by a married woman. 3. Neither will her separate property be made liable for her general engagements, in the absence of a contract valid in law to bind the same, or of such facts and circumstances as make it, as between the parties, just and equitable. 4. When a married woman subscribes to capital stock of a railroad corporation, by which she agrees to take and pay for a certain number of shares of said stock, but makes default in payment, and an action is brought to charge her separate property with the amount of such subscription: Held, that in the absence of any proof that either party dealt on the credit of such property, equity will not imply or enforce a charge against the same. Opinion by JOHNSON, C. J.-Rice v. T., T. & E. R. R.

GIFT OF FUND-CHECK.-The drawer of a check delivered it to the payee, intending thereby to give to the payee the fund on which the check was drawn. Held, that until the check was either paid or accepted, the gift was incomplete; and that in the absence of such payment or acceptance, the death of the drawer operated, as against the payee, as a revocation of the check. Opinion by WHITE, C. J.-Simmons v. Cincinnati Savings Society.

HOMESTEAD-ABANDONMENT-CONSTRUCTION OF ACT.-An insolvent debtor conveyed all his property, including his family homestead, on which were certain liens which precluded its exemption, to an assignee for the benefit of creditors; afterward the assignee brought an action to marshal liens, and for the sale of the homestead, in which action a sale was ordered for the payment of the preferred liens, reserving however to the debtor the right to demand such exemptions as the law might allow; before the sale, the family dwelling house was entirely destroyed by fire, and the debtor and his family removed from the premises without intending to rebuild the house; and thereafter the premises were sold under the decree for more than sufficient to pay the preferred liens. Held, 1. That there was no abandonment of the right to homestead, which continued in the debtor until the property was sold. 2. That out of the surplus after payment of the preferred liens, upon the application of the debtor's wife, an allowance should be made to her in lieu of the homestead, in analogy to the provisions of the homestead act in favor of debtors who are not the owners of homesteads. 3. The 4th section of the act of April 9, 1869, (66 Ohio L., 50) does not apply as against debts contracted before its passage; but independent of this section, the debtor's right to the exemption attaches to the surplus of the proceeds of such sale, as against creditors whose claims do not preclude the allowance of a homestead. Opinion by MCILVAINE, J.; OKEY, J., having been of counsel, did not sit in this case.-Kelly v. Duffy.

the parties, and cannot be contradicted by parol evidence. Where the record in a foreclosure suit was given in eviden e, and the plaintiff offered to prove by competent witnesses that, at the time of the alleged service of process upon her, she was in Illinois and could not have been and was not served with the process, the evidence was properly rejected. Opinion by WORDEN, J.-Johnson v. Patterson.

VOID JUDICIAL SALE-RECOVERY OF PURCHASE MONEY.-An action will lie to recover purchase money paid for real estate at a sheriff's sale, which has been set aside for irregularities. But the value of improvements made by the purchaser can not be taken into consideration in estimating the amount of his claim. Under the common law, one who made improvements in good faith on the land of another, in the belief that he was the owner of the land, bad to lose his improvements in case the land was recovered from him by legal proceedings. It is only by virtue of the occupying claimant law, which is of statutory origin, that the occupant of land, under such circumstances, can recover any compensation for his improvements. Opinion by NIBLACK, J.-Westerfield v. Williams.

erroneous.

MARRIED WOMAN-ESTOPPEL IN PAIS.-Action to recover real estate. The court gave the following charge to the jury: "If you find that the plaintiff knew that the strip of land in dispute belonged to her, and she also knew that the defendant was erecting valuable improvements upon said premises in good faith, and under the belief that the same belonged to him, and she did not disclose her claims to him, then she is estoppel now to claim the land, although she was a married woman at the time." Held, the charge was In the act concerning real property, it is provided that the joint deed of husband and wife shall be sufficient to convey the lands of the wife, but not to bind her to any covenant therein. In the act touching the marriage relation, it is provided that a wife shall have no power to encumber or convey her lands except by deed in which her husband joins. A married woman can not do indirectly what she can not do directly; can not do by acts in pais what she can not do by deed. She can not, by her own act, enlarge her legal capacity to convey her own estate. To say that a married woman may divest herself of the title to ber land by an estoppel in pais, would be to overturn the statute. Opinion by WORDEN, J.-Behler et al. v. Weyburn.

QUERIES AND ANSWERS.

