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Any married female may take ** ** and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, in the same manner and with the same effect as if she were unmarried, and the same shall not be subject to the disposal of her husband, nor be liable for his debts." 4 Edmonds' Statutes, p. 513, § 3.

It is believed that the real object of legislative enactment on this subject has been to destroy the legal unity of husband and wife where their respective rights of property are involved, and that such object has been attained by the passage of what are called the Married Women's Acts.

The only reason why, prior to 1848-9, and under the Revised Statutes, which provides "that every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy" (1 Edm. Stat. 676, § 44), a conveyance of an estate to husband and wife did not vest it in them as tenants in common was, because husband and wife were deemed one person in law, had no separate existence, could hold no separate title to lands, their several identity was merged in their unity, their rights and interests were incapable of severance during coverture.

The wife's right of property, under the statute of 1849, where land is conveyed to her singly, differs toto cælo from her common-law rights. It is hers absolutely. It is a legal estate, and in respect of it, she and her husband are two distinct persons. Does the mere insertion of her husband's name as a co-grantee in the conveyance reunite this separate relation? Suppose a conveyance is made to an unmarried female and another person, who subsequently intermarry. They are tenants in common when the conveyance is made. Do they cease to be such because of the supervening unity of person? Why does she not "take" the same estate after marriage as before, when the statute says she shall take and hold any interest or estate in land "in the same manner and with the same effect as if she were unmarried?" (I cannot favor my friend with any satisfactory answer to be found in the authorities cited by him.) I think the question has not been squarely met in any reported decision, except perhaps in Miller v. Miller, above referred to, and may be fairly claimed as an open one until the Court of Appeals shall settle it.

It seems pertinent to add, that the reasons which originated this peculiar tenancy of per tout et non per neg, in England, have no existence with us. An adherence to the old doctrine is a check on the transmission and alienation of property, at war with our system. It is a relic of the feudal institution which has lost its vigor in our changed relations. We believe that the laws passed, as their title indicates, for the benefit and protection of married women, were designed to entirely obliterate it. B.



At a meeting of the executive committee of the New York State Bar Association held at Albany on the 15th day of May, 1878, the following resolutions were adopted:

I. Resolved, That the committee on legal biography be requested to prepare for presentation at the next annual meeting of the association, brief memorials of the lives and characters of any distinguished members of the Bar of this State who may have died between the date of the organization of this association and such next annual meeting.

II. Resolved, That upon the death of any member of this association it shall be the duty of the member or members of the committee on legal biography who shall reside in the district where such deceased member resided, to transmit to the chairman of such committee, a professional obituary of suitable length, for reading at the annual meeting of the association and for publication among the proceedings of the association.

III. Resolved, That there shall hereafter be published in the yearly proceedings of this association a brief obituary notice of such members and such highly distinguished lawyers and judges of this State, not members, as shall have died during the current year.


IV. Resolved, That the several district committees of the executive committee be requested to use their influence to promote the formation of local bar associations in their respective districts.

ABUSES AFFECTING THE ADMINISTRATION OF JUSTICE. V. Resolved, That the committee on grievances be requested to inquire and report at the next annual meeting of the association, whether any, and if so, what abuses now exist in any of the courts of record in this State affecting the administration of justice or the interests of the legal profession in either of the following matters:

1st. The appointment of referees, the hearing of matters before referees, or the fees and expenses of proceedings in references.

2d. The manner of publication of legal notices or the expenses thereof.

3d. The fees of registers, sheriffs or county clerks for searching or exemplifying legal records in their official custody.

4th. The preservation or classification of records of conveyances or judicial proceedings by the registers, clerks or other officers having charge thereof.

5th. The charges of attorneys and counsel in the con. duct of legal proceedings 'and in the management of office practice.

And that such committee also report, if such abuses are found to exist, what remedies if any, either by legislation or rules of court, or both, or otherwise, they deem advisable in the premises.


