Gambar halaman
PDF
ePub

session of a check, made payable to the order of a particular person, confers no authority on the drawee to pay the same to the person having such possession, without the genuine indorsement of the payee. Dodge v. National Exchange Bank.

2. When custom among bankers does not excuse wrongful payment. The duty of the drawee, upon acceptance of such check, to pay the same only upon the genuine indorsement of the payee named therein, is not affected by a custom among bankers as to the mode of ascertaining the identity of the person indorsing the name of the payee and receiving payment. If the drawee relies upon false representations as to identity, for which neither the drawer nor payee are responsible, he makes payment to a wrong person at his peril. Ib.

FRAUDULENT CONVEYANCE.

1. When voluntary conveyance not void as to future creditors. A voluntary conveyance of land made by a husband to his wife, through the intervention of a trustee, will not be held void as to future creditors, on the mere ground that the husband subsequently became insolvent. Evans v. Lewis.

2. When it will be held void as to subsequent creditors. Such conveyance will be set aside at the suit of a subsequent creditor, only on proof that it was made with intent on the part of the grantor thereby to defraud such subsequent creditor or creditors. Ib.

3. Action sounding in tort.-One having a valid cause of action, sounding in tort, against such grantor, at the time of such conveyance, upon which an action was subsequently brought and judgment recovered, is to be regarded as a subsequent creditor. Ib.

HIGHWAY.

Change of grade of, entitles adjoining land-owner to compensation. Where a public highway has been adopted by a municipal corporation as a street, and used the same as such without change of grade for more than thirty years, and lot-owners upon such street have used reasonable care, discretion, and judgment in making their improvements, with a view to future proper and reasonable change of such grade, and the municipal authorities cause a change of grade in such street to be made, which occasions injury to the lotowner, and the change of grade causing the injury could not, by ordinary care, discretion, and judgment, have been anticipated, such municipal corporation will be liable for the injury. City of Youngstown v. Moore.

PATENT RIGHT NOTES.

Non negotiable note not included in act in relation lo. The act of May 4, 1869 (66 Ohio L. 93), making it a penal offense to take a "promissory note or other negotiable instrument," not containing the words "given for a patent right," knowing the consideration thereof to be a patented invention, does not include in such offense the taking of notes or instruments not negotiable. An indictment which does not show that the note or instrument on which it is founded was negotiable, does not show an offense under the act, and may be met by demurrer. State v. Brower.

STATUTE OF FRAUDS.

Verbal contract void by, performed by one party: recovery on quantum meruit. -- Although an action cannot be maintained upon a verbal contract not to be performed within one year, yet when such contract has been fully performed by one party, the other having obtained its benefits, he cannot refuse to pay the

reasonable value thereof. T. agreed to work until coming of age, a period of six years or more, for M. Having performed the contract, T. may maintain an action quantum meruit for his services. Towsley v. Moore.

CORRESPONDENCE.

THE PROCEDURE RELATING TO THE COLLECTION OF DEBTS.

To the Editor of the Albany Law Journal:

SIR-Now that re-codification and "reform" is the order of the day with our legislature, I wish to suggest that a most excellent opportunity is offered for an amendment to the existing system of procedure relating especially to the collection of debts.

Of course, in their broadest scope, all actions arising on contracts are actions to collect debts, but in this communication it is proposed to use the word "debt ” in its common significance among business men and traders, i. e., a liability arising out of a sale of goods or other property.

As the law stands at present, it would seem to have been made for the especial benefit of dishonest and failing debtors, and hence for the discomfiture and defrauding of diligent and honest creditors, whenever the latter attempt to recover their claims and debts by an action on contract.

Delay can be interposed, as is known to every lawyer who conducts a commercial practice, and that almost without limit. The defendant meanwhile prepares for the storm and makes every thing safe and snug by the assistance of a friendly creditor or relative, and before judgment can be entered and execution issued, puts his property beyond the reach of process by an assignment for the benefit of creditors. If this proceeding usually carried out the design of the general assignment act, by dividing the debtor's property equitably among all the creditors, it would be well enough, perhaps, and possibly that act gives as beneficial a method of setting up an insolvent's affairs as could be devised and applied by human beings limited and encompassed by their "environment."

Such, however, is not the case. In at least seventy-five per cent of the general assignments made by business houses in this State, I venture to affirm that the moving power and motive that induced them was an intention to hinder, delay and defraud the creditors, or the majority of them, and to give the debtor a chance to pay off his debts at a small percentage and resume business again in better condition, financially, than ever before, though perhaps not in his own

name.

The bankruptcy laws of the United States were intended to remedy this evil, but the remedy is worse than the disease itself, on account of the attendant expense and procrastination.

