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statute. The Legislature has used words which by referred to; that they will decline to meet faithfully their explicit, comprehensive and unmistakable the high obligation resting on them, and then rely on meaning embrace fines as well as taxes and debts, If, the irregular consequences of their own default, as an after using the words “dues and demands,” they had argument against the validity of the debt for which intended to exclude fines, how easy it would have been they will have failed to provide. The malappropriato have added the words, "except fines" after the tion which would follow, would not be the legitimate words “dues and demands." But having used these result of the Funding Act, but in effect would be the broad and comprehensive terms, which, by their com- act of the Legislature failing to discharge its duty. mion and explicit meaning, embrace fines, and having The obligation to provide for the interest due by these used no words of exception, it follows, upon every rule coupons is as high as the duty of applying the capitaof construction, that fines are embraced in the terms tion tax and other funds to the schools. Both duties “dues and demands."
are alike obligatory and both may be discharged, as This construction, which would seem to be free there is no conflict between them. It is only by a failfrom all doubt, if it rests upon the language of the ure to discharge the one that the performance of the act, is objected to upon two grounds. First. It is
other can be put into jeopardy, and it rests with the insisted that fines are imposed, as one of the potent
Legislature, by faithfully and fearlessly meeting both means of punishing offenses against the law, and that obligations, to preserve the plighted faith of the State the offender does not satisfy the judgment of the court and protect her Constitution from violation." if he pays an amount less than the fine assessed against After this opinion of the court, delivered by Judge him, which he does if he may pay in coupons instead Bouldin, was announced, there was a motion for a reof money (the coupons being at a discount). In answer hearing, submitted by the attorney-general, and the to this view, it is sufficient to remark that the State court held the case under advisement, for several has a right to say and has said, in the act of her Legis- weeks, anxious to correct its decision, if it should aplature under consideration, how her “demands" pear in any respect to be erroneous, and to give to the against her citizens shall be satisfied, how the liabili- case that calm and careful reconsideration which the ties “due” to her shall be discharged. It might, with gravity and importance of the question involved rethe same propriety and with equal force, be argued quired. After a candid and anxious review of the that debts and taxes due the Commonwealth are not case, the court could find no reason to change its fully discharged by payment in coupons, and yet this opinion, but was confirmed in the justice and reasons is done every day under the statute law, sustained of its conclusions. In delivering the judgment, upon and enforced by the judgment of this court. But in a motion for a rehearing, Judge Anderson, in an able point of fact the judgment for the fine is discharged aud exhaustive opinion, discusses the whole question, to its full extent, so far as the State is concerned, be- re-affirming and enforcing the views of Judge Boulcause the coupon represents the obligation of the State din. And in these views the same judges concurred for the face value of the coupons offered in payment as in the original decision. I mention this to show of the fine.
with what deliberation and care the questions involved Secoud. It is objected that fines are dedicated by in the case of Antoni v. Wright were considered, and the Constitution and by statute enacted in pursuance the futility of again considering these questions exthereof, to the literary fund for school purposes, and if cept to re-affirm and adopt the principles of that case the act under consideration embraces fines, to that ex- so far as they apply to the case before us. tent it is unconstitutional.