[In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's department-i. e, we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecutively during the year, and correspondents are requested to bear this in mind when sending answers.]

QUERIES.

15. WILL SOME READER HEREOF cite me to a welldigested and late case sustaining the rule that the assignee of a chose in action can only recover what he paid? READER.

16. NATIONAL BANKS-POWER TO TAKE A VALID MORTGAGE.-Can a bank, organized under the National Banking Act, take a valid mortgage (such as is in general use in the Western states, and which confers a lien only) upon real estate, as security for a debt concurrently created, or to secure future advances? We are aware that this question has been answered negatively by the courts, as in Kansas Valley National Bank of Topeka v. Rowell, assignee, etc., 2 Dillon, 371, and some other cases. But are these decisions well

considered. Does the term mortgage, as used in the Revised Statutes of the United States, sec. 5137, mean any mortgage, in the general and popular sense of that term, whether the instrument confers a lien merely, or whether it vests the fee in the mortgagee? Does not this term mean only such a mortgage as was known to the common law, and should not this section be construed accordingly and in harmony with Charles River Bridge v. Warren Bridge, 11 Pet. 545; Rice v. Railroad Company, 1 Black, 374-5? If the design of Congress in placing this restriction upon national banks was to keep them from investing the currency provided for distribution and circulation in real estate (and thus practically defeating the purpose of the legislature in providing a circulating medium), the reason for prohibiting investments in the common law mortgage, whether vadium vivum or vadium mortuum, is quite apparent. But why Congress should prohibit the taking of a security which in no sense invests the bank with the title, or in any manner compels it to look to the issues, rent and profits of the realty to meet the payment of either principal or interest on the loan, is not so apparent. The mortgage in use in the West in no sense conveys the fee. It but simply gives to the mortgagee a lien upon the property mortgaged with no right of possession in the mortgagee, and under which the holder can only enforce payment by proceedings in the courts, and by sale under its process. Why should such a security be held to be within the prohibition of the bankrupt act? Is this statute to mean a common law mortgage in one part of the country, and in another any instrument which confers a lien upon real property? P. G. & P.

17. IN A SUIT BY AN ADMINISTRATOR or executor in a justice court, can a debt, existing against his intestate or testator, and belonging to the defendant at the time of his death, be set off by the defendant, and judgment rendered in his favor for an excess? Such a judgment would, it seems to me, be in violation of sec. 8, art. 4, of the Administration Law, and would enable a creditor to pay himself to the prejudice of creditors entitled to priority, and even to the prejudice of the widow of deceased. Is Thomas' Admr. v. Dunnica, 15 Mo. 385. still the law? D.

ANSWERS.
No. 3.

(6 Cent. L. J., 159.)

The answer of brother Bainbridge to question 3, 6 Cent. L. J., 159, would hardly seem satisfactorily compensatory to the individual aggrieved. There is a deeper a bottom remedy, i. e., trespass against all the individuals actively concerned in the matter, from the magistrate, prosecuting attorney, bailiff, down to the witness. Where there was no jurisdiction, and if the law was unconstitutional, it never existed at all, and all proceedings under it were void ab initio. Consequently everybody actively connected with it was a tort-feaŝor, jointly and severally liable to the person wronged. Vide all the English and American authorities, and you will find none to the contrary, but numberless in support; indeed, as often as the question arose. The legislature need not be called upon, except, perhaps, to indemnify persons who were innocently mulcted in damages.

No. 11.

(6 Cent. L. J. 238.)

S.

I would remark, in answer to "I's" query, that it seems to assume, as matter of law, what may be exceedingly questionable, viz.: that a judgment creditor stands, in respect of his lien, upon the footing of an innocent purchaser for value. It may be that, by force of the statutes of the state where "I" lives, such is the case. If not, we should strongly incline to the opinion that the grantee in the unrecorded deed will

not be bound to submit to the demand of the judgment creditor in any sum; and, of course, the assignee of the judgment is in no better condition. But if by force of any particular statutes of that state, the lien of judgment has priority over that of the unrecorded deed, it is good to the full amount of the judgment, no matter what the judgment cost the present holder. Indianapolis, Ind. NATHAN MORRIS.

No. 11.

(6 Cent. L. J. 238.)

