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Creditors of insolvent corporation intervening in aid of receiver not entitled to.-While creditors of a corporation in the hands of a receiver in proper cases may intervene and aid the receiver in the defense of individual claims made by action or petition, such intervening creditors are not, as of right, entitled to costs in proceedings to which they become parties either out of the fund or against the adverse party. Motion denied. Matter of People, ex rel. Attorney-Gen

tion of Worthington to keep the control of the wheat
and the order for the delivery of the property was
given to Nims merely for the purpose of carrying it to
the office of defendant to have the wheat transferred,
the act of defendant's agent would be negligence and
plaintiff entitled to recover. Held, that the instruction
was correct. Judgment below affirmed Farmers and
Mechanics' Nat. Bank of Buffalo v. Erie Railway Co.
Opinion by Rapallo, J.
[Decided January 22, 1878.]


When landlord entitled to rent of premises tenant

eral, v. Security Life Insurance Co. Opinion per deprived of.-Defendant, a lessee of premises, brought

action against plaintiff, the lessor, for damages in being deprived of the use and occupation of such premises during a certain period, and recovered judgment for the whole value of the use and occupation of such premises, no deduction being made for rent. Held, that the lessor was thereafter entitled to recover the amount of rent agreed to be paid for such premises during such period. Order below reversed. Knox v. Hexter. Opinion by Andrews, J.

[Decided December 18, 1877.]



[Decided January 22, 1878.]


Railroad aid town bonds: who cannot raise question of invalidity of.-Under the provisions of Laws of 1866, chap. 398, § 4, for the bonding of towns in aid of railroads, it is provided that the money raised by taxation for the payment of the bonds shall, when collected, be paid to the town railroad commissioners, and by them shall be applied thereon. Money was raised by taxation and paid to the railroad commissioners for the purpose of paying interest on bonds issued by a town. Held, that, in an action by the holder of the bonds against the commissioners to recover such interest, the invalidity of the bouds could not be set up as a defense. Judgment below affirmed. First National Bank of Oxford v. Wheeler. Opinion by Andrews, J. Folger, Miller and Earl, JJ., concur; Church, C. J., and Allen, J., dissent.

[Decided January 29, 1878.]



Under new Code: supplemental answer under § 574: appealable order.-The allowance of a supplemental answer, under section 574 of the New Code, is discretionary with the court below, and an order granting or refusing leave to make such answer is not applicable to the Court of Appeals. Appeal dismissed. Spears v. Mayor of New York. Opinion by Folger, J. [Decided February 5, 1878. Reported below, 10 Hun, 160.]


1. Presumption of delivery of deed from recording: how rebutted.-The fact that a deed was recorded more than forty years previous to an action in which it is claimed as a source of title, no possession of the premises, which were in a thickly settled place and valuable only for their use, having ever been taken by the grantee, is sufficient to repel the presumption of delivery arising from the record of the deed alone. Order below affirmed. Knowles v. Barnhardt. Opinion by Church, C. J.

2. Title and obligations of widow occupying dower lands in common with heirs.-The possession of land by a widow as doweress, and as guardian in socage of the minor children, held to be as tenant in common with all the heirs. When the land was occupied under a contract of sale to the deceased husband of the widow, held, that she could not purchase for her individual benefit the contract or a title to the land. [Decided December 18, 1877. Reported below, 9 Hun,

Liability of carrier for damages from bill of lading negligently issued to wrong person.-Worthington, who had the general title to and control of wheat stored in an elevator at Buffalo, had verbally agreed to sell the same to Nims under a contract by which title and possession were not to pass until payment. He drew this order for the wheat, directed to the elevator, and gave it to Nims:

"Propellor Mohawk, or Niagara elevator: Deliver to the Erie Railroad fifteen thousand bushels Mil. wheat, more or less. Subject to order, S. K. Worthington."