With respect to the argument made in that case, as Now, it is to be observed that neither the Constitu- it was pressed in this case, that fines and other revetion, nor any act passed in pursuance thereof, requires nues were dedicated to the school fund, and, therethe collectors of the public revenues, nor the auditor, fore, cannot be paid in coupons, Judge Auderson, in to keep separate and distinct each particular fine as- his opinion (22 Gratt. 874), says:
* “It is sessed against offenders, and pay it over as collected to said that those provisions of the Constitution which the literary fund; but the requirement is, upon fair set apart certain funds and a certain proportion construction, to turn over to the literary fund whatever of the tax for the public schools would be defeated by amount may come into the treasury from the source of this legislation. It would seem to be a sufficient reply fines, and dedicate that amount to the purpose indi- to say that if it were impracticable to raise a sufficient cated. This same argument was pressed most vigor- amount of revenue for both purposes, the latter did ously in the case of Antoni v. Wright, and was an- not impose an obligation on the Legislature paramount swered, I think, successfully and by the lamented to the obligation to provide for the payment of the Judge Bouldin--and I prefer to adopt his views, so interest on the public debt. That was an obligation clearly and ably put, rather than mar or weaken antecedent and paramount to the Constitution itself them by words or views of my own. He says:
and could not be repudiated by the Constitution if it • But it is argued that the contract in this case is had so provided. But it is not repudiated nor ignored, void because it is repugnant to the 7th sec., 8th art., but the obligation is clearly recognized by sections 2, and 3d sec., 10th art., of the State Constitution, dedi- 8, 19 and 20 of art. 10, at least to pay Virginia's procating certain portions of the State revenue to the portion. And, furthermore, this being an obligation support of free schools. We think there is no such of debt and not eleemosynary in its character as are conflict in the case.
* * It only requires that the the other provisions referred to, and however desiraobligations of succeeding Legislatures shall be firmly ble and important it may be that they should be carmet; that there 'should be what the creation of every ried out, I hesitate not to say this is of higber obliganew debt imperatively demands, to wit: an increase tion. But there need be no clashing of duties here. of taxation if the existing rate be insufficient. The It is only required that the Legislature should levy a argument is based on the assumption that subsequent tax sufficient for both objects - a duty imposed on it Legislatures will fail in their duty, and pursue such a by the Constitution. It has not been the practice to course as may result in malappropriation of the funds set apart in the public treasury the ideutical money
received for the public schools; nor is it required by
CONSTITUTIONAL LAW. this Constitution, nor the acts of assembly. And the
1. Exemption from taxation: legislative authority: Legislature has discharged its constitutional obligation
municipal corporation .- It is within the constitutional when it has set apart the required amount for that authority of the Legislature, to empower the city purpose.”
council of the city of Portland, to exempt from taxaThese views, expressed both upon the first hearing
tion for a term of years property belonging to the and the rehearing of the case of Antoni v. Wright, are
Portland Water Company, in consideration of an unapplicable to the case before us, and must goveru our
dertaking and agreement by the company to furnish, decision in this case.
free of cost to the city, a supply of water for its public Much has been said in the case before us about the
and municipal purposes. City of Portland v. Portland sacredness of the school fund and the paramount obli
Water Co. gation of the State to educate the people. This is
2. Municipal legislation : validity of.-Under an act great and high obligation, and no doubt will be faith
of the Legislature, authorizing an exemption for six fully and firmly met by the Legislature. But however
years, a vote of the city council to exempt for five great and high this obligation, it cannot and ought not
years, is valid. The term of exemption does not necto be met, at the sacrifice of other obligations equally essarily commence running from the passage of the sacred, and other duties equally high and binding. A
act by the Legislature, but may begin when the exState, like an individual, must be just before it is
emption is voted by the city council, if the vote is generous. No honest man can or will abstract from
passed within a reasonable time afterward. Ib. his creditors what is justly due them in order to give
3. Authority to city to exempt property to be acit to his children. No State, in order to educate its
quired.-The legislative act allowed the exemption to citizens, ought to withhold from its just creditors that
extend to property of the company not in existence which has been pledged, by its honor and plighted
when the act was passed. Held, that this would infaith, to the payment of its just debts. Both obliga
clude, as taxable, all real estate at a value according tions must and will be met. The people must be edu
with the condition it was then in, and would excated, but they must not be educated at the price of
clude all personal property acquired after that time. repudiation and dishonor. Better would be ignorance than enlightenment purchased at such a fearful price.
