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reasonable value thereof. T. agreed to work until coming of aze, a period of six years or more, for M. Having performed the contract, T. may maintain an action quantum meruit for his services. Tousley v. Moore.
session of a check, made payable to the order of a particular person, confers no authority on the drawee to pay the same to the persou having such possession, without the genuine indorsement of the payee. Dodge v. National Exchange Bank.
2. When custom among bankers does not wrongful payment.— The duty of the drawee, upou acceptance of such check, to pay the same only upon the genuine indorsement of the payee named therein, is not affected by a custom among bankers as to the mode of ascertaining the identity of the person indorsing the name of the payee and receiving payment. If the drawee relies upon false representations as to identity, for which neither the drawer nor payee are responsible, he makes payment to a wrong person at his peril. Ib.
FRAUDULENT CONVEYANCE. 1. When voluntary conveyance not void as to future creditors.— A voluntary conveyance of land made by a husband to his wife, through the intervention of a trustee, will not be held void as to future creditors, on the mere ground that the husband subsequently became insolvent. Evans y. Lewis.
2. When it will be held void as to subsequent creditors. Such conveyance will be set aside at the suit of a subsequent creditor, only on proof that it was made with intent on the part of the grantor thereby to defraud such subsequent creditor or creditors. Ib.
3. Action sounding in tort.-One having a valid cause of action, sounding in tort, against such grantor, at the time of such conveyance, upon which an action was subsequently brought and judgment recovered, is to be regarded as a subsequent creditor. Ib.
Change of grade of, entitles adjoining land-ouner to compensation. Where a public higbway has been adopted by a municipal corporation as a street, and used the same as such without change of grade for more than thirty years, and lot-owners upon such street have used reasonable care, discretion, and judgment in making their improvements, with a view to future proper and reasonable change of such grade, and the municipal authorities cause a change of grade in such street to be made, which occasions injury to the lotowner, and the change of grade causing the injury could not, by ordinary care, discretion, and judgment, have been anticipated, such municipal corporation will be liable for the injury. City of Young wn v. Moore.
PATENT RIGHT NOTES. Non-negotiable note not included in act in relation lo.– The act of May 4, 1869 (66 Ohio L. 93), making it il penal offense to take a “promissory note or other negotiable instrument,” not containing the words "given for a patent right,” knowing the consideration thereof to be a patented invention, does not include in such offense the taking of notes or instruments not negotiable. An indictment which does not show that the note or instrument on which it is founded was negotiable, does not show an offense under the act, and may be met by demurrer. State v. Brower.
STATUTE OF FRAUDS. Verbal contract void by, performed by one party: recovery on quantum meruit. -- Although an action cannot be maintained upon a verbal contract not to be performed within one year, yet when such contract has been fully performed by one party, the other hav. ing obtained its benefits, he cannot refuse to pay the
THE PROCEDURE RELATING TO THE COLLECTION OF
SIR– Now that re-codification and "reform" is the order of the day with our legislature, I wish to suggest that a most excellent opportunity is offered for an amendment to the existing system of procedure relating especially to the collection of debts.
Of course, in their broadest scope, all actions arising on contracts are actions to collect debts, but in this communication it is proposed to use the word "debt" in its common significance among business men and traders, i. e., a liability arising out of a sale of goods or other property.
As the law stands at present, it would seem to have been made for the especial benefit of dishonest and failing debtors, and hence for the discomfiture and defrauding of diligent and honest creditors, whenever the latter attempt to recover their claims and debts by an action on contract.
Delay can be interposed, as is known to every lawyer who conducts a commercial practice, and that almost without limit. The defendant mean while prepares for the storm and makes every thing safe and snug by the assistance of a friendly creditor or relative, and before judgment can be entered and execution issued, puts his property beyond the reach of process by an assignment for the benefit of creditors.
If this proJeeding usually carried out the design of the general assignment act, by dividing the debtor's property equitably among all the creditors, it would be well enough, perhaps, and possibly that act gives as beneficial a method of setting up an insolvent's affairs as could be devised and applied by human beings limited and encompassed by their “environment."