VI. Resolved, That the committee on law reform be requested to consider whether any, and, if so, what legislation is necessary or proper concerning either of the following matters:


1st. The law touching "warranties as distinguished from the law touching “false representations” in policies of insurance.

2d. The law exempting the master from liability for injury to his servant occasioned by the negligence of a fellow servant.

3d. The law relating to fraudulent misappropriation of partnership property, by one partner, without the knowledge or against the will of other partners.

4th. The law relating to the notice to bona fide purchasers or mortgagees of lands by registration of written instruments, especially in large cities.

5th. The fees of jurors or witnesses serving in the trial of causes.

6th. The fees of stenographers for copies of minutes of testimony taken on the trial of causes.

And that such committee report at the next annual meeting of the association its views upon such subjects.

VII. Resolved, That it be also referred to the committee on law reform to inquire and report to this association at its next annual meeting whether any, and if any, what legislation is necessary and practicable in order to diminish the labor, expense and risk, now involved in the transfer of real estate in the large cities of the State upon sale or mortgage; by reason of: (1) the decisions of the courts under the recording acts in respect to constructive notice to purchasers and mortgagees (see Ring v. Steele, 3 Keyes, 450; Tefft v. Munson, 57 N. Y. 97; Dusenberry v. Bulbert, 59 id. 541; Washburn v. Burnham, 63 id. 132); (2) the manner of making up and preserving records showing jurisdiction and judgments in the surrogate's court and other courts of record in this State affecting titles to real estate; (3) the various liens imposed upon real estate by statute; (4) the labor and fees of officials and quasi officials necessarily employed to search and give certificates respecting taxes, assessments, and other liens upon ¡real estate; (5) also any other matters in the judgment of the committee germaue to those hereinbefore specifically referred to.


Resolved, That all members elect of this association, who shall, besides their initiation fee, pay their annual dues for the year 1878, be deemed full members, and that notice hereof be given by the treasurer to all such members elect.

The following resolution was adopted at a meeting of the executive committee of the New York State Bar Association, held at the city of New York, January 25, 1878.

Resolved, that the chairman of the executive committee appoint a committee of five from the association to make arrangements for the annual meeting in November, with power to add one from each district; and they shall have power to prepare an order of exercises for the annual meeting; invite the attendance of the honorary members, and any distinguished lawyers from abroad; invite the reading of theses, or the delivery of addresses by designated persons on topics to be assigned by the committee; and take such other steps as they may deem best to secure a large attendance of the profession, and give permanent interest to the proceedings.

In pursuance of the foregoing resolution, the chairman appointed the following named committee: Isaac Grant Thompson, Albany; Elliot F. Shepard, New York city; E. C. Sprague, Buffalo; Joshua M. Van Cott, Brooklyn; George J. Greenfield, Richmond.


ASSUMPTION OF MORTGAGES BY GRANTEES. To the Editor of the Albany Law Journal:

SIR-In last week's issue you refer to the injustice of the rule holding a grantee of mortgaged premises assuming the mortgage liable for deficiency. It is doubtful if the legislation proposed to meet this (apparent) injustice, viz.: to require the signature of the party claimed to be liable as a condition precedent of his liability, would be effectual, as the result would be to require (as used to be the practice some years ago) the signature of the grantee in every instance to deeds containing an assumption clause, and if such were the case eager purchasers would be compelled to and would assume the obligations of their grantors as often as hitherto. But quere? as to the justice or equity of the rule suggested by you, of making each assuming grantee liable only to his immediate grantor? To practically enforce such a rule, would it not require to fix the liability of such assuming grantee, that such immediate grantor be first damnified, and the remedy of the mortgagee against him be first exhausted? Is not this putting the cart before the horse? Would it not be more equitable to reverse the rule and hold assumers of mortgages equally liable with the original boudsman, but in the inverse order of assumption, and requiring the return of an execution nulla bona against each assumer before giving the right of execution against his grantor? And would not this be more in harmony with the rule recognizing the grantor after conveyance to the assuming grantee, in the light of a surety or guarantor, and such grantee as the principal debtor? You speak of the hardships of assumers. I think the original bondsmen and mortgagors are more to be pitied, years after they have parted with their property, and after it has passed through many hands and they suppose their mortgages paid, perhaps have forgotten all about them, they are called upon, possibly, in a period of unusual depression, to pay deficiencies on nearly every mortgage they ever executed and had not seen satisfied. Let me illustrate in another form: A, in 1870, owning a lot worth $4,000, on which is a house worth $10,000, obtains a loan of $8,000 on the premises, on his bond and mortgage, payable in three years, and containing the usual insurance clause, and shortly thereafter conveys to B, who assumes the mortgage, and who in 1874 conveys to C, who does not assume. C forgets to renew the insurance, and a day or two after the building is wholly destroyed by fire.