CONTRIBUTORY NEGLIGENCE. Iu conclusion, I will repeat here the utterance of the unanimous voice of this court in the Homestead Cases,
Crossing railroad track in front of moving train.22 Gratt. 301, when it declared that “No State and
The plaintiff in his declaration stated that he being in no people can have any real and enduring prosperity,
a narrow fenced lane leading to the crossing over the except where public faith and private faith are guarded
defendants' railroad, and distant about two and a half by laws wisely administered and faithfully executed.
rods from its track, and perceiving the defendauts' The inviolability of contracts, public and private, is
train forty rods from, but approaching the crossing, the foundation of all social progress, and the corner
he being distant seven rods therefrom, attempted to stone of all the forms of civilized society when an en
cross the track before the train should reach it; that lightened system of jurisprudence prevails. Under
his attempt was unsuccessful, and that he was inour system of government it has been wisely placed jured. Held, on demurrer to the declaration, that on under the protection of the Constitution of the United
the plaintiff's statement of facts he was not in law States, and there it rests secure against all invasion."
entitled to recover. Grous v. Maine Central Railroad It only remains for me to say that the petitioner has
DAMAGES. the right under the law to discharge the fiue imposed upon him by the Hustings Court, with a coupon of a
On failure by employer to permit performance of conbond of the State, which the State has agreed to tract for personal services. The plaintiff contracted receive in payment of “all taxes, debts, dues, and de
with the defendants to play first old man and characmands due the State," and that he must be discharged
ter business for thirty-six weeks. At the close of the from further custody.
nineteenth week the defendants discharged the plainStaples, J., dissented.
tiff without fault on his part, who commenced an action for breach of the contract during the next week. Held, that the action was not premature; held, also,
that the plaintiff was entitled to recover as damages RECENT AMERICAN DECISIONS.
for the remainder of the term at the stipulated rate,
less what he actually earned or might have earned by SUPREME JUDICIAL COURT OF MAINE. *
the exercise of reasonable diligence, with interest;
that having obtained another coutract within the line CARRIER.
of his profession within the time of his original conPassenger not traveling with trunk: liability of car- tract with the defendants, the sum which he might rier.-A railroad company is not obliged to carry as have earned thereby to the time when his contract baggage the trunk of one who does not go by the with the defendants expired, should be deducted from same train. Upon receiving the trunk of such person the contract price with the defendants. Sutherland to be forwarded it is received as freight, and the du- v. Wyer. ties and liabilities of common carrier attach, with
MALT LIQUOR. the right to a reasonable compensation for transporta- When what is, question of fact for jury.-Revised tion. (Wilson v. Grand Trunk, 56 Me. 60, and 57 id. Statutes, chapter 27, section 22, enacts that “ale, por138, affirmed.) Graffum v. Boston & Maine Railroad
ter, strong beer, lager beer, and all other malt liquors, Co.
shall be considered intoxicating liquors within the
meaning of this chapter, as well as all distilled spirits." * To appear in 67 Maine Reports.
Held, that the question what is the malt liquor in
knowledge of the proceeding, and not assenting thereto. After the maturity of the note the makers were adjudged bankrupts, and offered a composition of fifty per cent to the creditors, including plaintiff, which was accepted and duly performed. The defendants then offered to pay fifty-five per cent of the balance remaining due, which was refused. Held, that plaintiff was entitled to its double security; that, as the note was not provable in bankruptcy before maturity, it could not be satisfied by the composition, and that, even if it could, the defendants, having refused to pay according to their composition, could not protect themselves by it from an action at law. Sup. Jud. Ct., Massachusetts. National Mount Wollaston Bank v. Porter, 17 Nat. Bankr. Reg. 329.
tended by and embraced in the statute and prohibited from sale," is one of fact for the jury and not one of law for the court. State v. Starr.
MUNICIPAL CORPORATION. Not liable to one injured by defect in highway while racing.--An action does not lie against the town in favor of a person who receives an injury from a defective highway, while using such highway for the express purpose of horse-racing, and matching his horse for speed against other horses. Semble : Aliter, if the fast driving was merely incidental to traveling upon the highway for any of the legitimate purposes for which a highway is designed to be used. McCarthy v. City of Portland.