Such, however, is not the case. In at least seventy-five per cent of the general assignments made by business houses in this State, I venture to atfirm that the moving power and motive that induced them was an intention to hinder, delay and defraud the creditors, or the majority of them, and to give the debtor a chance to pay off his debts at a small percentage and resume business again in better condition, financially, thav ever before, though perhaps not in his own name.
The bankruptcy laws of the United States were intended to remedy this evil, but the remedy is worse than the disease itself, on account of the attendant expense and procrastination.
So, also, the many forms of action to set aside fraudulent conveyances, fail to secure justice, because of the extreme difficulty in proving the fraud where the debtor has been at all astute or has acted under unscrupulous legal advice. It is unnecessary to go into further details. Few lawyers have failed to notice the fact and comment upon it, but fewer still have ever seriously attempted to propose a remedy; most of them, perhaps (let it be said with bated breath!) pa ying more attention to the fat fees and bills of costs that arise from its existence, than to the furtherance
LOWVILLE, February 8th, 1878. To the Editor of the Albany Law Journal:
SIR — Will you be kind enough to give your opinion in the next number of JOURNAL on the following question:
A was elected commissioner of excise under the provisions of chap. 444 of Laws of 1874, which provides that while holding such office he shall not (among others) hold the office of trustee in an incorporated village. After assuming and discharging the duties of commissioner of excise, he was elected trustee of a village incorporated under the general act, and is now discharging the duties of both offices.
Question: Did his election as trustee vacate the office of commissioner of excise, or did the fact that he held the office of commissioner of excise render him ineligible to the office of trustee, and invalidate his election thereto.
E. MCO. [His acceptance of and qualification for the office of trustee was ipso facto a vacation of the office of commissioner of excise. See People v. Carrique, 2 Hill, 93; Stubbs v. Lee, 18 Am. Rep. 251; S. C., 64 Me. 195; Van Orsdale v. Hazard, 3 Hill, 243; Magie v. Stoddard, 25 Conn. 265.— ED. A. L. J.]
The following decisions were handed down Tuesday,
of the interests of the commercial world, by cutting off the dangers that menace the very existence of most of our honest wholesale firms who, while paying dollar for dollar themselves, are constantly defrauded by the defective operation of the very law that was designed to protect them and give them a just reward for diligence in pursuing their legal remedy for a breach of the debtor's contract of payment. It is even maintained, in some quarters, that there can be no effectual remedy devised, on the principle, I presume, that the law can seldom obviate the natural result of a badly diseased moral state in the community in general. This may be true to a certain extent, but can never be an absolute obstacle or rebuke to legislation, until every means has been tried without success to better the existing methods of procedure.
The question then is, what is the remedy? One method advocated, I believe, by the board of trade of the city of Albany, in a petition to the legislature now in session, is to adopt the Massachusetts practice of beginning all civil actions by attachment of the debtor's property. To my mind this would prove a dangerous weapou in the hands of the dishonest debtor and his allies, as well as for the creditor. What would, in my judgment, be a much safer and surer expedient, is the very simple one of amending the sections of the Code relating to the commencement of actions upon contract by inserting a provision that, at the time of the service of the summons and notice or complaint, a copy thereof should be filed and properly docketed in the office of the clerk of the county where the defendant resides or has property, and that thereby a lien should be created for the amount of the claim. That this lien should extend to: First, the personal property of the debtor; second, if not enough personal property to cover it, then to his real property, and should continue until final judgment, unless the defendant gave a sufficient undertaking, such for instance, as the present undertaking by defendant to discharge au attachment, securiug the payment of the debt.
This, of course, could be arranged so as to supply the necessary guards and checks upou unfounded claims, and while open to many objections, would still prove a valuable and efficient remedy for the existing evils. At any rate, I venture to suggest it in the hope that some one will give the whole questiou a thorough examination, and perhaps stir up enough public sentiment to induce the legislature to attempt some such reform. By the way, since Blackstone's theory of property, arising out of possession, has been exploded, and is now generally displaced by the sounder views of the best jurists and political economists, that it originated and still originates in labor, could not a very comprehensive argument be made that the above proposed amendment would be nothing more than an extension of the laborer's or creator's lien for the purchase or repair price of the article created or benefited ? Surely it would, as in the mechanic's lien cases, merely substitute the filing and docketing of the claim for the control or possession of the property by the claimant. Vide Williams v. Tearney, 8 8. & R. (Penn.) 58, and many other cases.