Nims gave the order to defendant's agent at Buffalo, who issued to Nims a bill of lading in his own name, and took possession of the wheat and transported it to New York. Plaintiff, on the faith of this bill of lading, advanced money to Nims, and afterward took possession of the wheat and sold it to reimburse the advance it had made. The M. Bank, which had a lien on the wheat for advances to Worth- | 443.] ington, brought action against plaintiff for the value of the wheat, and obtained a judgment against plaintiff, which was sustained on the ground that no title passed to Nims by Worthington's acts. In an action by plaintiff to recover damages claimed to have been caused by defendant's negligence in giving the bill of lading to Nims in his own name, the court, at trial, submitted to the jury the question, whether, by his dealing with Nims, Worthington intended to part with the control of the wheat and to deliver it to Nims in pursuance of the verbal contract of sale, and to authorize him to dispose of it as needed, and charged that if such was the intent they should find a verdict for the defendant, but that if it was the inten


1. Lien law relating to ships: canal boat a vessel.— A canal boat is a vessel within the meaning of the statute (Laws 1862, chap. 482) relating to the collection of demands against ships and vessels. Mony v. Noyes, 5 Hill, 34, contra, was under the Revised Statutes, and is not authority. Order below affirmed. King v. Greenway. Opinion by Miller, J.

2. Personal judgment, execution, and supplementary proceedings does not impair lien on boat.-The fact that a personal judgment has been obtained on the claim against the boat, execution issued and supplementary proceedings had, does not impair the lien upon the boat given by the statute. Ib.

3. Statute giving lien on vessels not unconstitutional: proceedings against vessel by name.-The statute in question is not unconstitutional. The fact that the vessel proceeded against was a steamboat and proceeded against by its name could not alter the case or demand a different rule. Ib.

4. Statutory construction: Laws 1863, chap. 422, § 2.— A steamboat was constructed with a view to run on Lake Ontario, but never did run anywhere except upon the canal, Oswego river and Seneca lake. Held, not a vessel "navigating the western and northwesteru lakes, or any of them," under the provisions of Laws 1863, chap. 422, § 2, amending the statute relating to claims against vessels. Ib. [Decided December 11, 1877.]


Principal liable to surety for costs and expenses incurred in securing payment of debt.-While a surety cannot call upon his principal for expenses incurred in defending himself against liability or for remote or consequential damages, he may call upon him to reimburse him for reasonable expenses in enforcing the payment of the debt by the principal, or the application of his property toward it. Accordingly, where the surety made an arrangement with the creditors whereby he gave security for the payment of those demands, and received authority from them to take the necessary proceedings in their names to secure the property of the estate of the debtor and the application to the payment of the debts for which he was surety, and paid the costs and expenses of the proceedings himself, held, that the estate of the principal was liable for such costs and expenses. Order below affirmed. Thompson v. Taylor, In re claim of Matteson. Opinion by Rapallo, J. [Decided January 15, 1878. Reported below, 11 Hun, 274.]



Reports of Cases Decided in the Court of Chancery, the Pre-
rogative Court, and on Appeal in the Court of Errors and
Appeals of the State of New Jersey. John H. Stewart,
Reporter, Vol. I.

railroad company mortgaged with the railroad is a part of the realty. Force v. City of Elizabeth, p. 403: The alteration of the number of a municipal bond, where different bonds of the same series are distinguished alone by numbers, will avoid the instrument as to the one making the alteration and those claiming under him. There are a number of valuable notes by the reporter subjoined to cases, among which we particularly notice these: On page 79, relating to the relative rights of surface owners and mine owners; on page 145, as to the rights of street railroad companies, and the use of their tracks by the public; on page 210, upon the subject of undue influence; on page 404, on the subject of compound interest, and on page 537, relating to the remedy for interferences with ferry franchises.


Reports of Cases Adjudged and Determined in the Court of

Chancery of the State of Delaware. Under authority of the General Assembly. By Daniel M. Bates, late Chancellor. Vol. II. Philadelphia: T. & W. Johnson & Co., 1878.

The present volume contains cases selected from the manuscript notes of the late Chancellors, Johus, Jr., and Harrington, from the year 1833 to that of 1865. The reporting is carefully done, and many of the cases involve interesting questions, which are ably discussed. Among the decisions of interest we notice these: McDowell v. Bank of Wilmington. etc., p. 1: An agreement between the creditor and the principal debtor in order to discharge the surety must be such as gives time to the debtor, and it must be for a consideration. Kilby v. Goodwin, p. 61: A mother, on her death-bed, delivered securities and jewelry to a third person for the benefit of her minor children. Held a valid donatio mortis causa. Logan v. Brick, p. 206: A voluntary conveyance, though without a fraudulent intent, is void as against creditors under the statute of 13th Elizabeth. Frazer v. Frazer, p. 260: The party alleging insanity is bound to prove it, but general insanity being proved, the onus upon the party setting up any act as binding to prove that it was done in a lucid interval. Pickering v. Day, p. 333: The consent of a collector of internal revenue that a deputy might use the public funds in his hands in his private business, uncommunicated to the sureties on the official bond given by the deputy to the collector, discharges such sureties. Garden v. Derrickson, p. 386: A bond under seal, though voluntary, creates a debt, is impeachable only for fraud, and is enforceable against the grantor and all claiming under him as volunteers. State v. Griffith, p 392: Charitable uses are not within the rule of law as to perpetuities. The English Mortmain acts did not extend to the colonies. The volume is finely printed and bound.

THIS volume, the 28th in the series known as the

New Jersey Equity Reports, is a model in every respect. The reporter has done his work in the best manner, the decisions are published promptly after their delivery, and the mechanical execution of the volume is excellent. The decisions given are those of the various terms of the courts mentioned during the year 1877, closing with the November term of the Court of Errors and Appeals. Among the cases of value we notice these: Morris v. Hill, p. 33: A common rumor that an injunction has been dissolved will not excuse the breach of it. First Nat. Bank of Freehold v. Irons, p. 43: Fraud will not be inferred from circumstances which merely indicate unusual gener


osity, Camden H. R. R. Co. v. Citizens' Coach Co., p. THE following decisions were handed down Tuesday,

February 19, 1878:

145: The public right to use a horse railroad track in the streets of a city for vehicles does not authorize a transportation company to use it in competition with the railroad company. Stoudenger v. City of Newark, p. 187: The streets of a city may be lawfully used for the construction of sewers, whether the public right was acquired by condemnation or dedication. Williamson v. N. J. South. R. R. Co., p. 277: As between a mortgagee and execution creditor, rolling stock of a


Wilkinson v. First
Judgment affirmed, with costs-
National Fire Insurance Co.; Troy and Lansingburgh
Railroad Co. v. Kane; Von Sachs v. Kretz; Scofield v.
Churchill; Bank of Commerce v. Bissell; Scholey v.
Halsey. Judgment affirmed - People v. Brown.-
Order affirmed, with costs-Morris v. Tuthill.-
Judgment affirmed, with costs of all parties to be paid
out of the estate-Garvey v. McDevitt.


denied, without costs of motion-Horn v. Pullman. Motion denied, without costs - Dering v. Metcalf. Judgment reversed, and new trial granted, costs to abide event - McMurry v. Noyes; Mowry v. Sanborn; Furst v. Second Avenue Railroad Co.- Order of General Term reversed and that of Special Term affirmed, with costs In re petition Trustees of New York and Brooklyn Bridge v. Burr. - Judgment reversed, and judgment for defendant, with costs, with leave to plaintiff to amend complaint, on payment of costs, within twenty days after notice of filing remittitur-Littaner v. Goldman. -Judgment modified, so as to affirm order without modification, and without costs to either party on the appeal; the respondents to pay $10 costs of this motion and costs of remittitur, and subsequent proceedings-In re petition of Hebrew Benevolent Orphan Asylum of New York. Judgment of Supreme Court and decree of surrogate modified, by declaring the same without prejudice to an action by the administrator for relief, and staying proceedings thereon for sixty days after filing the remittitur, to enable him to bring such action, if he shall be so advised, without costs, in this court or Supreme Court, to either party-McNulty v. Hurd.

A correspondent writes:


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Are you going to let Senator Sessions' bill relative to taxation of mortgaged real property pass unnoticed and become a law, virtually exempting the railroad corporations of this State from taxation, and creating the worst muddle in assessments ever conceived. Doesn't it look like a railroad job?"