.PATENT. Contract for royalty under litigated patent valid. If a patentee, in consideration of a royalty, grants to another a license to use his patent, who uses it, the patentee's right being in litigation and that fact known to the licensee, he not having been interfered with, cannot plead in defense that the invention was not new nor that the patentee was not the first inventor. Jones v. Burnham.
SALE. Of personal property: transfer of title : fraud. If C. delivers his oxen to T. as a pledge to secure payment of a note, and T. afterward permits them to remain in C.'s possession to be redelivered if C. does not pay the note in a week, a subsequent purchaser of C. within the week, without fraud against T., acquires a valid title against him. If there is no delivery from C. to T., and the transaction between the parties is an agreement merely that the oxen shall be held as security, to be taken by T. in case of failure to pay the note, then T. takes no title and cannot contest the title of a subsequent purchaser, though his purchase was fraudulent. Mosher v. Smith.
1. What it bars.-A discharge in bankruptcy bars the collection of a claim for the purchase-money of land which has been allotted to the debtor as a homestead in the bankruptcy proceedings. Sup. Ct., North Carolina. Hoskins v. Wall, 17 Nat. Bankr. Reg. 314.
2. Does not operate as payment: husband and wife. -A discharge in bankruptcy does not operate as a payment, but is simply a bar to the enforcement of the obligation; and, unless pleaded in defense by the debtor, it is waived. The discharge of the husband in bankruptcy cannot be pleaded by the wife in bar of an action against her, under the laws of Louisiana, to recover her half of a community debt, where she has accepted a community. Sup. Ct., Louisiana. Ludeling v. Felton et al., 17 Nat. Bankr. Reg. 310.
Mistaken removal of fence under authority of town officer.-Trover lies against a person who removes a quantity of fence from the land of its owner, although such person was acting at the time under tbe direction of town officers and mistakenly supposed the fence to be upon the land of the town. Smith v. Colby.
RECENT BANKRUPTCY DECISIONS.
CHATTEL MORTGAGE. Assignee in bankruptcy cannot maintain trover for mortgaged property against mortgagee.-Where, before the commencement of the proceedings in bankruptcy, the holder of a chattel mortgage executed by the bankrupt took possession of the mortgaged property and appropriated it to his own use, held, that the assignee could not maintain an action of trover to recover the value of such property. U.S. Circ. Ct., New Jersey. Jones v. Miller, 17 Nat. Bankr. Reg. 316.
1. An act of bankruptcy: when it will not prevent discharge.-The making of a voluntary general assignment by a debtor is an act of bankruptcy of itself. But to prevent a discharge, the assignment must have been made, not only in contemplation of bankruptcy, but with intent to prefer some creditor, or for the purpose of preventing the property from coming into the hands of the assignee in bankruptcy, or from being distributed in satisfaction of his debts. U.S. Dist. Ct., N. D. Illinois. In re Croft Brothers, 17 Nat. Bankr. Reg. 324.
2 Partnership: homestead : when discharge refused. -Partnership assets are a trust fund for the payment of the firm debts, and no exemptions can be set apart from them to the individual partners until all the partnership debts are paid. The bankrupts made a general assignment for creditors. One of the members of the firm, whose homestead, which had been paid for and furnished out of the partnership earnings, was held in his wife's name, took from the assignee the amount he claimed as exemptions, and continued business in his wife's name. Subsequently the bankrupts were adjudicated in voluntary proceedings. On application (for a discharge, held, that the assignment was made in contemplation of bankruptcy and for the purpose of preventing the property of the firm or some part of it from coming into the hands of the assiguee for distribution, and that a discharge should be refused. Ib.
