• The Authority of the "Provisional Court" of Louisiana

      Baldwin, Simeon (1865-01-01)
      In the early part of this Volume (p. 66), a statement was given of the recent organization of a Provisional Court for the state of Louisiana, by authority of the President of the United States. The extent of the jurisdiction thus created, and the validity of the decrees pronounced by Judge PEABODY, under his commission, present questions of novelty as well as interest. Has a judicial or simply a military tribunal been created? Are its judgments of permanent or temporary force ? Are they conclusive upon the rights of parties, or re-examinable by other courts ?
    • The Constitutionality of the Concluding Exemption Clause in the Bankrupt Law

      Baldwin, Simeon (1867-01-01)
      The fourteenth section of the national Bankrupt Law of 1867, after designating the manner in which the title to the bankrupt's property shall be transferred to and vested in his assignee, proceeds to except a number of specified articles from the operation of the assignment, and then makes a further and concluding exemption. in favor of "such other property not included in the foregoing exceptions, as is exempted from levy and sale upon, execution or other process or order of court, by the laws of the state in which the bankrupt had his domicile at the time of the commencement of the proceedings in bankruptcy, to an amount not exceeding that allowed by such state exemption laws in force in the year 1864."
    • Compensation as an Incident of the Right of Eminent Domain

      Rogers, Henry (1879-01-01)
      The right of eminent domain, whereby the State is justified in taking private property for public use, against the owner's consent, has been recognized from early times as a necessary incident of sovereignty. It is an attribute inherent in all governments, one of the jura majestatis, sometimes said to be "the law of the existence of every sovereignty." At this late day, when this right has been so long acquiesced in, there can be no reason for questioning its justice or for extolling its efficacy. The right exists, and the necessity is conceded. Half a century ago, it was said to be too late to set up any barrier to the power. "It has been," says the court, "in constant exercise since the existence of society, and must continue unrestricted so long as society shall last."
    • The Constitutionality of Local Option Laws

      Rogers, Henry (1881-01-01)
      In an article contributed to this journal some time since, the writer, after reviewing the subject somewhat at length, arrived at the conclusion that the local option laws are unconstitutional. The article seems to have been suggested by the efforts that were then being made in the State of Ohio, to induce the legislature of that State to enact a law of this character. The conclusion, as embodied in the writer's words, was as follows: "Whether we look at this question in the light of the overwhelming analogy furnished by the decided weight of judicial authority in this and other States, or whether we confine it to the plain text of the Constitution of Ohio, it seems difficult to reach any conclusion other than that the scheme of local option, as it is now urged upon the legislature and the public of the State, will be found radically and fundamentally defective when brought to the decisive test of judicial scrutiny." We sincerely doubt whether "the decided weight of judicial authority" is quite so "overwhelming" in its character, as the writer seems to have supposed. It certainly is not so "overwhelming," as to render it "difficult to reach any conclusion other than that the scheme" was unconstitutional. The writer has evidently over-estimated his difficulties, and mistaken the weight of authority.
    • Delivery and Acceptance of Deeds

      Rogers, Henry (1881-01-01)
      That the mere signing and sealing of a deed imparts no validity to the instrument is well known, and it is a familiar principle of the law of real property, that delivery of the deed is necessary in order to pass the title from the grantor to the grantee. This principle has been enunciated again and again in most of the States. It is equally familiar law, that the acceptance of the deed by the grantee is as essential as its delivery by the grantor. The title will not pass, unless the grantee has assented to receive the deed. Inasmuch as the deed has no validity until it has been accepted as well as delivered, it is held that the grantee must accept before the rights of third parties have intervened, or the title passes subject to the rights of such parties. To make delivery of the deed, it is not necessary that there should be any particular form or ceremony, nor that the deed should be actually handed over by the grantor to the grantee. The question of delivery is always one as to the intention of the parties. It may be effected by words without acts, or by acts without words, or by both act and words.
    • Powers of Partners - I

      Rogers, Henry (1881-01-01)
      So large a proportion of the business of the world is conducted by means of partnerships, that the law, regulating and governing associations for such purposes, is one of unusual importance, and must continue always to attract careful attention at the hands of lawyers engaged in active practice. Attention has been directed recently in this Journal, in two learned articles, to the law regulatiug the powers and liabilities of surviving partners and of dormant partners; and it is our purpose now to supplement the articles referred to by reviewing the law regulating the powers of partners in general.
    • Local Option – A Rejoinder to Charles R. Grant

      Rogers, Henry (1881-01-01)
      Inasmuch as Mr. Grant has published in this Journal what is termed a "Reply to Henry Wade Rogers, it may not be improper for me to file my "Rejoinder" thereto, and to embody therein the following statement of facts, with which I take final leave, of this subject.
    • Power of Partners - II

