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Any married female may takes * and hold 1. Resolved, That the committee on legal biogto her sole and separate use, and convey and devise raphy be requested to prepare for presentation at the real and personal property, and any interest or estate next annual meeting of the association, brief memotherein, and the rents, issues and profits thereof, in the rials of the lives and characters of any distinguished same manner and with the same effect as if she were un- members of the Bar of this State who may have died married, and the same shall not be subject to the disposul between the date of the organization of this associaof her husband, nor be liable for his debts." 4 Ed- tion and such next annual meeting. monds' Statutes, p. 513, $ 3. It is believed that the real object of legislative enact

II. Resolved, That upon the death of any member of ment on this subject has been to destroy the legal

this association it shall be the duty of the member or unity of husband and wife where their respective

members vi ihe committee on legal biography who rights of property are involved, and that such object

shall reside in the district where such deceased memhas been attained by the passage of what are called the

ber resided, to transmit to the chairman of such comMarried Women's Acts.

mittee, a professional obituary of suitable length, The only reason why, prior to 1848-9, and under the

for reading at the annual meeting of the association Revised Statutes, which provides “that every estate

and for publication among the proceedings of the asso

ciation. granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless ex

III. Resolved, That there shall hereafter be pubpressly declared to be in joint tenancy" (1 Edm. Stat.

lished in the yearly proceedings of this association 676, § 44), a conveyance of an estate to husband

a brief obituary notice of such members and such highand wife did not vest it in them as tenants in

ly distinguished lawyers and judges of this State, not common was, because husband and wife

members, as shall have died during the current year. deemed one person in law, had no separate existence, could hold no separate title to lands, their several

LOCAL BAR ASSOCIATIONS. identity was merged in their unity, their rights and interests were incapable of severance during cov- IV. Resolved, That the several district committees erture.

of the executive committee be requested to use their The wife's right of property, under the statute of influence to promote the formation of local bar asso1849, where land is conveyed to her singly, differs toto ciations in their respective districts. cælo from her common-law rights. It is hers absolutely. It is a legal estate, and in respect of it, she and her hus

ABUSES AFFECTING THE ADMINISTRATION OF JUSTICE. band are two distinct persons. Does the mere insertion of her husband's name as a co-grantee in the courey- V. Resolved, That the committee on grievances be ance reunite this separate relation? Suppose a convey

requested to inquire and report at the next annual ance is made to an unmarried female and another per

meeting of the association, whether any, and if so, son, who subsequently intermarry. They are tenants

what abuses now exist in any of the courts of record in in common when the conveyance is made. Do they

this State affecting the administration of justice or the cease to be such because of the supervening unity of interests of the legal profession in either of the followperson? Why does she not "take" the same estate af

ing matters: ter marriage as before, when the statute says she shall

1st. The appointment of referees, the hearing of take and hold any interest or estate in land in the

matters before referees, or the fees and expenses of same manner and with the same effect as if she were un

proceedings in references. married ?” (I cannot favor my friend with any satis

2d. The manner of publication of legal notices or the factory answer to be found in the authorities cited by him.) I think the question has not been squarely met

expenses thereof. in any reported decision, except perhaps in Miller v.

3d. The fees of registers, sheriffs or county clerks for Miller, above referred to, and may be fairly claimed

searching or exemplifying legal records in their official as an open one until the Court of Appeals shall set

custody. tle it.

4th. The preservation or classification of records of It seems pertinent to add, that the reasons which conveyances or judicial proceedings by the registers, originated this peculiar tenancy of per tout et non per clerks or other officers having charge thereof. neg, in England, have no existence with us. An

5th. The charges of attorneys and counsel in the con. adherence to the old doctrine is a check on the trans- duct of legal proceedings and in the management of mission and alienation of property, at war with our office practice. system. It is a relic of the feudal institution which And that such committee also report, if such abuses has lost its vigor in our changed relations. We be- are found to exist, what remedies if any, either by legislieve that the laws passed, as their title indicates, for lation or rules of court, or both, or otherwise, they the benefit and protection of married women, were deem ad risable in the premises. designed to entirely obliterate it.




COMMITTEE ON LEGAL BIOGRAPHY. 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:

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 pol. icies of insurance.

2d. The law exempting the master from liability for

CORRESPONDENCE. injury to his servant occasioned by the negligence of a fellow servant.