Assignee of Judgment, Plaintiff, v. Equitable, Prior, yet Unrecorded Rights, Defendants.-The weight of authority is with "I" on the proposition stated. His query is, What are the extent of the enforcible rights of the assignee of judgments v. prior, unrecorded, equitable rights? 1st. The assignee stands in the shoes of his assignor. Parsons Cont. 197. 2d. The holder of a judgment lien has a lien only on the actual interest of his debtor, though the debtor may appear to have an interest, yet if in fact he has none no lien attaches. The lien attaches to the precise interest of the debtor. A judgment lien on land is subject to every equity which existed against the debtor at the inception of the lien. Freeman on Judgments, secs. 356 and 357. 3d. If the owner of the equity referred to was to stand by and see the assignee of a judgment sell the land to an innocent purchaser, the equity of the purchaser would prevail over the "prior equity;" but if he purchased the land himself, his title would relate back to the judgment, and take title in accordance with his lien. SUBSCRIBER.

No. 10.

(6 Cent. L. J. 238.)

A patent for land relates back to the date of the purchase, and is evidence of title. in the patentee, from the date of the certificate of purchase. Covender v. Heirs of Smith, 5 Ia. 157; 3 Gr. (Ia.) 349. As between the government and an individual the title passeds whenever the patentee shall have complied with the conditions imposed on him, and nothing is left to be done, except for the government by a ministerial officer to perform a duty, viz.: deliver the patent. It is upon this principle that courts have sustained the power to tax land and upheld conveyances, where the power of taxation was sought to be enforced, and conveyances were made prior to the delivery of the patent. SUBSCRIBER.

BOOK NOTICE.

Volumes 1

DIGEST OF MOAK'S ENGLISH REPORTS. to 15 inclusive, with a List of Cases Reported, Table of Cases Reversed, Overruled and Considered. By JAMES SIMMONS. Also Digest of American Notes. By NATHANIEL C. MOAK. Albany, N. Y.: William Gould & Son. 1878.

Mr. Moak's English Reports embrace all the cases of interest reported in the English law reports, from the year 1872 to the present time. The book before us is, therefore, a digest of English case law for the past six years. It is more than that: for, in the careful and exhaustive notes, which abound in the fifteen volumes of his series, the editor has given a compendium of the case law of this country on the subjects treated which has greatly enhanced their value. Mr. Moak's plan of culling from the English reports everything of value to the profession on this side of the water was an excellent one, for the English reports are exceedingly expensive, and contain much law purely local. That in less than six years a digest is required is another evidence of the growth of case-law.

The volume contains 728 pages, and is printed on good paper and well bound. The titles are very nu

merous, the cross references accurate, and the cases placed in their proper places. To those who possess Mr. Moak's series, the digest before us will be indispensible.

NOTES.

THE proposal to abolish the common law action for breach of promise of marriage, referred to in a former issue, is opposed on the ground, amongst others, that it is not peculiarly of common law origin. The action for breach of promise of marriage existed in Latium according to Aulus Gellius (lib. 3, Noct. Attic. cap. 4), and he refers in corroboration to the work of Servius Sulpitius, entitled de Dotibus. Servius states that this form of action was maintainable until and after the time when the Lex Julia conferred on all the people of the Latium the rights of citizenship. This action was also in vogue among the Romans. Simple consent, express or implied, was sufficient to constitute a cause of action in the event of a breach (Ulpiun, lib. 35, ad. Sab.). The canon law treated promises of marriage with great seriousness, even admitting that in foro conscientiæ spiritual compulsion might be employed to enforce performance; but in later times the rule was relaxed by the Pope, and damages adjudged in lieu. In Sweden the power to decree performance of a promise to marry was retained so late as the year 1810, when it was abrogated. The Oriental Church, following the Israelitish doctrine, viewed a breach of promise in the light of a breach of marriage. Concil. Trullana 692, can. 98. An action of this kind will lie, according to French law, provided special damage be proved. Code Nap., and decisions thereon. By the law of Italy, this right of action arises whenever the formalities specified in article 54 of the code are complied with. The Prussian code renders the breach of a legally constituted agreement to marry actionable, and, under certain circumstances, a penal offense.