We referred to the bill on page 61 of the current volume. A bill of like nature is introduced every year, but preceding legislatures have been sensible enough to refuse to pass any such foolish measure, and we presume the present body will do likewise.



EORGE W. PASCHALL, well known as a writer on law, died at Washington, D. C., on the 16th inst He was born in Green county, Georgia, November 28, 1812. He was educated in the Georgia State College at Athens, was admitted to the bar in 1832, and removed to Arkansas in 1837. In 1841 he was elected Judge of the Supreme Court of Arkansas. In 1848 he removed to Texas. In that State he devoted himself to the practice of his profession, and in the preparation of his well-known law works. These are "An Annotated Digest of the Laws of Texas," "Annotated Constitution of the United States," five volumes of the "Texas Reports," and a "Digest of Decisions." He also wrote many pamphlets and articles upon questions of jurisprudence and political science. In 1869 he removed to Washington, D. C., and remained there until his death.

Gideon Welles, ex-secretary of the navy, who died last week, studied law in the offices of Chief Justice Williams and Judge Ellsworth, of Connecticut, and was admitted to the bar, but he was never engaged in active practice.

Sir Edward Creasy, who recently died in England, was for two years Chief Justice of Ceylon, and had occupied an inferior judicial position in England. He is best known to Americans by his works, "The Rise and Progress of the British Constitution," and 66 The Fifteen Decisive Battles."


law periodical has made its appearance.

It is entitled The Southern Law Journal, and is published monthly at Tuscaloosa, Alabama. The second number, that for February, which is the only one we have received, contains interesting articles upon "Lord Jeffreys," "Executorial Duties and Personal Trusts," and "The Theory of the Election for President." There is a review of the case of Miller v. Marx, decided by the Supreme Court of Alabama, wherein the ruling of the court that when a homestead cannot be reduced in area so as not to exceed $20,000 in value, there is no exemption under the Constitution, and in the absence of legislation, no authority to allot the family an equivalent in money, is criticised sharply. A syllabus of the decisions of the Supreme Court of, Alabama at the December term, 1877, covers a large number of cases, and we presume gives all those decided for the term mentioned. Abstracts of decisions of the Federal Supreme Court and the highest courts of the several States are also given. The editorial notes, though brief, are well written and to the point. Our new contemporary is well worthy the support of the profession of Alabama and the adjoining States, and we trust that they will sustain it.

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In the cases of Usill v. Hales et als., decided by the Common Pleas Division of the English High Court of Justice, on the 30th ult., there were three actions for libel brought by the plaintiff, a civil engineer, against the three defendants as printers and publishers of the Daily News, the Standard, and the Morning Advertiser. Certain persons who had been employed by the plaintiff in the construction of a railway in Ireland, applied to a metropolitan police magistrate for a criminal process against the plaintiff to recover from the plaintiff the wages due to them. The magistrate dismissed the application on the ground that he had no jurisdiction, and a report of the proceedings was printed and published in the defendants' newspapers, which was the libel complained of.

At the trial the jury found the report in the newspapers to be a fair and impartial report of what took place before the magistrate. The judge ruled the report to be privileged, and his decision was sustained by the Common Pleas Division. The Solicitors' Journal says that this case, though likely to be cited as a leading case, and overruling, as Lord Coleridge said, what has been over and over again laid down by great judges, is really only a return to the old lines. In 1796, in Curry v. Walter (1 Esp. 456;1 B. & P. 525), an action was brought in respect of "an account published in the newspaper called the Times," of an application for a criminal information. It was ruled by Eyre, C. J., and afterward by the Court of Common Pleas, that the action did not lie. This ruling, which was very shortly reported, though approved in R. v. Wright (8 T. R. 298), soon became a mark for judicial attack. Lord Ellenborough, in R. v. Fisher (2 Camp. 563), and Lord Tenterden, in Duncan v. Thwaites (5 D. & R. at p. 479), distinctly disapproved of it. Lord Campbell, in Lewis v. Levy (E. B. & E. 537), with characteristic caution, expressly left the point open. Lord Chief Justice Cockburn, in Wason v. Walter (L. R., 4 Q. B. at p. 94), with equally characteristic boldness, predicted that, if any action or indictment founded on an ex parte proceeding were to be brought, it would probably be held that the true criterion of the privilege was, not whether the report was or was not ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the information of the public, and innocent of all intention to do injury to the reputation of the party affected.