      Rogers, Henry (1881-01-01)
      In considering the powers which a partner possessed, it was stated in our former article, that he could make a chattel mortgage to secure a debt due from his firm. It becomes necessary to state, now that we are considering the powers which he does not possess, that he can not mortgage the partnership realty. And it makes no difference that the mortgage was made to secure a pre-existing debt of the firm, contracted within the scope of the partnership business. In the case last cited it was held that, while a mortgage on lands could not be foreclosed as to the interest of any person who had not executed it, or assented to, or ratified it, yet it could be foreclosed as to the interest of the person who executed it, though in executing it he may have used the partnership name, reciting that he was a member of the firm. He could not deny that he had an interest in the firm at the date of the execution of the mortgage. It is also settled that he can not make a chattel mortgage for the purpose of securing his own private or individual debts. And if he makes such a mortgage, the other party will not take, though ignorant at the time of the facts constituting the illegality. It has also been held that one partner can not mortgage his undivided interest in a specific part of the property belonging to the firm.
    • Address of Edward J. Phelps, President of the Association

      Phelps, Edward (1881-01-01)
      GENTLEMEN OF THE ASSOCIATION:-Your Constitution, which requires of your president to " communicate the noteworthy changes in statute law " since our last meeting, has imposed upon me a dry subject, and one I have not found easy to deal with. Only five states (Maryland, Virginia, Louisiana, Iowa, and Kentucky) have been so fortunate as to have escaped a meeting of their legislature during the past year. One other (California) has been happily relieved from the usual consequences of such a session, by its law-makers becoming so deeply involved in controversy among themselves as to be unable to agree upon any other legislation. The modern invention of the " dead-lock" is not without its advantages.
    • The Berne Conference of the Association for the Reform and Codification of the Law of Nations

      Baldwin, Simeon (1881-01-01)
      Not the least pleasant part of a vacation spent abroad to an American lawyer is the opportunity which every summer now presents of attending some of the conferences of an international character, held at one or another of the European capitals, for the discussion of questions of jurisprudence or political science.
    • Change of Domicil

      Rogers, Henry (1881-01-01)
      Domicil of origin is distinguished from domicil of choice. Domicil of origin is the domicil which every one receives at birth, while domicil of choice is that which is acquired by the voluntary act of the party. Changes from domicil of origin to domicil of choice, or from one domicil of choice to another of choice, often involve important and interesting inquiries, to some of which attention is invited. In a former article we had occasion to consider the law of domicil in its relation to married women, infants and persons under guardianship. It then appeared: 1. That a married woman could not acquire a domicil of choice separate from that of her husband–that her domicil could only be changed by her husband, except in those cases in which he had been guilty of such dereliction of duty as to entitle her to a divorce. 2. That an infant could not change its domicil. That the domicil could only be changed by the father in his life time, or the mother during her widowhood. 3. It was thought that the guardian could change the domicil of the ward, if done with no fraudulent intent. The consideration that was then given to the subject makes it unnecessary to enter into any discussion of changes of domicil by persons belonging to the above classes, and attention is called rather to changes of domicil by persons who are sui juris.
    • Literary Property

      Rogers, Henry (1881-01-01)
      At common law, the author of an unpublished manuscript had a property in his production, which continued in him until publication by his consent. But the question of what rights an author possessed in his literary productions, independent of any statutory provisions upon the subject, was for a long time a topic of excited discussion among literary men, and one of much interest to the legal profession, it being a subject of much litigation in the courts. The first determination which the subject received in the court of King's Bench, was in the famous case of Millar v. Taylor, decided in 1769. It was held by the court that while at common law an author had the sole right of first printing and publishing for sale his writings, yet after such publication made by him, he possessed no property rights in his production, which could be infringed by a republication by a stranger, unless the author had taken out a copyright under some statute giving him such right.
    • Bills to Quiet Possession and Title

      Rogers, Henry (1881-01-01)
      That the judgment of a court having competent jurisdiction is, while unreversed, conclusive upon parties and privies, and estops them from litigating a fact once passed upon, is a maxim of both the civil and the common law. The maxim equally applied to actions respecting the title to real estate and to those respecting personal property. When, however, the action of ejectment was substituted for real actions, it was found that, owing to an ingenious legal fiction, a recovery in ejectment constituted no bar to a second, or to any number of similar actions for the same premises. By the fiction of a lease, entry and ouster, and the recovery of a fictitious term of years, the same issue could be tried between the same parties, as the record would exhibit an entirely different issue and between different parties. In this way it was possible for a party in possession with both a legal and equitable title to be annoyed by continued litigation, which sometimes resulted in ruin. In order to suppress this vexatious and oppressive litigation, courts of equity finally interposed, and allowed what is known as a "bill of peace" to be filed, which sought to procure a repose from any farther litigation of the title to the property.
    • Impeachment of Verdicts for Misconduct