LEASE. One valid against bankrupt is valid against ussignee. --A lease of property owned by the bankrupt, which is valid against him, although not recorded as required by the statute of the State, is valid against
COMPOSITION. When creditor entilled to double security : refusal to pay composition.-Defendants, who were indorsers of a promissory note, were adjudged bankrupts before its maturity, and proposed a composition at fifty cents on the dollar, which was accepted and recorded, the note being entered on their schedule as held by the party from whom plaintiff had received it, plaintiff having no
the assignee, although he bad no knowledge of its tion of duties, held, that it devolved upon the plainexistence. Sup. Jud. Ct., Maine. Goss v. Coffin, 17 tiff to make out his case by showing the illegality comNat. Bankr. Reg. 332.
plained of. Judgment of U. S. Circuit Court, S. D. New York, reversed. Arthur, plaintiff in error, v. Un
kart. Opinion by Hunt, J. When mortgage creditor cannot prove claim for de
JURISDICTION. ficiency: valuation of security.-A creditor of the bankrupts, holding security by way of mortgage upon
Of Court of Claims.-The Court of Claims has jarisreal estate, obtained leave of the bankrupt court to diction of a suit brought to recover an amount allowed foreclose his mortgage in a State court, sold the real by the commissioner of internal revenue upon the estate under the decree of foreclosure, and proved his
claim of a brewer for an excess of special tax stamps judgment for deficiency on the sale as a claim against used by him in payment of the special tax upon his the estate. On re-examination of the claim, held, that business at the beginning of the year, when, at the he could not prove for his deficiency; that if he de- close, it was found he had manufactured less than five sired to do so, he should have taken the necessary
hundred barrels, and the payment of the amount so steps to obtain a valuation of his security in the man- allowed had been refused upon proper application to ner prescribed by section 5075. The ordinary order the disbursing officers of the Treasury Department. granting leave to foreclose a mortgage upon the bank- Judgment of Court of Claims reversed. United States, rupt's property, cannot be construed as directing that appellants, v. Kaufman. Opinion by Waite, C. J. the value of the creditor's security be ascertained by a
REAL ESTATE. sale under a decree of foreclosure. Dist. Ct., N. D. New York. In re Herrick, 17 Nat. Bankr. Reg. 335.
Open possession operates as notice of title.-In Illinois
actual, visible, and open possession of real estate is TRUSTS.
equivalent to registry of the conveyance thereof, and Default of factor.–The default of a factor in not operates as notice of title to creditors and subsequent making payment to his principal is not a fraud, nor is purchasers. Decree of U. S. Circuit Court, N. D. the debt created by such defalcation, “while acting in Illinois, affirmed. Noyes, appellant, v. Llall. Opinion any fiduciary character," within the meaning of sec- by Clifford, J. tion 33 of the Bankrupt Act. Only technical or special
STATUTES. trusts, as contradistinguished from those which the
Repeals of revenue laws by implication not favored.law implies from the contract, are within the meaning | Repeals by implication of revenue and collection laws, of the section. U. S. Circ. Ct., W. D. Pennsylvania.
except when the prior laws have been subjected to a Keime v. Graff & Co., 17 Nat. Bankr. Reg. 319.
general statutory revision, are not favored in legal de
cision, unless it appear that the prior provision has been UNITED STATES SUPREME COURT ABSTRACT.
re-enacted in the new regulation, or that the later act
is repugnant to the former, and the Revised Statutes CONSTITUTIONAL LAW.