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
Albany Law
Law Journal.

ALBANY, MARCH 2, 1878.


N the case Matter of Allen, reported in our pres

States District Court for this district, strongly animadverts upon a kind of transaction common enough in bankruptcy proceedings, and regrets the inability of the court to interfere with it. A bankrupt firm, apprehending insolvency, began paying favored creditors and themselves out of the partnership assets; then, being unable to compromise their debts, they made an assignment to a friend, and shortly after procured a petition in bankruptcy to be filed against them, and then took proceedings for a composition. During all the time the bankrupts kept possession of the firm property under some pretext or other. The attorney who managed the proceedings for the bankrupts represented most of the creditors, and the court states that during all the transaction no step was taken to protect creditors. Judge Wallace says: "It shocks the moral sense to assist in this dishonest scheme of judicial action," and that "the bankrupt law permits just such schemes as this." We are glad to record this judicial protest against the bankrupt law, and hope it will encourage those striving in Congress to procure its repeal. As the law stands to-day it is of no advantage to any honest debtor or honest creditor, and no benefit to the legal profession generally. There is a small but active interest who derive profit from its continuance, but we hope that interest is not this year strong enough to thwart the generally expressed wish of the business community that the law be done away with.

It is proposed in England, by legislation, to abolish actions for breach of promise of marriage, a movement which the Law Times justly remarks "will recommend itself to the common sense of mankind." These actions are very frequently made the means of extorting money; in fact, the circumstance that one is brought is presumptive evidence that the purpose with which the plaintiff sought to enter into matrimony was a financial one. If the right of action did not exist the business of a class of scheming females would be cut off, and such persons are all who would be injuriously affected. A sensitive, high-minded woman never seeks a VOL. 17.- No. 9.

court of justice to get such a wrong as this kind of action is founded upon, righted, and others ought not to be permitted to do so.

The Court of Appeals, on the 22d ult., adjourned until the 18th of the present month. The court announced its determination not to hear any arguments hereafter in appeals where the printed cases are not properly indexed; and the further requirement is made, that the names of the counsel appear in the briefs. The court has done a large business since its assemblying January 14th-having decided 134 cases, many of them involving the writing of elaborate opinions. There remain over several undecided cases of considerable importance, among which are Bertholf v. O'Rielly, and one other case argued in December last, involving the constitutionality of the civil damage law, and Lange v. Benedict, where the question of the liability of a judge for false imprisonment under an erroneous sentence is raised.

A bill recently introduced in the assembly by Mr. Seebacher, for the protection of working people, is an example of a kind of legislation that ought not to meet with favor. It provides that in judgments recovered for wages, when the amount is less than $50, if the execution issued is not paid the debtor may be arrested and put in a jail or debtor's prison for fifteen days. As a sort of compensation for this, it is provided that if, on a trial by jury, it shall be found that the plaintiff was in the wrong or intended persecution, he may be imprisoned. It was asserted that when imprisonment for debt not contracted fraudulently was abolished, we had taken a long step forward in the way of legal reform, and the common judgment of intelligent men has justified that assertion. But at this late day it is proposed to go back to the old system, and to imprison men who are unable to pay contract debts. The class of debts mentioned is undoubtedly a very meritorious one, but it is not sufficiently meritorious to call for the enactment of such a statute as is proposed. There may be cases of wrong, now and then, which the present laws do not remedy, but they furnish no excuse for the proposed statute. We hope the legislature is not yet ready to restore imprisonment for debt.