ASSUMPTION OF MORTGAGES BY GRANTEES. 3d. The law relating to fraudulent misappropriation of partnership property, by one partner, without the

To the Editor of the Albany Law Journal: knowledge or against the will of other partners.

SIR - In last week's issue you refer to the injustice 4th. The law relating to the notice to bona fide pur

of the rule holding a grantee of mortgaged premises chasers or mortgagees of lands by registration of writ- assuming the mortgage liable for deficiency. It is ten instruments, especially in large cities.

doubtful if the legislation proposed to meet this (ap5th. The fees of jurors or witnesses serving in the parent) injustice, viz.: to require the signature of the trial of causes.

party claimed to be liable as a condition precedent of 6th. The fees of stenographers for copies of minutes

his liability, would be effectual, as the result would of testimony taken on the trial of causes.

be to require (as used to be the practica some years And that such committee report at the next annual ago) the signature of the grantee in every instance to meeting of the association its views upon such sub

deeds containing an assumption clause, and if such jects.

were the case eager purchasers would be compelled to

and would assume the obligations of their grantors as VII. Resolved, That it be also referred to the com- often as hitherto. But quere ? as to the justice or mittee on law reform to inquire and report to this as- equity of the rule suggested by you, of making each sociation at its next annual meeting whether any, and assuming grantee liable only to his immediate grantor ? if any, what legislation is necessary and practicable in To practically enforce such a rule, would it not reorder to diminish the labor, expense and risk, now quire to fix the liability of such assuming grantee, that involved in the transfer of real estate in the large such immediate grantor be first damnified, and the cities of the State upon sale or mortgage; by reason remedy of the mortgagee against him be first exof: (1) the decisions of the courts under the recording

hausted? Is not this putting the cart before the acts in respect to constructive notice to purchasers

horse? Would it not be more equitable to reverse the and mortgagees (see Ring v. Steele, 3 Keyes, 450 ; rule and hold assumers of mortgages equally liable Tejft v. Munson, 57 N. Y. 97; Dusenberry v. Hul- with the original boudsman, but in the inverse order bert, 59 id. 541; Washburn v. Burnham, 63 id. 132); (2) of assumption, and requiring the return of an executhe manner of making up and preserving records

tion nulla bona against each assumer before giving showing jurisdiction and judgments in the surro- the right of execution against his grantor? And would gate's court and other courts of record in this State not this be more in harmony with the rule recognizing affecting titles to real estate; (3) the various liens the grantor after conveyance to the assuming grantee, imposed upon real estate by statute; (4) the labor and in the light of a surety or guarantor, and such grantee fees of officials and quasi officials necessarily employed as the principal debtor? You speak of the hardships to search and give certificates respecting taxes, assess

of assumers. I think the original bondsmen and ments, and other liens upon real estate; (5) also any

mortgagors are more to be pitied, years after they have other matters in the judgment of the committee ger- parted with their property, and after it has passed mane to those hereinbefore specifically referred to.

through many hands and they suppose their mort

gages paid, perhaps have forgotten all about them, REMITTANCE OF DUES TO MEMBERS ELECT.

they are called upon, possibly, in a period of unusual Resolved, That all members elect of this association,

depression, to pay deficiencies on nearly every mortwho shall, besides their initiation fee, pay their annual

gage they ever executed and had not seen satisfied. Let dues for the year 1878, be deemed full members, and

me illustrate in another form: A, in 1870, owning a that notice hereof be given by the treasurer to all such

lot worth $4,000, on which is a house worth $10,000, members elect.

obtains a loan of $8,000 on the premises, on his bond

and mortgage, payable in three years, and containThe following resolution was adopted at a meeting

ing the usual insurance clause, and shortly thereof the executive committee of the New York State

after conveys to B, who assumes the mortgage, and Bar Association, held at the city of New York, Jan

who in 1874 conveys to C, who does not assume. uary 25, 1878.

Cforgets to renew the insurance, and a day or Resolved, that the chairman of the executive com

two after the building is wholly destroyed by fire. mittee appoint a committee of five from the associa

The mortgagee forecloses and A has to pay a detion to make arrangements for the annual meeting in ficiency arising from no fault of his own but exclusiveNoveniber, with power to add one from each district; | ly from the neglect of others. Certainly as between and they shall have power to prepare an order of exer- A and B, should not the latter be compelled to pay cises for the annual meeting; invite the attendance of before A? the honorary members, and any distinguished lawyers It seems to me that legislation is more needed to from abroad; invite the reading of theses, or the de

protect the mortgagor than the assuming grantee. It livery of addresses by designated persons on topics to bas been supposed that it was well settled that time be assigned by the committee; and take such other given by the mortgagee to the assuming grantee withsteps as they may deem best to secure a large attend

out the knowledge or consent of the mortgagor reance of the profession, and give permanent interest to

leased the latter, but the General Term in the second the proceedings.

district in Meyer v. Lathrop, 10 Hun, 66, held the conIn pursuance of the foregoing resolution, the chair

trary, and that the original obligor always remained man appointed the following named committee:

liable to the mortgagee, and I understand the case has Isaac Grant Thompson, Albany; Elliot F. Shepard, just been affirmed in the Court of Appeals, but on New York city; E. C. Sprague, Buffalo; Joshua M.

what ground I have not been informed. J. C. L. Van Cott, Brooklyn; George J. Greenfield, Richmond.

NEW YORK, May 13, 1878.


Mass, has a case

which would have gladdened


late Judge William Kent, son of Chancellor Kent, and

subsequently became associated with Judge Henry DESTY'S FEDERAL CITATIONS.

E. Davis. After remaining in New York City Federal Citations, an alphabetical table of English and two years he moved to Geneva, where he made his

American cases cited in the opinions of the courts of the home for the rest of his life. He was actively enUnited States, stating the points as to which they are cited, and showing the effect of such citation by letters and char

gaged in the labors of his profession up to the last actere. By Robert Desty, author of “ Federal Pro

week of bis life. As a lawyer he ranked very high, cedure," "California Citations," etc. San Francisco : Sumner Whitney & Co., 1877.

and his decisions delivered while in the Court of ApHIS

peals placed him among the foremost jurists of his show the value as authority of every case referred to

time. He was averse to politics, and did not seek in the decisions of the various Federal courts. It em

official position. He was believed at the time of his braces all the American and English cases which have

death to be the oldest lawyer in practice in the State. been cited, together with the subject-matter, or points to which they have been cited, with an indication of

NOTES. their value as authority in the courts mentioned. The work will prove valuable to the bench and bar in pre- the hearts of the old persecutors of witches. The paring for the argument or decision of cases on trial,

Boston Advertiser says: “A bill in equity has been as it will readily show whether a case cited has been

filed in the office of the clerk of the courts at Salem, either acknowledged as authority bythe Federal courts, by Miss Lucretia Brown of Ipswich, against Daniel H. or has been received as authority on a single point but Spofford, formerly of Salem, but now of New York, denied as to another, or has been doubted, limited or

in which she sets forth that she is now suffering from entirely overruled. The preparation of the book must a serious spinal disease, caused by the mesmeric influhave required a vast amount of labor and care, but it

euce which Spofford exerts over her, and she petitions has been thorough and accurate. We are confident the Supreme Judicial Court for an injunction against that the work will be welcomed by those for whose Spofford, to restrain him from further exerting his inuse it is designed, laud that they will find it a very fluence upon her. The case is a somewhat curious valuable aid in their professional labors. The book is one, and has excited considerable interest in the comexcellently printed on fine paper and is finely bound.munity. Spofford professed to cure diseases by the

laying-on of hands and mesmeric influence. It apMORGAN'S LEGAL MAXIMS.

pears that he was a pupil of Mrs. M. B. Eddy, of Lynn, An English fversion of Legal Maxims, with the Original | who claims to have acquired the art of healing all dis

Forms, alphabetically arranged, and an Index of | eases by a special revelation. She agreed to impart Subjects. By James Appleton Morgan, author of "The Law of Literature." Cinoinnati : Robert

her knowledge to Spofford for $100 cash and ten per Clarke & Co., 1878.

cent on his future accruing profits. The $100 was paid, The tendency to embody principles of law, and in

but the royalty has not been, and Mrs. Eddy claims deed of every other science, in what are known as

that Spofford has set up in the practice of her especial maxims has been common in every, age. The an

system, and has interfered with her in several of her cient works upon moral science were very usually

cases, to the great injury of her patients, Miss Brown's in' the shape of a collection of maxims, and very

case being one of those in which Spofford has exerted

a counter influence. It does not appear that Spofford many of the fundamental principles of political science are known to most people only in the form of maxims.