provide in express terms that whenever an act is reLaw impairing obligation of contract: corporate char- pealed which repealed a former act, such former act ters: consolidation of existing corporations : amendment
shall not thereby be revived unless it shall be expressly of charter.-Charters were granted to two railroad
80 provided. (Rev. Stat., $ 12, p. 2.) Judgment of U.S. companies, in each of which it was provided that a Circuit Court, S. D. New York, affirmed. Kohlsaat, specific tax therein named, and that only, should ever
plaintiff in error, v. Murphy. Opinion by Clifford, J. be levied or assessed on the corporations, or any of their franchises, and that the charter should not be revoked, annulled, altered, limited or restrained with
NOTES OF RECENT CRIMINAL DECISIONS. out the consent of the corporation. Subsequently INTENT: WHEN ESSENTIAL TO OFFENSE.-Defendant under legislation for that purpose the corporations
was indicted for selling intoxicating liquor in violation consolidated and formed a new corporation, which of the provisions of the act to provide against the were by the statute under which the consolidation was
evils resulting from the sale of intoxicating liquor in made to have all the powers, privileges and immuni
the State of Ohio. It was held by Ashburn, J. (Scott, ties of each old corporation, but the new corporation J., dissenting), that where one does an act in apparent was subject to the general law of the State providing
violation of a criminal statute, but under circumthat corporate charters could be altered. Held, that
stances that tend to show a want of guilty intention, the new corporation could not claim immunity from
he may be allowed to introduce as evidence, to show taxation under the provisions of the charters of the
his good faith, or that he was ignorant of the facts, old corporations constituting it. Judgment of Su
that made his acts criminal, the excusing circumpreme Court of Maine affirmed. Maine Central Rail
stances. Farrell v. State, Sup. Ct. Ohio, Dec. 1877. road Co., plaintiff in error, v. State of Maine. Opinion
MALT LIQUORS: LAGER BEER PRESUMED TO BE. -In by Field, J. Strong, J., dissented.
a prosecution under a statute against selling “ale, EVIDENCE.
wine, rum or other strong or malt liquors" without a Burden of proof : negative allegation.-When a nega- license, the government, without introducing evidence tive allegation involves a criminal neglect of duty, that lager beer is either a strong or malt liquor, simofficial or otherwise, or fraud, or the wrongful viola-ply proved the selling of a glass of lager beer. Detion of actual lawful possession of property, the party fendent contended that in the absence of evidence to making the allegation must prove it, for in these cases prove that lager beer is either a strong or a malt liquor, the presumption of law, which is always in favor of the jury could not find a verdict of guilty, and mored innocence and quiet possession, is in favor of the party a dismissal of the complaint. Defendant also recharged. Accordingly in an action against a collector quested the court to instruct the jury, that, before of customs duties to recover for an alleged illegal exac. they could render a verdict of guilty, they must be
satisfied that from the proof the lager beer claimed to terms of which-as will be seen by reference to the be sold was either a strong or malt liquor. The mo- case of Freeman v. Freeman, 51 Barb. 307 (S. C., 43 N. Y. tion and request were denied. The defendant ex- 35)-do not fairly present the question as to the effect of cepted and appealed. Held, that although the govern- a conveyance of land to husband and wife, in fee, with ment does not name lager beer in the prohibitory no particular designation of the character of the tenancy. clause of its statute, it does name it in prescribing the The only authorities cited in Freeman v. Barber for license fees “for a license to sell lager beer, ale and what the court characterises as res adjudicata on this other malt liquors only, at retail only,” the fee shall subject, are Goelet v. Gori, F. & M. Bk. v. Gregory, be “not less than fifty dollars, etc. ;” that in view of supra. the fact of its recognition in the statutes, as a malt In Beach v. Hollister, 5 N.Y. Sup. (T. & C.) 568, all the liquor, the court might rightly assume that it is such, court decided was, that the husband's interest in lands and that it would not be necessary for the government conveyed to husband and wife could be sold on executo show by proof that lager beer is a malt liquor. tion against him, and the grantee in the sheriff's deed State v. Goyette, 11 R. I. 592.
could recover possession of the property, and this notwithstanding a divorce a vinculo had been procured
by the wife. Justice Mullin dissented. See 3 Hun, CONVEYANCE OF LAND TO HUSBAND AND
517, S. C. WIFE SINCE MARRIED WOMAN'S ACTS.