      Rogers, Henry (1881-01-01)
      That a verdict may be impeached and set aside for misconduct of the jury, or for that of the court in its intercourse with the jury, or for the misconduct of the parties or that of their counsel, or for the misconduct of the officer in charge of the jury, is an elementary principle of law, long since recognized and established. Notwithstanding the general recognition of the principle, there seems to be some diversity of opinion as to the manner in which verdicts may be impeached for such misconduct. The rule, as it is usually laid down, is that the affidavits of jurors can not be received to impeach their verdict. But in a case in the Supreme Court of the United States, Mr. Chief Justice Taney, in speaking on this subject, said: "It would perhaps hardly be safe to lay down any general rule upon this subject. Unquestionably such evidence ought always to be received with great caution; but cases might arise in which it would be impossible to refuse 'them without violating the plainest principles of justice." And we find in several cases, that the courts, while recognizing the correctness of the general principle, have held that the affidavits of jurors may be received to impeach their verdicts, by showing misconduct of the parties, or misconduct of the officer having them in charge.
    • The Law in Relation to Crops – Fructus Industriales

      Rogers, Henry (1882-01-01)
      It is well known that a fundamental distinction is taken between fruits, produced by the annual labor of man in sowing and reaping, mowing and cultivating, and such as constitute the natural growth of the soil. That corn, wheat, oats, barley, potatoes, etc., being fructus industriales, are considered as the representatives of the labor and expense bestowed upon them, and regarded as chattels; while grass, trees, fruit on trees, etc., being fructus naturales, are, in contemplation of law, a part of the soil of which they are the natural growth.
    • Gifts Causa Mortis

      Rogers, Henry (1882-01-01)
      Justinian, in describing a donatio mortis causa, says that it is "when the donor wishes that the thing given should belong to himself rather than to the person to whom he gives it, and to that person rather than to his own heir." In illustration of which he cites the words which Homer puts into the mouth of Telemachus when the latter gives to Pirceus: "Pirous, for we know not how these things shall be, whether the proud suitors shall secretly slay me in the palace, and shall divide the goods of my father. I would that thou thyself shouldst have and enjoy these things rather than that any of those men should; but if I shall plant slaughter and death amongst those men, then indeed bear these things to my home, and joying give them to me in joy."
    • Profert of the Person

      Rogers, Henry (1882-01-01)
      In the early history of English law the rule was that accused persoi.s were compelled to answer to any criminal charge brought against them. The practice was akin to denying to a prisoner the right to be defended at his trial, or to exculpate himself by the testimony of witnesses–a practice derived from the civil law. But all this gradually was changed, and nemo tenebatur prodere seipsum became a maxim of the law. This maxim has been incorporated into the fundamental law, and established in the Constitution of the United States, as well as in those of the several States, when it has been espressly provided that no accused person shall be compelled to give evidence against himself in any criminal case.
    • Insanity–Burden of Proof

      Rogers, Henry (1882-01-01)
      The defense interposed in the Guiteau case has served to direct attention to the law of insanity in criminal cases, to an extent hitherto unknown. The acquittal of Sickles in the District of Columbia, and of Cole, and of McFarland in New York, served to create a public sentiment which has been constantly growing, and which, looking upon the defense of insanity as a "dodge," demands that the law shall be strictly construed, and so rigid a rule laid down as shall make it impossible that such a defense should be successful, unless the prisoner was unquestionably insane. The danger is, that in laying down the rule so rigidly, the actually insane may be unjustly convicted. Such a result is to be avoided, unless we are prepared to act upon the theory advanced by some, that a murderer should be executed whether he be sane or insane. We do not believe that such a theory will find favor to any extent. "Without reference to sentiment or ideas of duty," as an eminent gentleman recently said, "or to any philosophical reasoning whatever, it is practically impossible for a civilized nation to deliberately and consistently inflict the highest punishment of responsible crime on irresponsible lunatics, or to shoot them down as wild bulls running through the streets; for to do this we must ourselves first become rebarbarized; the weapon of our defense would burst in our hands–we should destroy our civilization in the very effort to save it."
    • Farming on Shares

      Rogers, Henry (1882-01-01)
      The courts have been called upon in a number of cases to pass on the question of the relation which exists between the owner of the land, and one who works it upon shares under an agreement with the owner. The number of times that this question has been presented, is evidence of the uncertainty and perplexity which have been supposed to prevail in relation to the matter. As the question involved is not without its importance, it may be interesting to consider the subject, and ascertain what the principles are which govern in such cases.
    • Notice to Quit

      Rogers, Henry (1882-01-01)
      The rule is that the necessity of a notice to quit is based on the relation of landlord and tenant, and where that relation does not exist, the notice to quit is not necessary. Therefore, it has been held that a mortgagor in possession, is not entitled to notice to quit, as he is "at most a tenant at sufferance, and may be treated either as a tenant or trespasser, at the election of the mortgagee." And no notice to quit is necessary where one has taken possession under an adverse claim. So, where the tenant going into possession of the premises under the title of the landlord, afterwards disclaims, he has no right to insist on a notice to quit. At common law, a tenant at sufferance was not entitled to notice to quit. But it has been provided by statute in some of the States, that it shall be necessary to serve him with notice to quit. It is so provided in Missouri, where one month's notice is required, and in Wisconsin. But in Michigan, and in Oregon, the statute requires a notice of three months. This provision, requiring notice to be given to tenants at sufferance, has given rise to some troublesome questions.