The mortgagee forecloses and A has to pay a deficiency arising from no fault of his own but exclusively from the neglect of others. Certainly as between A and B, should not the latter be compelled to pay before A?

It seems to me that legislation is more needed to protect the mortgagor than the assuming grantee. It has been supposed that it was well settled that time given by the mortgagee to the assuming grantee without the knowledge or consent of the mortgagor released the latter, but the General Term in the second district in Meyer v. Lathrop, 10 Hun, 66, held the contrary, and that the original obligor always remained liable to the mortgagee, and I understand the case has just been affirmed in the Court of Appeals, but on what ground I have not been informed. J. C. L. NEW YORK, May 13, 1878.



Federal Citations, an alphabetical table of English and American cases cited in the opinions of the courts of the United States, stating the points as to which they are cited, and showing the effect of such citation by letters and characters. By Robert Desty, author of "Federal Procedure," California Citations," etc. San Francisco: Sumner Whitney & Co., 1877.

THIS volume, as stated in the preface, is designed to
show the value as authority of every case referred to
in the decisions of the various Federal courts.
It em-
braces all the American and English cases which have
been cited, together with the subject-matter, or points
to which they have been cited, with an indication of
their value as authority in the courts mentioned. The SAL

work will prove valuable to the bench and bar in pre-
paring for the argument or decision of cases on trial,
as it will readily show whether a case cited has been
either acknowledged as authority bythe Federal courts,
or has been received as authority on a single point but
denied as to another, or has been doubted, limited or
entirely overruled. The preparation of the book must
have required a vast amount of labor and care, but it
has been thorough and accurate. We are confident
that the work will be welcomed by those for whose
use it is designed, Jand that they will find it a very
valuable aid in their professional labors. The book is
excellently printed on fine paper and is finely bound.


An English version of Legal Maxims, with the Original
Forms, alphabetically arranged, and an Index of
Subjects. By James Appleton Morgan, author of
"The Law of Literature." Cincinnati :
Clarke & Co., 1878.

The tendency to embody principles of law, and indeed of every other science, in what are known as maxims has been common in every age. The ancient works upon moral science were very usually in the shape of a collection of maxims, and very many of the fundamental principles of political science are known to most people only in the form of maxims. The work before us is an attempt to bring together all known legal maxims. These are given in their original Latin or law-French form with the English translation and a reference to the place where each first appears. The maxims are arranged alphabetically under the first word of the Latin or French form, and as a still further means of facilitating reference, an index of subjects is also given. This is the most extensive collection of maxims we have met with, the number contained in the book being two thousand eight hundred and eighty-two, and we suppose every thing of value in the early writers will be found here..

late Judge William Kent, son of Chancellor Kent, and subsequently became associated with Judge Henry E. Davis. After remaining in New York city two years he moved to Geneva, where he made his home for the rest of his life. He was actively engaged in the labors of his profession up to the last week of his life. As a lawyer he ranked very high, and his decisions delivered while in the Court of Appeals placed him among the foremost jurists of his time. He was averse to politics, and did not seek official position. He was believed at the time of his death to be the oldest lawyer in practice in the State.