But there must be a limit to this communication, and though that branch of the subject is tempting, it must be left to some one else to elaborate hereafter. What this letter was meant to do was merely to open up the question for your readers to consider. Yours, etc.,
T. C. BECKER. BUFFALO, N. Y., Jan. 29, 1878.
COURT OF APPEALS DECISIONS. THE
, Judgment atfirmed, with costs -- King v. N. Y. Central, etc., Railroad Company; Eighmy v. Barker; Reid v. Sprague; Merchants’ Bank of Canada v. Griswold; McKay v. Barnes ; Grady v. Crook ; Scofield v. Doscher. - Order affirmed, with costs – In re petition of Littman to vacate assessment.- Appeal dismissed, with costs - Mackay v. Lewis; People ex rel. Linney v. Campbell; People ex rel. McCone v. Green.
Motion to dismiss appeal granted, with costs of appeal to tinie of motion, and $10 costs of motion Bensen v. Perry. - Motion to dismiss appeal denied, with $10 costs Beunett v. Austin. Judgment reversed and new trial granted, costs to abide event Harrison v. Glover; Parr 2. President, etc., of Greenbush. Order of General Term reversed aud judgment ou verdict affirmed, with costs – Evans v. Clevelaud.—Judgment of Supreme Court reversed, so far as it awards costs to the appellant, and modified by directing a feigned issue to be made up and settled, to be tried at the next Circuit Court to be held in Westchester county, instead of remitting the judgment to the surrogate, without costs to either party as against the other in this court - Suttou v. Ray.
NEW BOOKS AND NEW EDITIONS.
BAXTER'S (TENNESSEE) REPORTS, VOLUME I. Reports of cases argued and determined in the Supreme
Court of Tennessee for the Middle Division, at the De-
the part of the reporter, who has to depend upon the sale of the work to remunerate him for his services and expenses. The cases are of the year 1872 and 1873, but the succeeding volumes, which will be given as rapidly as the support furnished by the profession
will encourage, will bring the series as rapidly up to the zen, and the reading of the very able discussion of it current decisions as is practicable. The head notes are contained in this little pamphlet cannot fail to be of carefully prepared and accurate, and Mr. Baxter has great benefit. The laws at present existing fail to produced a volume tbat he need not apologize for. check crime, but this is not the chief objection to them. Among the cases of value appearing here we notice When a penalty is inflicted under them it is liable to these: Fritz v. State, p. 15; a statute forbidding the fall upon the wives and children of the criminal with sale of "spirituous liquors” on Sunday, held, not to more severity than it does upon the criminal himself. forbid the sale of wine. Hennessy V. Mills, p. 38; The criminal is confined in prison, but he is clothed, the want of jurisdiction in a United States court to fed and warmed, and in many instances he is not grant a discharge in bankruptcy may be set up to de- compelled to do any labor. His family, however, feat the effect of the discharge in a State court. Marks suffer because their support is taken away. Exv. Borum, p. 87; killing a thief, while committing petit Governor Seymour says, “The way we deal with crime larceny, no attempt being made to arrest him, is unjusti- is a reproach to our civilization. We shall have no refiable, as in an action for damages for such killing, the form until we get the people of our country to look into act of the thief will not relieve the defendant on the
our system. The work of Mr. Spencer will lead men ground that the deceased contributed to his death. Cain to think upon these subjects." v. Southern Express Co., p. 315; a recovery cannot be had on a note given for the purpose of compounding a The Solicitors' Journal thus speaks of the growth of felony. Planters' Ins. Co. v. Sorrels, p. 352; it does English law during the past year: As to the growth not avoid the policy of insurance upon a house in- of English law during the year, there is little'to be sured as a dwelling-house that it was, after insurance, said. The last session produced several important occupied as a boarding-house. Mayor of Nashville v. administrative acts, such as the Prison Act and the First Nat. Bank, p. 402; to maintain a suit upon an Solicitors' Examination Act; but, as regards alterainterest coupon of a city bond the bond need not be tions in the substance of the law, it was almost a produced. The index is fair, and the book is well blank. There were two or three comparatively small printed and bound.