All else is obiter. The only cases cited from our To the Editor of the Albany Law Journal:
reports are Goelet v. Gori; F. & M. Bk. v. Gregory; SIR-I have read with pleasure the communication Freeman v. Barber, supra. The cases cited from Michiof your correspondent J. C. L., in your issue of 4th gan and Pennsylvania are not applicable. Their statinst. My “skepticism” is so deep seated that it will
utes differ from ours. not be entirely removed, until the Court of Appeals In Baker v. Lamb, 11 Hun, 519, all that is decided is, shall decide the precise question in hand. I know of no that a married woman is not seized of a separate case involving it ; pausing there, and perhaps a brief estate in lands conveyed to husband and wife, sufficresume of the authorities, and a word or two in refer- ient to charge the same with the payment of a promence to
he matter may pe of service to the profes- issory note made by her, and no express charge having sion.
been made, she was not liable on the note. The point Goelet v. Gori, 31 Barb, 314, seems to have been the was not necessarily involved in the decision of Baker pioneer case. It arose on demurrer at Special Term, v. Lamb. The cases of F. & M. Bk. v. Gregory, and and all the court decided was that the joint and several Beach v. Hollister are the only ones cited, as bearing covenant of husband and wife--who were joint lessees for a term of years--to pay rent did not per se bind In Meeker v. Wright, 11 Hun, 533, the action was the separate estate of the wife. There was no charge brought for the foreclosure of a purchase-money mortupon her separate property ; and the court held that gage executed by a wife to her husband, of lands her covenant did not biud her.
originally conveyed to husband and wife, and afterThe court (Judge Sutherland) says: “The statutes ward couveyed by husband to wife. The court held were intended to enable married women to take, and the deed and mortgage void iu law, and the latter not hold, and dispose of property, as if they had no hus- enforceable in equity. The learned judge cites only bands.
the case of F. & M. Bk. v. Gregory in support of the In Farmers and Mechanics' Bank v. Gregory, 49 position that the old rules as to the effect of the conBarb. 155, a judgment creditor of the husband sought veyance to husband and wife are not affected by the to reach money in the hands of his wife, received by Married Women's Acts. Here, again, I think the point her on a sale of lands which had been conveyed to her in question was not necessarily involved in the decision. and her husband, and held by them as joint tenants, I do not find in any of the cases above referred to au under a conveyance, which in terms describes them as l'analysis of the statutes in question, or their comparisuch. The court decided that the money did not be- son with the rules which prevailed at common law. long exclusively to the wife, but must be applied to the Clearly, the effect of the decisions in F. & M. Bk. y. payment of the judgment, and that the referee who Gregory, and Beach v. Hollister, is to fasten on the had held that the husband and wife were each entitled wife, in respect to the estate conveyed to herself and to a moiety of the proceeds had committed no error husband, all the commou law disabilities of ouverture, of which the wife could complain. All else is obiter, to subject her “interest therein, and the reuts, issues and the only authority as to the effect of the statutes and profits thereof," during their joint lives, to the in question, cited by the learned and lamented judge, absolute control, possession of and alienation by her is Goelet v. Gori, supra.
husband, as well as to liability for his debts. The point under discussion was not then necessarily In Moore v. Moore, 47 N. Y. 467, it is held, that a involved in either of these cases.
wife can hold an equal undivided half part of real In Miller v. Miller, 9 Abb. (N. S.) 444, the supposed estate, as tenant in common with her husband, and controlling authority of these cases led the court at can maintain an action for partition against him. Special Term (Murray, J., contrary to his own convic- In Wright v. Wright, 54 N. Y. 444, the court (Reytions), to decide that husband and wife were not ten- nolds, C.) says: “I do not see why a married woman ants in common, of lands conveyed to them since the may not sue her husband, to enforce any right affectstatutes.
ing her separate property, in any form of action in In Freeman v. Barber, 3 N. Y. Sup. (T. & C.) 574, the same manner that she may suo any stranger, and it was decided that the wife could not maintain an ac- such, I think, is the judgment of the court.” Citing tion for use and occupation of, or waste on lands, given cases, to her and husband by parol: The husband and wife The statute for “the more effectual protection of the went into possession of lands under a parol gift, the property of married women says: