jury, unfavorable to defendant. He was
allowed to talk about the ^'boodle prosecu-
tions in New York city," to discuss and ex-
plain to the jury the meaning of an ^'excep-
tion" entered by counsel for defendant,
stating that the purpose was to fill the record
with errors. He also informed the jury that
the law had been so changed that any de-
fendant might testify in his own behalf, and
that defendants had appU$,^, f^r a ^ change^crfT [^



No. *

venue to another county. Other matters
wholly foreign were stated ftnd argued to the
jury, and f uU liberty was given counsel for
the people by the court, to make any stAte-
ment he saw proper to make, whether it had
any legitimate bearing on the case or not.
The court says:

Much latitude is always allowed counsel in the state-

Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 22 of 151)