chang in real property law, amendment of the
Factors' Acts, and a useful consolidation of the POWELL'S ANALYSIS OF AMERICAN Law, SECOND Settled Estates Acts, but little more. Nor can we EDITION.
point to many judicial decisions of wide-reaching Analysis of American Law, By Thomas W. Powell, Second scope or great importance. The recently devised docEdition.. Philadelphia, J. B. Lippincott & Co., 1878
trine of the fiduciary relationship of the promoter The author of this work, in his preface, says that the
has been again laid down; and the doctrine of convolume " is intended only as an outline of the law
tempt of court, which at one time threatened to as a first book for those who are disposed to make it a
assume alarming proportions, has been opportunely study." As a guide to the student, it must prove of
checked by the Court of Appeal, which, in reversing value, though as an elementary work, it is not needed
a singular decision of Vice-Chancellor Malins, stated by those who have the treatise of Chancellor Kent
that the exercise of this arbitrary jurisdiction ought upon American law. It opens with an introduction
to be most jealously and carefully guarded;" that a containivg a chapter on the study of the law, one upon
court “ought not to resort to it except in cases the law in general, and a third upon the application of
where no other remedy is to be found;'! and that it was the law, and the extent of territory of the United
“a power which ought only to be used in extreme States. The body of the work is divided into four
cases."It is in lengthy criminal inquiries and in ecclesibooks, the first relating to public rights and law, the
astical law cases that the year has been mainly memorsecond to private rights and law, the third to private
ble. The case of Clifton v. Ridsdale has probably setwrongs and civil remedies, and the fourth to crimes, misdemeanors and their punishments, the well-known
tled for some time the questions as to external observ
ances; and the case of the Rev. Arthur Tooth, who, divisions of Blackstone being, as will be seen, adopted.
after being “attached by his body until he should The book is carefully written, and the statements of
have made satisfaction for his contempt," succeeded principle appear to be correct. The law given, except when relating to Federal matters, is that of the State
in placing his heel on the neck of Lord Penzance, has
brought home to the public at large a profound couof Ohio, so that the work for general readersscannot be
viction of the mysterious uncertainty of ecclesiastisafely used out of that State. The student, who is ex
cal law." pected to use the work only as a guide or in connection with other standard treatises, will, however, not be
Sumner, in one of his letters to Judge Story, related misled. The practitioner everywhere will find the book
this of Bompas, senior leader of the Western circuit: a valuable aid in refreshing his mind upon the first
* In argument he is very earuest and noisy, sometimes principles of jurisprudence. The present edition con- confused. Chief Justice Tindal was once asked if tains very few changes from the first one, as in an
he thought Bompas a sound lawyer.' "That will deelementary work such as this, there is little call for pend,' said the Chief Justice, ‘upon whether roaring changes. The book has a fair index and is well priuted.
is an unsoundness.'
The Journal of Jurisprudence and Scottish Law ESSRS. Appleton and Company have reprinted in Magazine, for February, contains only two articles
of interest outside of Scotland. The subject of a pamphlet form Herbert Spencer's essay on Prison
" Ademption" is ably considered, and the leading Ethics. The reputation of Mr. Spencer as a thinker Scotch and English cases bearing thereon considered and a writer on subjects of this kind is very high, but
and compared. The Liability of Masters and Ser
vants his works have heretofore been in a form that rendered
is the title of the other article referred to,
which is devoted to a discussion of the principles them inaccessible to very many readers. The subject
enunciated in various Scotch decisions. The editorial of the present treatise is one that interests every citi- matter is, as usual, interesting.