Samuel A. Foote, formerly Judge of the Court of Appeals of this State, died at Geneva, N. Y., on the 11th instant. He was born at Watertown, Conn., Dec. 19,1790, and after a course of academical study entered Union College, where he graduated with distinguished honHe at once chose the law as his profession, and pursued his legal studies in Albany. Upon being admitted to the bar he rapidly rose to distinction in his profession. While yet young he was elected District Attorney of Albany county. In 1825 he moved to New York city and entered into a law partnership with the


NOTES. ALEM, Mass., has a case which would have gladdened the hearts of the old persecutors of witches. The Boston Advertiser says: "A bill in equity has been filed in the office of the clerk of the courts at Salem, by Miss Lucretia Brown of Ipswich, against Daniel H. Spofford, formerly of Salem, but now of New York, in which she sets forth that she is now suffering from a serious spinal disease, caused by the mesmeric influence which Spofford exerts over her, and she petitions the Supreme Judicial Court for an injunction against Spofford, to restrain him from further exerting his influence upon her. The case is a somewhat curious one, and has excited considerable interest in the community. Spofford professed to cure diseases by the laying-on of hands and mesmeric influence. It appears that he was a pupil of Mrs. M. B. Eddy, of Lynn, who claims to have acquired the art of healing all diseases by a special revelation. She agreed to impart her knowledge to Spofford for $100 cash and ten per cent on his future accruing profits. The $100 was paid, but the royalty has not been, and 'Mrs. Eddy claims that Spofford has set up in the practice of her especial system, and has interfered with her in several of her cases, to the great injury of her patients, Miss Brown's case being one of those in which Spofford has exerted a counter influence. It does not appear that Spofford was ever called professionally to Miss Brown, but that he exerted his influence from a distance, and does now from New York. The issue of the application will be watched with considerable interest."

tion from the State Library, seems, from its success, The enterprise started by Mr. F. H. Norton, of this city, for furnishing lawyers with any desired informato meet a want long felt." To be able to have authorities hunted up, briefs prepared, opinions copied, cases examined, etc., must be of good service to one who has not a large library at his command.

At the annual election of the New York Law Institute, held on Monday, May 13, 1878, the following officers were elected: President, Charles Tracy; First Vice-President, Samuel Blatchford; Second VicePresident, Joseph H. Choate; Third Vice-President, Stephen P.Nash; Treasurer, Cornelius Van Santvoord; Recording Secretary, Joseph S. Bosworth; Corresponding Secretary, Benjamin D. Silliman; Librarian and Committee, Edmund Terry, Thomas H. Rodman, Assistant Treasurer, Aaron J. Vanderpoel; Library Samuel Brown, Edward Patterson, James C. Carter, William Watson, Thomas M. North and Everett P. Wheeler; Committee on Jurisprudence, William M. Evarts, George DeForest Lord, Edwin W. Stoughton, John E. Burrill, Charles F. Stone, Enoch L. Fancher and Edmund Wetmore; Committee on Censorship, McKeon, Clarence A. Seward, Benjamin T. Kissam, Erastus C. Benedict, Charles F. Southmayd, John Henry D. Sedgwick, William H. Arnoux, Rocellus S. Guernsey and Montgomery H. Throop.

Up to Thursday the 16th inst. the Governor had slgued 286 acts of the Legislature.

ALL communications intended for pablication 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, MAY 25, 1878.