was ever called professionally to Miss Brown, but that The work before us is an to bring together from New York. The issue of the application will be

he exerted his influence from a distance, and does now all known legal maxims. These are given in their

watched with considerable interest. original Latin or law-French form with the English translation and a reference to the place where each

The enterprise started by Mr. F. H. Norton, of this first appears. The maxims are arranged alphabetically city, for furnishing lawyers with any desired informa

tion from the State Library, seems, from its success, under the first word of the Latin or French form, and to meet a want long felt." To be able to have auas a still further means of facilitating reference, an in- thorities hunted up, briefs prepared, opiuions copied, dex of subjects is also given. This is the most exten

cases examined, etc., must be of good service to one sive collection of maxims we have met with, the num

who has not a large library at his command. ber contained in the book being two thousand eight At the annual election of the New York Law Instihundred and eighty-two, and we suppose every thing tute, held on Monday, May 13, 1878, the following of value in the early writers will be found here..

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; OBITUARY.

Recording Secretary, Joseph S. Bosworth ; CorrespondSAMUEL A. FOOTE.

ing Secretary, Benjamin D. Silliman; Librariani aud

Assistant Treasurer, Aaron J. Vanderpoel; Library Samuel A. Foote, formerly Judge of the Court of Ap- Committee, Edmund Terry, Thomas H. Rodman, peals of this State, died at Geneva, N. Y., on the 11th

Samuel Brown, Edward Patterson, James C. Carter, instant. He was bor at Watertown, Conn.,Dec.19,1790, Wheeler; Committee on Jurisprudence, William M.

William Watson, Thomas M. North and Everett P. and after a course of academical study entered Union Evarts, George De Forest Lord, Edwin W. Stoughton, College, where he graduated with distinguished hon- John E. Burrill, Charles F. Stone, Enoch L. Fancher ors. He at once chose the law as his profession, and

and Edinund Wetmore; Committee on Censorship,

Erastus C. Benedict, Charles F. Southmayd, John pursued his legal studies in Albany. Upon being ad- McKeon, Clarence A. Seward, Benjamin T. Kissam, mitted to the bar be rapidly rose to distinction in his Henry D. Sedgwick, William H. Arnoux, Rocellus S. profession. While yet young he was elected District Guernsey and Montgomery H. Throop. Attorney of Albany county. In 1825 he moved to New

Up to Thursday the 16th inst. the Governor had York city and entered into a law partnership with the sigued 286 acts of the Legislature.

The Albany Law Journal.


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All communications intended for publication in the

in that State upon the designated agent gives that LAW JOURNAL should be addressed to the editor, and the court jurisdiction. name of the writer should be given, though not necessarily for publication.

The Senate committee on the judiciary, on the Communications on business matters should be addressed to the publishers.

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 ALBANY, MAY 25, 1878.

before any court of the United States on account of

The reason given for the adverse report was CURRENT TOPICS.

that there is now no law excluding females from the THE United States District Court for New Jersey,

bar in the courts mentioned, and therefore there is

no necessity for the passage of the bill. in this number, decides that a State which has procured the rendition under the act of Congress of a

A Brooklyn clergyman during the delivery of a fugitive from justice who has fled to another State, sermon on Sunday last, charged the district-attorney may put him on trial for an offense other than the of Kings county with a violation of his duty as a one for which he was delivered up, and can try him public prosecutor, in not procuring an indictment even though he was surrendered without legal against a young man named Johnson, who was authority. The principle which governs the law of confined in the jail of that county upon a charge extradition between the States of the Union is in

of assault with intent to kill, and in permitting this respect different from that which governs when steps to be taken for the transfer of the prisoner, an alleged fugitive from justice is surrendered by who is alleged to be insane, to a lunatic asylum. one nation to another. Only a few offenses are con

The most serious part of the charge was that sidered of sufficient gravity to justify the denial of the sum of $25,000 had been expended by the the privilege of an asylum, which most modern friends of Johnson in securing this result outnations give to those fleeing from other countries, and side of the amounts paid the counsel who appeared the various extradition treaties particularly define for him, and the congregation before whom the these. But between different parts of the same

sermon was delivered were left to infer that the

As the sercountry there can be no privilege of asylum, and public officials had shared in this sum. the constitutional provision in reference to the

mon contained a large amount of clap-trap talk delivering up of fugitives includes every crime and about the favoritism shown in the administration of


what not a few specified ones, as do the extradition justice to the rich, the general criticisms treaties.