The Albany Law
ALL communications intended for publication in the
should not pass the amendment in any different LAW JOURNAL should be addressed to the editor, and the form, or provide that the people shall vote upon it name of the writer should be given, though not necessa
in any different form than the one in which it came rily for publication.
from the legislature of 1877. According to the Communications on business matters should be ad- views of the counsel, whatever is proposed under dressed to the publishers.
article 13 of the Constitution, and agreed to by the first legislature as a single and entire alteration of, or addition to, the Constitution, though it may be
made up of several propositions, constitutes an ALBANY, FEBRUARY 23, 1878. amendment, and is in itself one whole and complete
thing, and must be acted on by the subsequent legisCURRENT TOPICS.
lature and by the people as one whole and complete
thing. They are of opinion, also, that if the propoHE
seven statutes, three of which only are public rately to the people, those adopted could not be and general statutes. Of these, the first makes an
regarded properly as a part of the Constitution. appropriation for continuing work on the New Capi. Upon this point they cite Cooley on Const. Lim. 304, tol
, the second extends the time for the collection of 3d ed. Opinions of Judges, 6 Cush. 573; Collier v. taxes and the other makes certified copies of all official Frierson, 24 Ala. 100; State v. McBride, 4 Mo. 308. field books, maps, surveys, records, etc., in the It is also claimed that the sixth section of the office of the State Engineer and Surveyor evidence amendment is not independent of the remaining secin like manner as the originals. There is, however,
tions, but forms an inseparable part of them. Whata large grist of bills in the hopper, and the grind
ever may be thought of the arguments advanced in ing out process will soon begin in earnest. When this opinion, the recommendation that the legislature there shall be general acts enough to fill four pages
should abstain from an expedient which would we shall issue them in a supplement. The general raise the troublesome question whether the amendand public laws so published by us will this year be
ments have been constitutionally adopted, ought to more fully annotated than heretofore, and will be have great weight. As the counsel say, it is better accompanied by a list of all acts passed and a full
that the advocates of the amendment openly fail index. Those desiring to receive the supplements
than achieve an apparent half success that would should send their subscriptions therefor to the pub
“confusion in municipal affairs and almost lishers.
endless litigation.” Dr. Spear this week reviews the decisions of
In the legislature during the past week but few Judge Benedict in the extradition cases of Cald
bills of interest were introduced; one providing that well and Lawrence, and very conclusively shows
a mortgage upon the property of a corporation formed them to be bad law, or rather never to have been
under the general law shall not be valid unless the law at all.
consent of two-thirds of the stockholders of the corThe sixth section of the proposed constitutional poration is filed in the office of the county clerk where amendment in relation to municipal government, the property is situated; one providing that in the which was adopted by the legislature of 1877, hav- election of directors of life insurance companies, votes ing provoked a considerable opposition upon ac- cannot be cast on proxies given more than six months count of its supposed limitation upon the privilege previously; and one forbidding the plea of usury to of suffrage, it has been suggested by some, that the be set up in actions by or against executors and adpresent legislature provide for the submission to the ministrators, being all that we notice. A resolution people of that section as a separate proposition, in for the amendment of the Constitution so that memorder that it may not prevent the other sections, bers of assembly shall hold office for two years, at against which there is no popular clamor, from
a salary of $1,000 a year, was introduced in the being sanctioned. The right of the legislature to
assembly. take such a course is questioned however, and the opinion of several eminent counsel has been given The bill forbidding the plea of usury to be set up adversely to the course proposed. The counsel are against executors and administrators above menMessrs. Joseph H. Choate, E. Randolph Robinson, tioned, is a move in the right direction, and ought Wheeler H. Peckham, and Simon Sterne, and the to pass. One of the great objections to the law alHon. George F. Comstock concurs in the conclusions lowing the defense of usury is the temptation it arrived at by them. The opinion is published in the offers to the debtor to commit perjury. A loan of form of a letter to Alexander Hamilton, Esq., of money is made at the regular rate of interest to one New York, and presents what to us appear to be who has no property besides that upon which the conclusive reasons why the present legislature loan is secured. The witnesses of the transaction
VOL. 17. No. 8.