HE United States District Court for New Jersey,

in this number, decides that a State which has procured the rendition under the act of Congress of a fugitive from justice who has fled to another State, may put him on trial for an offense other than the one for which he was delivered up, and can try him even though he was surrendered without legal authority. The principle which governs the law of

extradition between the States of the Union is in

this respect different from that which governs when an alleged fugitive from justice is surrendered by one nation to another. Only a few offenses are considered of sufficient gravity to justify the denial of the privilege of an asylum, which most modern nations give to those fleeing from other countries, and the various extradition treaties particularly define these. But between different parts of the same country there can be no privilege of asylum, and the constitutional provision in reference to the delivering up of fugitives includes every crime and not a few specified ones, as do the extradition


In the case of Ex parte Schollenberger, just decided by the Supreme Court of the United States, and which will appear in our next issue, an important question of jurisdiction was passed upon. By the United States statute of 1875, determining the jurisdiction of the Federal Circuit Courts, it is provided that no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceeding. By a statute of Pennsylvania non-resident insurance companies, as a condition of doing business in that State, are required to designate an agent on whom process against them therein may be served, and to stipulate that such service shall have the same effect as personal service. The court holds that a company making such a designation and stipulation is "found" in Pennsylvania under the Federal statute, and the service of process from the Circuit Court

in that State upon the designated agent gives that court jurisdiction.

The Senate committee on the judiciary, on the 20th inst., reported back adversely the bill providing that women who have been members of the bar for three years in any State or territory, etc., shall be admitted to practice in the Supreme Court of the United States, and that no person shall be excluded from practicing as attorney or counselor before any court of the United States on account of sex. The reason given for the adverse report was that there is now no law excluding females from the bar in the courts mentioned, and therefore there is no necessity for the passage of the bill.

A Brooklyn clergyman during the delivery of a sermon on Sunday last, charged the district-attorney of Kings county with a violation of his duty as a public prosecutor, in not procuring an indictment against a young man named Johnson, who was confined in the jail of that county upon a charge of assault with intent to kill, and in permitting steps to be taken for the transfer of the prisoner, who is alleged to be insane, to a lunatic asylum. The most serious part of the charge was that the sum of $25,000 had been expended by the friends of Johnson in securing this result outside of the amounts paid the counsel who appeared for him, and the congregation before whom the sermon was delivered were left to infer that the As the serpublic officials had shared in this sum. mon contained a large amount of clap-trap talk about the favoritism shown in the administration of justice to the rich, the general criticisms upon what had been done would have attracted little attention, and the remarks of the reverend gentleman would have been passed by as a harmless tirade against a class of individuals whom certain of the clergy think they have the right to denounce ad libitum. But the specific charge of the improper expenditure of money brought one of the speaker's hearers to his feet, and the speaker was informed promptly that what he had said was not the fact, and that he knew it. The district-attorney, in a letter published in the Brooklyn papers, explains fully and satisfactorily what has been done in the Johnson matter and the reasons therefor, and denies the principal slander. The prisoner has not been indicted because the principal witness, and the only one by whom an important part of the case can be proved, is too ill to appear before the grand jury. In respect to the steps taken for removing the prisoner to an asylum, two of the leading physicians of Brooklyn have sworn that he is insane and should be removed. The every day remark that the poor man and the rich one do not fare alike before the criminal courts is only partially true. It may be that violators of