So, also, the many forms of action to set aside fraudulent conveyances, fail to secure justice, because of the extreme difficulty in proving the fraud where the debtor has been at all astute or has acted under unscrupulous legal advice. It is unnecessary to go into further details. Few lawyers have failed to notice the fact and comment upon it, but fewer still have ever seriously attempted to propose a remedy; most of them, perhaps (let it be said with bated breath!) paying more attention to the fat fees and bills of costs that arise from its existence, than to the furtherance

of the interests of the commercial world, by cutting off the dangers that menace the very existence of most of our honest wholesale firms who, while paying dollar for dollar themselves, are constantly defrauded by the defective operation of the very law that was designed to protect them and give them a just reward for diligence in pursuing their legal remedy for a breach of the debtor's contract of payment. It is even maintained, in some quarters, that there can be no effectual remedy devised, on the principle, I presume, that the law can seldom obviate the natural result of a badly diseased moral state in the community in general. This may be true to a certain extent, but can never be an absolute obstacle or rebuke to legislation, until every means has been tried without success to better the existing methods of procedure.

The question then is, what is the remedy? One method advocated, I believe, by the board of trade of the city of Albany, in a petition to the legislature now in session, is to adopt the Massachusetts practice of beginning all civil actions by attachment of the debtor's property. To my mind this would prove a dangerous weapon in the hands of the dishonest debtor and his allies, as well as for the creditor. What would, in my judgment, be a much safer and surer expedient, is the very simple one of amending the sections of the Code relating to the commencement of actions upon contract by inserting a provision that, at the time of the service of the summons and notice or complaint, a copy thereof should be filed and properly docketed in the office of the clerk of the county where

the defendant resides or has property, and that thereby a lien should be created for the amount of the claim. That this lien should extend to: First, the personal property of the debtor; second, if not enough personal property to cover it, then to his real property, and should continue until final judgment, unless the defendant gave a sufficient undertaking, such for instance, as the present undertaking by defendant to discharge an attachment, securing the payment of the debt.

This, of course, could be arranged so as to supply the necessary guards and checks upon unfounded claims, and while open to many objections, would still prove a valuable and efficient remedy for the existing evils. At any rate, I venture to suggest it in the hope that some one will give the whole question a thorough examination, and perhaps stir up enough public sentiment to induce the legislature to attempt some such reform. By the way, since Blackstone's theory of property, arising out of possession, has been exploded, and is now generally displaced by the sounder views of the best jurists and political economists, that it originated and still originates in labor, could not a very comprehensive argument be made that the above proposed amendment would be nothing more than an extension of the laborer's or creator's lien for the purchase or repair price of the article created or benefited? Surely it would, as in the mechanic's lien cases, merely substitute the filing and docketing of the claim for the control or possession of the property by the claimant. Vide Williams v. Tearney, 8 8. & R. (Penn.) 58, and many other cases.

QUERY.

LOWVILLE, February 8th, 1878.

To the Editor of the Albany Law Journal: SIR-Will you be kind enough to give your opinion in the next number of JOURNAL on the following question:

A was elected commissioner of excise under the provisions of chap. 444 of Laws of 1874, which provides that while holding such office he shall not (among others) hold the office of trustee in an incorporated village. After assuming and discharging the duties of commissioner of excise, he was elected trustee of a village incorporated under the general act, and is now discharging the duties of both offices.

Question: Did his election as trustee vacate the office of commissioner of excise, or did the fact that he held the office of commissioner of excise render him ineligible to the office of trustee, and invalidate his election thereto. Yours, etc.,

[blocks in formation]

Judgment affirmed, with costs King v. N. Y. Central, etc., Railroad Company; Eighmy v. Barker; Reid v. Sprague; Merchants' Bank of Canada v. Griswold; McKay v. Barnes; Grady v. Crook; Scofield v Doscher. Order affirmed, with costs - In re petition of Littman to vacate assessment.- - Appeal dismissed, with costs - Mackay v. Lewis; People ex rel. Linney v. Campbell; People ex rel. McCone v. Green.

Motion to dismiss appeal granted, with costs of appeal to time of motion, and $10 costs of motion Bensen v. Perry.- Motion to dismiss appeal denied, with $10 costs-Beunett v. Austin.. - Judgment reversed and new trial granted, costs to abide event Harrison v. Glover; Parr v. President, etc., of Greenbush.- Order of General Term reversed and judgment on verdict affirmed, with costs- Evans v. Clevelaud.― Judgment of Supreme Court reversed, so far as it awards costs to the appellant, and modified by directing a feigned issue to be made up and settled, to be tried at the next Circuit Court to be held in Westchester county, instead of remitting the judgment to the surrogate, without costs to either party as against the other in this court - Sutton v. Ray.