are the borrower and lender, and a friend or relative the present State Constitution was adopted, been of the borrower. If the lender dies, and in an ac- equal to the limit allowed, which is five per cent on tion to foreclose the mortgage brought by his per- the assessed value of taxable property. The amount sonal representative, the defense of usury is set up, of certificates which have been issued reaches several the case depends upon the testimony of one un- millions of dollars, a portion of which, however, has friendly to, or possibly interested against the plaintiff. been paid. The trouble seems to have come from This is not merely a possible case, but it is one very the non-payment of taxes by property owners, and likely to occur, and undoubtedly does occur fre- the indebtedness was incurred to meet temporary quently. The law relating to usury is so firmly estab- necessities until the taxes could be collected. lished that there is little hope of its repeal or essential modification, but we are confident the legislature Judge Freedman, in charging the jury in a case will see that it is not permitted to be used as a means tried last week in the New York Superior Court, of fraud and injustice in the manner mentioned. made some pertinent remarks upon the interesting
subject of the value of a lawyer's services. LitiThe connection of riches and insanity has been
gants, and those who have occasion to apply to the forcibly made manifest by several cases pending be
profession for service or advice, are too apt to estifore the courts of New York during the past month
mate the worth of what is done for them by the time or two. The Lord-Hicks' case and that of Miss
occupied in doing it, and, therefore, are very much Dickie have given the newspapers an opportunity to
dissatisfied, when a charge of a considerable amount attack the laws relating to lunacy and the estates of
is made for what apparently occupied only a few persons of unsound mind, and to propose all sorts
hours or a few days of the counsel's time.
But as of changes therein for the purpose of protecting
Judge Freedman says : those whose property is liable to tempt their immediate relatives to construe eccentric acts into evi
"To become proficient in the necessary knowledge
relating to all these matters involves years of selfdences of insanity. That the laws need amendment
denial, close application and devotion, and a study is undoubtedly true, but they should not be so altered of almost a life-time. A lawyer's compensation is, as to take from the immediate relatives of persons
therefore, not to be measured merely by the time he believed to be insane all right to appeal to the courts
actually spends in the discharge of his duties. An
advice given in a short interval, but founded upon of law and authorities for power to control such per- years of previous acquaintance with the question insons and their property. While the immediate rela- volved, may, in an important case involving large tives of an individual may not always be solicitous
interests, be worth quite a sum of money." after his welfare, as a rule they are so, and they cer- The popular feeling in reference to lawyers chartainly are more to be trusted than a stranger who ges is, however, to some extent encouraged by the volunteers to interfere. The subject is one of diffi
action of certain members of the bar who, to secure culty, and under the best devised systems will occur business, underbid their brethren and certain others cases of wrong and oppression.
who habitually make no charge for advice even to
those able and willing to pay. The appointment of Judge Blatchford of the District Court to be judge of the Second Judicial Circuit will meet the approval of every one.
NOTES OF CASES. generally conceded that the higher judicial places should be filled by men who have had judicial ex
N the cases of Johnston v. Commonwealth and Rolperience; but in appointing the Federal judiciary, land v. Commonwealth, recently decided by the this principle has been frequently disregarded. A Supreme Court of Pennsylvania, and reported 5 conscientious judge, who performs his duty, has no
W. N. Cas. 49 and 53, some interesting questions in time, and, as a rule, no disposition to look after his
relation to the crime of burglary are discussed. Rolown advancement, and thus the vacancies in the
land, one of the defendants, who had, by a systehigher courts are sometimes given to inexperienced
matic course of friendly and business dealing, men who take the trouble to seek after them. The
gained the confidence of the cashier of a bank, present executive, however, in his selections seems
called one evening with Johnston, his confederate, to have adhered to the proper rule.
at the cashier's residence, which was in the bank
building, and rang the door-bell. Being informed The Supreme Court of Illinois have just decided by the person who opened the door that the cashier in the case of Law v. People ex rel. Huck, that the had gone out, Rolland stated that his companion certificates of indebtedness issued by the city of wished to transact some business with the cashier, Chicago in excess of the constitutional limit of mu- and that they would call again later in the evening. nicipal indebtedness are void, and that the city au- On their return, some twenty minutes afterward, thorities have no power to levy a tax or make an ap- the cashier having come in, they were admitted propriation to pay such certificates. It appears that without remark. As soon as they were alone with the bonded debt of the city has at all times, since the cashier they attacked and overcome him and
It is very