The position of a judge in England does not appear to be one of personal safety. A few months ago the papers were filled with the account of an assault upon a vice-chancellor with an egg, most of the public, however, being disposed to laugh at the incident. Sir George Jessel, Master of the Rolls, on the 22d ult., met with a much more serious peril. As he was alighting from his cab at the Rolls Court he was shot at with a pistol in the hands of a crazy minister, named Dodwell, who had previously been removed from the court by order of the Master, for

The House of Representatives, on the 21st ult., passed, by the decisive vote of 169 to 87, a bill providing that when a woman shall have been a member of the bar of the highest court in any State or Territory she shall, on application, be admitted to practice before the United States Supreme Court. The Senate will probably indorse the bill, and we may expect, in the course of the coming year, to hear female counsel arguing causes before the high-dence men who infest our cities and prey upon

representations be made in writing. The object of the latter bill is said to be to prevent the use of criminal process in the collection of debts, but its effect will be to do away with the statute relating to false pretenses, for in not one case out of twenty is the offense mentioned committed by means of a writing. While the statute, as it now is, may sometimes be used oppressively, the change proposed would open the door to the perpetration of innumerable frauds. The persons the bill is designed to protect are entitled to very little consideration, and if it should pass, the cheats, swindlers and confi

creating a disturbance. The bullet from the pistol just grazed the ear of Sir George. It is needless to say that the assailant was arrested.

est tribunal in our land. The bill is, however, a partial one, in that it opens the Supreme Court to the women of those States and Territories only where no distinction is made on account of sex in admissions to the bar. The great body of female aspirants for forensic honors will be still excluded from an opportunity to place their names upon the roll of the Supreme Court. We trust this circumstance will be considered when the bill comes before the Senate. But why not leave the whole matter where it belongs-with the courts? When any considerable number of the States permit women to practice at the bar, the Federal courts will give them the same opportunity, and no objection will be The bar association of the city of New York has raised. Because two or three States and Territories been considering what action it should take in refand the District of Columbia have made the experi-erence to the two bills for reorganizing the Federal ment of admitting women to the bar is no reason courts, respectively introduced by Senators Conkwhy the dozen or so female lawyers who have taken ling and Davis, and now pending in Congress. advantage of the privilege shall be given a favor The Davis bill provides for the appointment of an which is denied to their sisters residing in other additional circuit judge in each of the circuits of parts of the country. the United States, while the Conkling bill provides for additional district judges who are not to be assigned to any particular district, but are to hold District or Circuit Courts wherever they may be directed so to do by the circuit judge. The committee adopted the provisions of the Davis bill on this point, adding an amendment giving to all the circuit judges power to hold District Courts wherever they are assigned to duty by the senior circuit judge. The association passed a resolution approving the detailed amendments suggested by the cominittee, and referred the matter back to it for further consideration.

On the same day the House of Representatives passed bills providing for appearance in behalf of the United States, in foreclosure suits, and for exemption from seizure upon executions or attachments issued by any United States court, the same property which shall be exempted from levy and sale under the laws of the State in which the defendant shall reside. The first-mentioned bill is designed to meet cases where the United States has a subsequent lien on mortgaged property, it being now impossible to cut off such lien for the reason that the United States cannot be sued in the ordinary courts.

Among the bills introduced in the legislature during the past week, we notice one providing that all legal notices published in Sunday newspapers shall be as valid as those published in papers issued on a week day, one authorizing boards of supervisors to revise and correct all erroneous and illegal assessments within their respective counties, and one providing that no one shall hereafter be held for obtaining money or other valuable thing by means of false pretenses or representations, unless the false

strangers, would be beyond the reach of punishment. We trust the legislature will not sanction the bill. An amendment to article 6, section 14, of the State Constitution was proposed in the assembly, which provides that the compensation of judicial officers shall be in the form of a salary, payable monthly, and that judges shall receive no fees or allowances. A bill requiring justices of the peace to give bonds has passed both houses, and the bill enacting the last nine chapters of the Code of Civil Procedure has been ordered to a third reading in both houses.



N Thompson v. Lambert, 44 Iowa, 239 an action was brought oy a stockholder in a corporation to prevent the corporation from paying certain notes given by it and sccured by a mortgage upon its real estate, for a loan of money to it, and to have the notes declared null and void on the ground that the money was borrowed for a transaction into which the corporation had no authority to enter, and that the giving of the notes and mortgage was ultra vires. The court held that the rule ultra vires

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