had been done would have attracted little attention,

and the remarks of the reverend gentleman would In the case of Ex parte Schollenberger, just decided have been passed by as a harmless tirade against a by the Supreme Court of the United States, and class of individuals whom certain of the clergy which will appear in our next issue, an important think they have the right to denounce ad libitum. question of jurisdiction was passed upon. By the But the specific charge of the improper expenditure United States statute of 1875, determining the juris- of money brought one of the speaker's hearers to diction of the Federal Circuit Courts, it is provided his feet, and the speaker was informed promptly that no civil suit shall be brought before either of that what he had said was not the fact, and that he said courts against any person by any original pro- knew it. The district-attorney, in a letter published cess or proceeding in any other district than that in the Brooklyn papers, explains fully and satisfacwhereof he is an inhabitant, or in which he shall be torily what has been done in the Johnson matter found at the time of serving such process or com- and the reasons therefor, and denies the principal mencing such proceeding. By a statute of Penn- slander. The prisoner has not been indicted because sylvania non-resident insurance companies, as the principal witness, and the only one by whom an condition of doing business in that State, are important part of the case can be proved, is too ill required to designate an agent on whom process to appear before the grand jury. In respect to the against them therein may be served, and to stipu- steps taken for removing the prisoner to an asylum, late that such service shall have the same effect as two of the leading physicians of Brooklyn have personal service. The court holds that a company

sworn that he is insane and should be removed. making such a designation and stipulation is | The every day remark that the poor man and the “found” in Pennsylvania under the Federal statute, rich one do not fare alike before the criminal courts and the service of process from the Circuit Court | is only partially true. It may be that violators of


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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 annexation 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

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 commu- inequality. The general rule is that a tax must be nity, while the disgrace attending it will injure considered valid unless it be for a purpose in which many innocent persons. Wealth may sometimes be the community taxed has no palpable interest and used to corrupt witnesses, and social or political posi- where it is apparent that the burden is imposed for tion to influence the public prosecuting officers, but the benefit of others. See Sharpless v. Mayor of the power of these things is felt more outside of the Philada., 9 Har. 147 ; Speir v. Blairsville, 14 Wr. courts than in them.

150. Agnew, C. J., and Sterrett, J., dissented, saying The provision in the bankrupt law requiring one

that under the doctrine of numerous cases in Pennthird in value and one-fourth in number of the sylvania and elsewhere, the tax should not be upheld. creditors of an insolvent person to join in the pe

See Bradshaw v. Omaha, 1 Nebr. 16 ; Taylor v. tition for his involuntary bankruptcy has been of Porter, 4 Hill, 140 ; Holden v. James, 11 Mass. 396 ; very small advantage in preventing the institution

Case of Washington Ave., 19 P. F. Smith, 363 ; of bankruptcy proceedings of this nature. Cred

Cheany v. Hooser, 9 B. Monr. 330 ; Covington v. itors were in the habit of presenting petitions in Southgate, 15 id. 491; Morford v. Unger, 8 Iowa, 82; which the requisite statements were contained, the | Langworthy v. Dubuque, 13 id. 86 ; Fulton v. Darparties making them neither knowing nor caring enport, 17 id. 404. The case has been taken to the whether they were true nor not. The debtor might United States Supreme Court upon the question of show that the statements were not true, but the the constitutionality of the tax under the clause of bankrupt court would not dismiss the proceedings, the fifth amendment to the Federal Constitution but would allow time to enable the petitioning cred which provides that private property shall not be itors to induce enough others to join to make up

taken for public use without compensation. 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 the United States District Court for the southern dis- / by the Supreme Court of Pennsylvania on the 8th trict of New York, and a petition, which was shown

of the present month, defendants employed one to be false in the respect mentioned, was dismissed

Conner to move certain machinery from a railroad

depot to their premises. He was paid a specified and proceedings connected therewith set aside.

sum per day for his work, and his assistants who

were employed by him were also paid by the day. NOTES OF CASES.

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

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

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