Hens Mechanics Carolina ['01 ch. 617] to land of married women. In North Dakota ['01 ch.181] seed grain liens are now allowed on lands "contracted to be purchased." The time within which notices of various liens may be filed has been extended in certain cases in Montana, North Dakota, Michigan and Nebraska [Mon. '01 p.162; N. D. '01 ch.87; Mich. '01 ch.126; Neb. '01 ch.4]. In a few cases legislation restricting or limiting liens has been passed. Thus North Dakota ['01 ch.118] now limits liens on the future earnings of men, animals or machinery to 50% of their gross earnings; South Dakota ['01 ch.174] provides that liens for threshing grain shall not apply as against innocent buyers unless filed within 10 days; and Minnesota ['01 ch.293] requires 5 days' demand in order to claim a labor lien on lumber. By way of enforcing liens New Jersey ['01 ch. 127, 128] has given dyers and silk finishers a right to sell goods held under lien; while Washington ['01 ch.75] has provided a method of enforcing stevedores liens on vessels; and Minnesota ['01 ch.228] has done the same for horseshoers liens on animals shod. One mechanics lien provision has been declared unconstitutional, the section of the California code of civil procedure requiring contractors to file bonds with their contracts. This curious provision declared that unless the contractor filed with his contract a bond for the payment to laborers and materialmen of the value of their labor and material the owner and contractor should be jointly liable therefor. The court held that the penalty fell only on the owner, since under the common law the contractor would be liable in any event, and therefore the law amounted to a requirement that the owner should be liable for the debt of the contractor even in excess of the price named in his contract. The act was therefore held unconstitutional as taking property without due process of law [Gibbs v. Tally 65 P. 970]. It is a curious coincidence that a provision something like the California law above cited has just been adopted in North Dakota ['01 ch.133]. But some differences in the provisions of the North Dakota statute, particularly the fact that the act is limited to contracts for public buildings, so differentiate it from the California act that is is probably exempt from the constitutional objection which nullified the California statute. MORTGAGES LEONARD A. JONES LL.B. JUDGE MASSACHUSETTS COURT OF LAND REGISTRATION The legislation of the year 1901 upon the subject of mortgages is not specially important. The larger part of the enactments in regard to mortgages of real property relate in some way to the satisfaction and discharge of record of such mortgages, and are generally amendments of existing laws, making them more efficient and stringent. In two states there are enactments of somewhat doubtful expediency authorizing the discharge of mortgages held by corporations by certain officers; as in Delaware ['01 ch.205] by the corporation's attorney; and in Indiana ['01 ch.187] by the presi dent, vice-president or cashier of a bank, or the president, vicepresident, general manager or secretary of other corporations. It would seem to be a much safer course to allow the corporations themselves to authorize by vote or bylaw such officers or agents as they might designate. In Alabama ['01 p.39] on a trial of right of property the plaintiff may pay a mortgage upon it within 10 days from the. time the amount is determined; and in Oklahoma a creditor upon the failure of his attachment or execution may be subrogated to the rights of a mortgagee of the property. Of the statutes relating to chattel mortgages several relating to the destruction or disposal of the property mortgaged and relating to the removal of it are similar to statutes generally existing in other states. A novel enactment in South Carolina that the description of the property must be in writing or typewriting, and is invalid if printed, can be justified only by some peculiar custom prevailing in that state ['01 ch.422]. The same remark is applicable to a statute of Tennessee making it a misdemeanor to haul on the state highway during the night unbaled cotton on which there is a mortgage or lien ['01 ch.3]. In Kansas title notes or evidences of conditional sales are to be recorded as chattel mortgages ['01 ch.396]. In Minnesota and Utah [Minn. '01 ch.146; U. '01 ch.93] there are statutes of 1See also Comparative Summary and Index, 1901, no. 1934-65. Mortgages Civil procedure much importance to mortgagees of personal property in regard to the continuance of the mortgage lien, which in the last named state expires in one year unless a renewal affidavit is filed within 30 days thereafter. CIVIL PROCEDURE1 JAMES DEWITT ANDREWS, CHICAGO The summary of legislation pertaining to procedure discloses few measures which can be termed of general importance in the sense that they indicate a tendency or inaugurate a reform. A provision similar to that in Arkansas ['01 ch.23] providing for service on nonresident corporations should be made in every state. The provision for mailing legal notices by registered letter only as in North Dakota ['01 ch.194] is a wise measure, well calculated to prevent fraud. In the domain of pleading proper there is not a single provision, nor are any of the provisions relating to subjects collateral to pleadings, such as amendments, verifications, bills of particulars, of any general importance. The law of Alabama ['01 p.37] allowing the bringing of actions under certain circumstances on Sunday is a distinct advance and the subject is one of general interest. While nothing should be done to detract from the character of the Christian Sabbath the ancient maxim of dies non should not be carried to the extent of staying the hand of justice where acts of fraud are being perpetrated. The courts of equity do not hesitate to act on Sunday where the necessity is shown, and on a parity of reasoning the law courts should act in proper cases. Interstate comity is well observed and the interests of suitors subserved by the law of Arkansas which provides that the courts take judicial knowledge of statutes of sister states. It is a practical rule saving much trouble and expense and should be uniformly adopted. The trial by jury furnishes the most important movements and shows the growing tendency to do away with the requirement of unanimity, and although the Colorado statute is held unconstitutional, the efforts will no doubt be successful. It may be suggested that conservatism in the reform of so ancient and 'See also Comparative Summary and Index, 1901, no. 2449-758. procedure venerable an institution as the jury would be exhibited by first Civil Missouri ['01 p.140] has wisely required the judge to instruct the jury whether requested or not. No more efficacious law for the prevention of mistrials and the attainment of justice can be made than that embodied in the Montana law ['01 p.174] requiring the court to charge the jury before the argument of counsel and permitting the argument of the instructions before they are given. The writer observed the workings of this practice in the trial of Mrs Bonine in the District of Columbia court, and it was apparent that many dangerous points were eliminated by the discussion. Such a practice is no doubt within the discretion of the trial courts and it is worthy of general adoption. Appellate practice receives attention on some important points, notably in the California law ['01 ch.69] allowing appeals from orders before the cause is finally disposed of. The Michigan law ['01 ch.52] that exception need not be taken to the charge to the jury or refusal to charge is an improvement under the ordinary practice but would be unnecessary were the practice adopted of settling the charge in advance of argument or arguing the charge before it was given. The Minnesota law ['01 ch.113] that no exception need appear in the record other than as made in the motion for new trial is less clearly wise. It may save an unskilful lawyer and consequently his client from the blunder of failing to see the point at the proper time, but the apparent waiver of technical matter by the consent involved in failure to object and except, and a subsequent raising of the point, will often work an injury under this law. The Utah statute which provides that questions of fact in findings in equity cases and of errors in law cases are before the review court without a motion for new trial can hardly be said to be a desirable reform [U. '01 ch.27]. The trial court should be given an opportunity to correct the error before an Crimes and punishments appeal is allowed. (New trial motions are not known in ordinary chancery practice.) In the interest of an efficient and uniform procedure several measures may be recommended: 1 In every case where the remedy is misconceived the party should be allowed to change the statement of his cause of action, i. e. his pleadings, so long as he adheres to the pursuit of the same claim arising out of the same transaction set out in the original pleadings, and this even though there is a technical change in the cause of action (or ground of action) as set forth in the pleading and the statute of limitations has run. Where the misconception consists in a mistake in choosing a legal action instead of an equity suit or vice versa, the court should allow the transformation of the suit on payment of costs unless of course the doctrine of election of remedies is involved. cases an election once made should bind. In all 2 In all equity cases having the recovery of money as the real object, e. g. creditors suits and accounting bills, an attachment, garnishee process or sequestering process should be allowed as in suits at law. CRIMES AND PUNISHMENTS1 SAMUEL J. BARROWS, UNITED STATES COMMISSIONER INTERNATIONAL PRISON COMMISSION In reviewing entries under this title in the Summary of Legislation for 1901 it is necessary to prevent misunderstanding as to the scope of this review. To the penologist the title "Crimes and Punishments" suggests the whole range of offenses to which penalties are attached by law. While the term "crimes " suggests offenses classed legally as of a more serious nature, such as are generally denoted by the term "felonies," the word "punishments" suggests the whole range of minor offenses denoted generally by the term "misdemeanors," and in its broadest application it would include all penalties and forfeitures. The distinction between civil and criminal law, always sufficiently vague, almost disappears in American statutory legislation. The old assumption that there can be no law without a penalty has much influence in our modern legislation. 'See also Comparative Summary and Index, 1901, no. 2846-963. |