the law who stand high, socially, or are possessed of farm lands situated within the boundaries of a city an abundance of means, very frequently escape pun- are taxed for the support of the city government, ishment for their misdeeds, and that those without the fact that such tax is unfairly burdensome, or friends or money have but little chance of escape that the lands, owing to their distance from the if the evidence is strong against them. But the built-up portion of the city, are not within the reach reason for this apparent injustice is not, as is gener- or protection of particular departments of the city ally believed, because the public authorities fail to government, for the support of which they are do their duty. So far as this is concerned, the taxed, does not render the tax unconstitutional. wealthy or influential offender is often at a disad- In this case, under authority of an act of the Legisvantage, and courts and juries strain a point that he lature of Pennsylvania, the city of Pittsburgh exmay not cheat justice. The reasons why men of tended its boundaries by the aunexation of adjacent means and standing when guilty of crime escape are territory. In this territory was situated a tract of these: First, the offenses they commit as a rule are land used exclusively for farm purposes, and which, those that are made so by statute, such as forgery, on account of its distance from the built-up portion obtaining money under false pretenses, etc. The of the city, was not within the reach of the water, evidence of their acts is usually documentary, within fire, police, and other departments of the city gova narrow compass, and easily repressed or destroyed. ernment. The city, however, for the support of Then the results of these offenses except in these departments, levied a tax on such farm, the rare cases can affect very few persons. Second, amount of which was largely in excess of the farm's those injured by the criminal act are, as a rule, fully annual productive value. It was held that the tax compensated for the wrong done them, and are in- was not unconstitutional. The court sustained its disposed to appear as witnesses, and render it prac- decision by the cases of Weber v. Reinhard, 23 P. F. tically impossible for the public prosecutor to suc- Smith, 370; Philada. Assoc. v. Wood, 3 Wr. 73, cessfully conduct the case. Third, in very many in- and Kerby v. Shaw, 7 Har. 258, where the principle stances the offender is if unpunished reasonably was held that a tax cannot be pronounced unconcertain to lead thereafter an upright life, and punish-stitutional upon the mere grounds of injustice and

ment will be of no benefit to him or to the community, while the disgrace attending it will injure many innocent persons. Wealth may sometimes be used to corrupt witnesses, and social or political position to influence the public prosecuting officers, but the power of these things is felt more outside of the courts than in them.

inequality. The general rule is that a tax must be considered valid unless it be for a purpose in which the community taxed has no palpable interest and where it is apparent that the burden is imposed for the benefit of others. See Sharpless v. Mayor of Philada., 9 Har. 147; Speir v. Blairsville, 14 Wr. 150. Agnew, C. J., and Sterrett, J., dissented, saying that under the doctrine of numerous cases in Penn

sylvania and elsewhere, the tax should not be upheld. See Bradshaw v. Omaha, 1 Nebr. 16; Taylor v.

Porter, 4 Hill, 140; Holden v. James, 11 Mass. 396; Case of Washington Ave., 19 P. F. Smith, 363; Cheany v. Hooser, 9 B. Monr. 330; Covington v. Southgate, 15 id. 491; Morford v. Unger, 8 Iowa, 82; Langworthy v. Dubuque, 13 id. 86; Fulton v. Davenport, 17 id. 404. The case has been taken to the United States Supreme Court upon the question of the constitutionality of the tax under the clause of the fifth amendment to the Federal Constitution which provides that private property shall not be taken for public use without compensation.


The provision in the bankrupt law requiring onethird in value and one-fourth in number of the creditors of an insolvent person to join in the tition for his involuntary bankruptcy has been of very small advantage in preventing the institution of bankruptcy proceedings of this nature. Creditors were in the habit of presenting petitions in which the requisite statements were contained, the parties making them neither knowing nor caring whether they were true nor not. The debtor might show that the statements were not true, but the bankrupt court would not dismiss the proceedings, but would allow time to enable the petitioning creditors to induce enough others to join to make up the requisite number. A different course was how

In the case of Harrison v. Collins et al., decided

ever taken last week in the case of Keller et al., by by the Supreme Court of Pennsylvania on the 8th

the United States District Court for the southern district of New York, and a petition, which was shown to be false in the respect mentioned, was dismissed and proceedings connected therewith set aside.

of the present month, defendants employed one Conner to move certain machinery from a railroad depot to their premises. He was paid a specified sum per day for his work, and his assistants who were employed by him were also paid by the day. In doing the work he left open a coal hole in the


N Kelly v. City of Pittsburgh, 5 W. N. Cas. 324, sidewalk in front of defendants' premises, and plain

on by the tid fell therein, injuring

preme Court of Pennsylvania, it is held that where brought this action. The court held that if Conner

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