A CORRESPONDENT Writes: Are debts property? Is a trust deed a contract? Does a law and its construction, which, on contingency of the death of contract debtor, deprives the creditor of all remedy for the enforcement of his contract against the specified property, impair the obligation of the contract? What is the good of the provisions of section 10 of article 1 of the Constitution of the United States, so far as it affects Texas? Hear what the supreme court of that state says in Lane v. Pascal, 47 Tex. 370: Case, deed of trust on homestead, (lawful contract), wife joined husband in trust deed; husband died; widow claimed homestead in the mortgaged property. The court say: "The death of the husband did not revoke the power of the trustee to sell, but it can not be executed by the trustee, because in conflict with our probate law; and the mortgage can only be enforced through the courts." If homestead, the courts are prohibited from selling; it would be a forced sale. Expenses of last sickness, expenses of administration, expenses incurred in the safe-keeping and management of the estate, as well as allowances to be made to widow and children in lieu of homestead, and other property exempt from forced sale, where such property does not exist in kind, have preference over specific liens created in the life-time of decedent. Here, although the wife joined the husband in the deed of trust, as the power to the trustee is revoked, the property can only be now sold by order of the court. But this would be a forced sale, and if the property is homestead the court is forbidden by the constitution from having it thus sold." And thereby, if

the estate is insolvent, the woman is relieved from a contract which was absolute and binding upon her while her husband was living, but takes an absolute title to the property, notwithstanding the incumbrance with which she has freely and voluntarily joined her husband. If debts are property of the creditor, and liable to be assessed to him as property, on which he must pay taxes, is not this a law which takes one man's property and gives it to another? Yet this is the declared law of a state of the United States. The law and its construction annihilates his remedy, and his own wife and family may starve from the loss of the debt.

IN a paper on Negligence, a writer in the Law Times observes that to define with precision the expressions "fellow-servant" and "fellow-workman " is a matter of no small difficulty. It may, however, be said that the authorities go to the length of the proposition that those only are to be considered as fellow-servants who are employed by the same master, and engaged in a common employment. Warburton v. Great Western Railway Company, L. Rep. 2 Ex., 30; Vose v. Lancashire and Yorkshire Railway Company, 2 H. & N., 728. But workmen employed by a contractor, and workmen employed by a person or company who has employed snch contractor, are considered as being in the same common employment and fellow-servants. Murphy v. Caralli, 8 Ad. & L., 109; Murray v. Currie, L. Rep., 6 C. P., 24; see per Cockburn, C. J., in Woodley v. The Metropolitan Railway Company, 36 L. T. Rep. N. S., 419. The following instances were given in a Scotch case of the absence of such common employment: 1. A dairyman, in bringing milk home from the farm, is carelessly driven over by the coachman. 2. A painter or slater is engaged at his work on the top of a high ladder placed against the side of a country house, and is injured by the carelessness of the gardener, who wheels his barrow against the ladder and upsets it. 3. A clerk in a shipping company's office, sent on board a ship belonging to the company with a message to the captain, meets with an injury by falling through a hatchway which the mate has carelessly left unfastened. 4. A plowman at work on land held by a railway company, and adjacent to a railway is, while in the employment of the company, killed by an engine, which, through the default of the engine-driver, leaps from the line of rails into the field. M'Norton v. Caledonian Railway Company, 28 L. T. Rep. N. S., 376. The following have been held to be fellow-servants, the workmen injured, and the workmen through whose negligence the injury happened, being in the employ of the same master: 1. A laborer traveling by a train by which it was his duty to travel, and the guard through whose negligence the laborer was injured. Tunney v. The Midland Railway Company, L. Rep. 1 C. P., 291. 2. The driver and guard of a stage-coach; the steerman and rowers of a boat; the men who draw the redhot iron from the forge, and those who hammer it into shape; the engineman and the switcher; the man who lets the miners down and winds them up, and the miners. Suggested in Barton's Hill Coal Company v. Reid, 3 Macq. H. of L. Cas., 266. 3. A scaffolder and the general manager of the common employer. Gallagher v. Piper, 16 C. B. N. S., 669; 33 L. T. Rep. C. P., 329. 4. A carpenter employed for the general purposes of the company and the porters. Morgan v. Vale of Neath Railway Company, L. Rep. 1 Q. B., 149; affirmed 33 L. T. Rep. Q. B., 260. 5. The guard of a train and plate-layers. Waller v. The Southeastern Railway Company, 32 L. J., 205, Ex.; L. T. Rep. N. S., 325. 6. A laborer employed to do ballasting and a plate-layer. Lovegrove v. The London, Brighton and South Coast Railway Company, 33 L. J., 329, C. P.; 16 C. B. N. S., 669.

disposition of property by the bankrupt is declared by law to be fraudulent and void, the assignee takes the title subject to all equities, liens or incumbrances, whether created by operation of law or by act of the bankrupt, which existed against the property in the hands of the bankrupt. Brown v. Heathcote, 1 Atkyns, 160; Mitchell v. Winslow, 2 Story 637; Gibons v. Warder, 14 Wall., 248; Cook v. Tullis, 18 Wall. 332, and Jerome v. McCarter, 94 U. S. 739. He takes the property in the same "plight and condition" that the bankrupt held it. Winsor v. McLellan, 2 Story 495. In the case of Goddard v. Weaver, 1 Wood's Rep. 260, it was well said that the assignee "takes only the bankrupt's interest in property. He has no right or title to the interest which other parties have therein, nor any control over the same further than is expressly given to him by the bankrupt act as auxiliary to the preservation of the bankrupt estate for the benefit of his creditors. It would be absurd to contend that the assignee in bankruptcy became ipso facto seized and possessed in entirety, as trustee, of every article of property in which the bankrupt has any interest or share."

In a recent Pennsylvania case, Com. v. Mulholland, 5 W. N. 208, the defendant was indicted for forgery in having fraudulently altered the figures contained in the stub of a check book belonging to another, hut which was at the time in the possession of the defendant. A demurrer to the indictment was sustained, the court holding that an instrument to be the subject of forgery must be such as on its face shows that if genuine it would injure some one, or extrinsic facts must be averred to show that it would do so, which was not done in the case at bar. The stub of a check book, said the court, is a private memorandum of the owner of the checks which he has drawn, intended for his own use exclusively. It is not a writing which can be ordinarily used to charge or discharge anybody. It is not an instrument by which money or other property can be obtained, nor does it tend either to create or discharge a debt. It is a memorandum kept for the private information of the owner alone. A defendant can not be sent to trial upon such a charge without more definite information of the case which he is to be called upon to meet.

In a

case where an indictment charged the false making to have been in the alteration of an order given by the defendant, without charging that the alteration was made after the order was circulated and taken up by him, it was held to be fatally defective. State v. Greenlee, 1 Dev. 523. So where an indictment charged that A did fraudulently forge a certain writing as follows: "Mr. Bostwick charge A's account to us. B & C," it was held that the indictment was not valid without charging that A was indebted to Bostwick, as there could be no fraud unless a debt existed. State v. Humphreys, 10 Humphreys, 442. In Com. v. Shissler, 9 Phila. 587, it was decided, following the decision in Rice v. State of Tennessee, 1 Yerger, 433, that an indictment for forging a receipt was bad which did not charge that the person to whom the receipt purported to be given was indebted to the person whose name was forged. The very essence of forgery is an intent to defraud, and, therefore, the mere imitation of another's writing, or the alteration of a written instrument where no person can be injured, does not come within the definition of the offense. Hence, the rule which is too well established to admit of doubt that the instrument alleged to be forged must be one which, if genuine, may injure another, and if it does not on its face appear to be of that character, then it must be made to appear by other averments in the bill. People v. Tomlinson, 35 Cal. 503; State v. Smith, 8 Yerger, 150; People v. Harrison, 8 Barbour, 560; People v. Shall, 9 Cowen, 778; State v. Wheeler, 19 Minn. 93; Reed v. State, 28 Ind. 396; Bynam v. State, 17 Ohio St. 142; Com. v. Ray, 3 Gray, 441; Clarke v. State, 8 Ohio St. 630; People v. Stearns, 21 Wend. 409; State v. Dalton, 2 Murph. 1; Barnum v. State, 15 Ohio, 717. And this rule is recognized and distinctly enunciated by all the leading writers on criminal law in recent times. 2 Wh. Cr. L., sec. 1487, 1492, 1498, 1468; 2 Arch. Cr. Pr. and Pl., ut supra; 2 Bishop's Cr. Proc., sec. 369; 2 Bishop's Cr. L. 512, 613; 2 Russell on Crimes, 374.

IN Reg v. Bradlaugh, 26 W. R. 412, Lord Justice Bramwell said that the American cases cited by the defendants on the argument were not authorities, and could only be treated as expressions of opinion by able persons acquainted with the general spirit of the common law, and might be looked at just as the decisions of French and Italian courts might be looked at.