NEW BOOKS AND NEW EDITIONS. BAXTER'S (TENNESSEE) REPORTS, VOLUME I. Reports of cases argued and determined in the Supreme Court of Tennessee for the Middle Division, at the December Term, 1872. Edited by Jere Baxter: Volume I: Nashville.

But there must be a limit to this communication, THIS volume is issued as an individual enterprise on

and though that branch of the subject is tempting, it must be left to some one else to elaborate hereafter. What this letter was meant to do was merely to open up the question for your readers to consider.

Yours, etc., BUFFALO, N. Y., Jan. 29, 1878.

T. C. BECKER.

the part of the reporter, who has to depend upon the sale of the work to remunerate him for his services and expenses. The cases are of the year 1872 and 1873, but the succeeding volumes, which will be given as rapidly as the support furnished by the profession

will encourage, will bring the series as rapidly up to the current decisions as is practicable. The head notes are carefully prepared and accurate, and Mr. Baxter has produced a volume that he need not apologize for. Among the cases of value appearing here we notice these: Fritz v. State, p. 15; a statute forbidding the sale of "spirituous liquors" on Sunday, held, not to forbid the sale of wine. Hennessy v. Mills, p. 38; the want of jurisdiction in a United States court to grant a discharge in bankruptcy may be set up to defeat the effect of the discharge in a State court. Marks v. Borum, p. 87; killing a thief, while committing petit larceny, no attempt being made to arrest him, is unjustifiable, as in an action for damages for such killing, the act of the thief will not relieve the defendant on the ground that the deceased contributed to his death. Cain v. Southern Express Co., p. 315; a recovery cannot be had on a note given for the purpose of compounding a felony. Planters' Ins. Co. v. Sorrels, p. 352; it does not avoid the policy of insurance upon a house insured as a dwelling-house that it was, after insurance, occupied as a boarding-house. Mayor of Nashville v. First Nat. Bank, p. 402; to maintain a suit upon an interest coupon of a city bond the bond need not be produced. The index is fair, and the book is well printed and bound.

POWELL'S ANALYSIS OF AMERICAN LAW, SECOND EDITION.

Analysis of American Law, By Thomas W. Powell, Second Edition.. Philadelphia, J. B. Lippincott & Co., 1878

The author of this work, in his preface, says that the volume is intended only as an outline of the lawas a first book for those who are disposed to make it a study." As a guide to the student, it must prove of value, though as an elementary work, it is not needed by those who have the treatise of Chancellor Kent upon American law. It opens with an introduction containing a chapter on the study of the law, one upon the law in general, and a third upon the application of the law, and the extent of territory of the United States. The body of the work is divided into four books, the first relating to public rights and law, the second to private rights and law, the third to private wrongs and civil remedies, and the fourth to crimes, misdemeanors and their punishments, the well-known divisions of Blackstone being, as will be seen, adopted. The book is carefully written, and the statements of principle appear to be correct. The law given, except when relating to Federal matters, is that of the State of Ohio, so that the work for general readers{cannot be safely used out of that State. The student, who is expected to use the work only as a guide or in connection with other standard treatises, will, however, not be misled. The practitioner everywhere will find the book a valuable aid in refreshing his mind upon the first principles of jurisprudence. The present edition contains very few changes from the first one, as in an elementary work such as this, there is little call for changes. The book has a fair index and is well printed.

[blocks in formation]

zen, and the reading of the very able discussion of it contained in this little pamphlet cannot fail to be of great benefit. The laws at present existing fail to check crime, but this is not the chief objection to them. When a penalty is inflicted under them it is liable to fall upon the wives and children of the criminal with more severity than it does upon the criminal himself. The criminal is confined in prison, but he is clothed, fed and warmed, and in many instances he is not compelled to do any labor. His family, however, suffer because their support is taken away. ExGovernor Seymour says, The way we deal with crime is a reproach to our civilization. We shall have no reform until we get the people of our country to look into our system. The work of Mr. Spencer will lead men to think upon these subjects."

[ocr errors]

The Solicitors' Journal thus speaks of the growth of English law during the past year: "As to the growth of English law during the year, there is little to be said. The last session produced several important administrative acts, such as the Prison Act and the Solicitors Examination Act; but, as regards alterations in the substance of the law, it was almost a blank. There were two or three comparatively small changes in real property law, an amendment of the Factors' Acts, and a useful consolidation of the Settled Estates Acts, but little more. Nor can we point to many judicial decisions of wide-reaching scope or great importance. The recently devised doctrine of the fiduciary relationship of the promoter has been again laid down; and the doctrine of contempt of court, which at one time threatened to assume alarming proportions, has been opportunely checked by the Court of Appeal, which, in reversing a singular decision of Vice-Chancellor Malius, stated that the exercise of this arbitrary jurisdiction ought to be most jealously and carefully guarded;" that a court "ought not to resort to it except in cases where no other remedy is to be found;" and that it was "a power which ought only to be used in extreme cases."It is in lengthy criminal inquiries and in ecclesiastical law cases that the year has been mainly memorble. The case of Clifton v. Ridsdale has probably settled for some time the questions as to external observances; and the case of the Rev. Arthur Tooth, who, after being "attached by his body until he should have made satisfaction for his contempt," succeeded in placing his heel on the neck of Lord Penzance, has brought home to the public at large a profound conviction of the mysterious uncertainty of ecclesiastical law."

[ocr errors]
[merged small][ocr errors][ocr errors][merged small]

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law Journal.

ALBANY, FEBRUARY 23, 1878.

CURRENT TOPICS.

THE legislature has, so far, pasich

are

seven statutes, three of which only are public and general statutes. Of these, the first makes an appropriation for continuing work on the New Capitol, the second extends the time for the collection of taxes and the other makes certified copies of all official field books, maps, surveys, records, etc., in the office of the State Engineer and Surveyor evidence in like manner as the originals. There is, however, a large grist of bills in the hopper, and the grinding out process will soon begin in earnest. When there shall be general acts enough to fill four pages we shall issue them in a supplement. The general and public laws so published by us will this year be more fully annotated than heretofore, and will be accompanied by a list of all acts passed and a full index. Those desiring to receive the supplements should send their subscriptions therefor to the publishers.

Dr. Spear this week reviews the decisions of Judge Benedict in the extradition cases of Caldwell and Lawrence, and very conclusively shows them to be bad law, or rather never to have been law at all.

The sixth section of the proposed constitutional amendment in relation to municipal government, which was adopted by the legislature of 1877, having provoked a considerable opposition upon account of its supposed limitation upon the privilege of suffrage, it has been suggested by some, that the present legislature provide for the submission to the people of that section as a separate proposition, in order that it may not prevent the other sections, against which there is no popular clamor, from being sanctioned. The right of the legislature to take such a course is questioned however, and the opinion of several eminent counsel has been given adversely to the course proposed. The counsel are Messrs. Joseph H. Choate, E. Randolph Robinson, Wheeler H. Peckham, and Simon Sterne, and the Hon. George F. Comstock concurs in the conclusions arrived at by them. The opinion is published in the form of a letter to Alexander Hamilton, Esq., of New York, and presents what to us appear to be conclusive reasons why the present legislature VOL. 17.- No. 8.

should not pass the amendment in any different form, or provide that the people shall vote upon it in any different form than the one in which it came from the legislature of 1877. According to the views of the counsel, whatever is proposed under article 13 of the Constitution, and agreed to by the first legislature as a single and entire alteration of, or addition to, the Constitution, though it may be made up of several propositions, constitutes an amendment, and is in itself one whole and complete thing, and must be acted on by the subsequent legislature and by the people as one whole and complete thing. They are of opinion, also, that if the propo

sitions of this amendment should be submitted sensrately to the people, those adopted could not be regarded properly as a part of the Constitution. Upon this point they cite Cooley on Const. Lim. 304, 3d ed. Opinions of Judges, 6 Cush. 573; Collier v. Frierson, 24 Ala. 100; State v. McBride, 4 Mo. 308.

It is also claimed that the sixth section of the

amendment is not independent of the remaining sections, but forms an inseparable part of them. Whatever may be thought of the arguments advanced in this opinion, the recommendation that the legislature should abstain from an expedient which would raise the troublesome question whether the amendments have been constitutionally adopted, ought to have great weight. As the counsel say, it is better that the advocates of the amendment openly fail than achieve an apparent half success that would cause "confusion in municipal affairs and almost endless litigation."

In the legislature during the past week but few bills of interest were introduced; one providing that a mortgage upon the property of a corporation formed under the general law shall not be valid unless the consent of two-thirds of the stockholders of the corporation is filed in the office of the county clerk where the property is situated; one providing that in the election of directors of life insurance companies, votes cannot be cast on proxies given more than six months previously; and one forbidding the plea of usury to be set up in actions by or against executors and administrators, being all that we notice. A resolution for the amendment of the Constitution so that members of assembly shall hold office for two years, at a salary of $1,000 a year, was introduced in the assembly.

The bill forbidding the plea of usury to be set up against executors and administrators above mentioned, is a move in the right direction, and ought to pass. One of the great objections to the law allowing the defense of usury is the temptation it offers to the debtor to commit perjury. A loan of money is made at the regular rate of interest to one who has no property besides that upon which the loan is secured. The witnesses of the transaction

are the borrower and lender, and a friend or relative of the borrower. If the lender dies, and in an action to foreclose the mortgage brought by his personal representative, the defense of usury is set up, the case depends upon the testimony of one unfriendly to, or possibly interested against the plaintiff. This is not merely a possible case, but it is one very likely to occur, and undoubtedly does occur frequently. The law relating to usury is so firmly established that there is little hope of its repeal or essential modification, but we are confident the legislature will see that it is not permitted to be used as a means of fraud and injustice in the manner mentioned.

The connection of riches and insanity has been forcibly made manifest by several cases pending before the courts of New York during the past month or two. The Lord-Hicks' case and that of Miss Dickie have given the newspapers an opportunity to attack the laws relating to lunacy and the estates of persons of unsound mind, and to propose all sorts of changes therein for the purpose of protecting those whose property is liable to tempt their immediate relatives to construe eccentric acts into evidences of insanity. That the laws need amendment is undoubtedly true, but they should not be so altered as to take from the immediate relatives of persons believed to be insane all right to appeal to the courts of law and authorities for power to control such persons and their property. While the immediate relatives of an individual may not always be solicitous after his welfare, as a rule they are so, and they certainly are more to be trusted than a stranger who volunteers to interfere. The subject is one of difficulty, and under the best devised systems will occur cases of wrong and oppression.

The appointment of Judge Blatchford of the District Court to be judge of the Second Judicial Circuit will meet the approval of every one. It is very generally conceded that the higher judicial places should be filled by men who have had judicial experience; but in appointing the Federal judiciary, this principle has been frequently disregarded. A conscientious judge, who performs his duty, has no time, and, as a rule, no disposition to look after his own advancement, and thus the vacancies in the higher courts are sometimes given to inexperienced men who take the trouble to seek after them. The present executive, however, in his selections seems to have adhered to the proper rule.

The Supreme Court of Illinois have just decided in the case of Law v. People ex rel. Huck, that the certificates of indebtedness issued by the city of Chicago in excess of the constitutional limit of municipal indebtedness are void, and that the city authorities have no power to levy a tax or make an appropriation to pay such certificates. It appears that the bonded debt of the city has at all times, since

the present State Constitution was adopted, been equal to the limit allowed, which is five per cent on the assessed value of taxable property. The amount of certificates which have been issued reaches several millions of dollars, a portion of which, however, has been paid. The trouble seems to have come from the non-payment of taxes by property owners, and the indebtedness was incurred to meet temporary necessities until the taxes could be collected.

Judge Freedman, in charging the jury in a case tried last week in the New York Superior Court, made some pertinent remarks upon the interesting subject of the value of a lawyer's services. Litigants, and those who have occasion to apply to the profession for service or advice, are too apt to estimate the worth of what is done for them by the time occupied in doing it, and, therefore, are very much dissatisfied, when a charge of a considerable amount is made for what apparently occupied only a few Judge Freedman says: hours or a few days of the counsel's time. But as

"To become proficient in the necessary knowledge relating to all these matters involves years of selfdenial, close application and devotion, and a study of almost a life-time. A lawyer's compensation is, therefore, not to be measured merely by the time he actually spends in the discharge of his duties. An advice given in a short interval, but founded upon years of previous acquaintance with the question involved, may, in an important case involving large interests, be worth quite a sum of money."

The popular feeling in reference to lawyers charges is, however, to some extent encouraged by the action of certain members of the bar who, to secure business, underbid their brethren and certain others who habitually make no charge for advice even to those able and willing to pay.

NOTES OF CASES.

N the cases of Johnston v. Commonwealth and Rol

Island v. Commonwealth, recently decided by the

Supreme Court of Pennsylvania, and reported 5 W. N. Cas. 49 and 53, some interesting questions in relation to the crime of burglary are discussed. Rolland, one of the defendants, who had, by a systematic course of friendly and business dealing, gained the confidence of the cashier of a bank, called one evening with Johnston, his confederate, at the cashier's residence, which was in the bank building, and rang the door-bell. Being informed by the person who opened the door that the cashier had gone out, Rolland stated that his companion wished to transact some business with the cashier, and that they would call again later in the evening. On their return, some twenty minutes afterward, the cashier having come in, they were admitted without remark. As soon as they were alone with the cashier they attacked and overcome him and

« SebelumnyaLanjutkan »