Gambar halaman

having been given for the benefit of H. as cestui que trust, she had a claim for protection, and S. could not interfere with her right. The interest belonged to her during her life, and after her death S. would be entitled to the principal Judgment below affirmed. Reid v. Sprague, appellant. Opinion by Miller, J. [Decided February 12, 1878. Reported below, 9 Hun, 30.]

other claim. Judgment below affirmed. Wright v. Wright, appellant. Opinion by Miller, J. [Decided January 15, 1878.]

REPLEVIN. Property tuken under warrant for tax cannot be replevied.- Where the property of plaintiff was taken by the defendant by virtue of a warrant for the collection of a tax, it cannot be replevied (2 R. S. 522, S 4; Code, 207, subd. 4), though the warrant may have issued erroneously or irregularly, if on its face it gave authority to the officer to collect the tax or assessment. Judgment below affirmed. Troy & Lansingburgh R. R. Co., appellant, v. Kune. Opinion per Curiam. [Decided February 19, 1878. Reported below, 9 Hun, 506.)



Construction of : suspension of power of alienation.By a provision in a will testator's estate was to be divided in three equal shares, one to be held in trust for each of his three children during life, and upon the decease of the child who should first die, the share was to go in fee to the lawful issue, or if none, then to be divided into two equal sub-shares, one of which should be held in trust for each of the surviving children during life, and at the death of the child who should next die, such sub-share should go in fee to his issue, and if none, to such persons as would be heirs at law if the surviving child were dead. A provision of the same character was made as to the child who should next die, and one of his shares was to go to the lawful issue of the child first dying, if any, and if none, to testator's heirs at law; the other share to go to the surviving child, and upon his death to vest absolutely as provided. Held, that the provisions were not in conflict with the statute forbidding the suspension of the power of alienation beyond two lives (1 R. S. 723, $ 15; 773, $ 1), and were valid. Judgment below affirmed. Moore, appellant, v. Hegeman. Opinion by Miller, J. [Decided February 5, 1878.)


The following decisions were handed down Tuesday,

Delivery to carrier when sufficient: what constitutes acceptance.-Defendant, with others, who were directors of a fair association, assembled in defendant's banking-house in Jackson, Mississippi, verbally ordered of defendant's agent, who was there, certain goods of the value of over $800, which were to the knowledge of the agent to be used as prizes for distribution by the fair association. Defendant directed the goods to be sent by the Adams express to Jackson. The goods were directed to defendant at Jackson and delivered to the Adams Express Company for transportation there. There was evidence that defendant directed the goods to be charged to him, which was contradicted, and it was shown that when the goods reached Jackson they were delivered to a director of the fair association, who was in the room with defendant when the goods were ordered, and assisted in selecting them, and defendant knew of this and made no objection thereto. Held, (1) that delivery to the express company constituted delivery to defendant, but not acceptance, but that (2) the evidence was sufficient to justify a jury in finding an acceptauce by defendant. Judgment below affirmed. Wilcox Silver Plate Co. v. Green, appellant. Opinion by Rapallo, J. [Decided January 15, 1878. Reported below, 9 Hun, 347.]

STATUTE OF LIMITATION. Does not run against claim against bankrupts.-The assignee of a bankrupt stands in a position of trustee for his creditors, and the statute of limitation does not run against their claims against the estate of the bankrupt not barred at the time of the adjudication in bankruptcy. Judgment below affirmed. Van Sachs, appellant, v. Kretz. Opinion by Andrews, J. [Decided February 19, 1878. Reported below, 10 Hun, 95.]

TRUST. When assignee of mortgage held in trust takes subject to trust.-Land was devised to B. in confidence that the income should be expended for the support of H., a lunatic, during her life, and after her death the land was to belong to B. B. conveyed the land to J., taking back a bond and mortgage to secure the consideration, which were conditioned for the payment of the sum secured after the death of H., with annual interest during her life. The interest was paid for twenty years and applied to the support of H. Thereafter B. assigned the bond and mortgage to S. as collateral security for a debt. In an action against S. and others by H. to compel the application of the interest on the bond and mortgage to her support, held that s. had no greater rights than B., and the boud and mortgage

Judgment affirmed with costs – Faber v. Hovey; Hastings v. Westchester Fire Insurance Company; National Bank of Chittenango v. Morgan ; Weston v. New York Elevated Railroad Company; Hazeltine v. Weld; Hevner v. Bliss; Fairfax v. New York Central and Hudson River Railroad; May v. National Bank of Malone. Order affirmed with costs - In re North Thirteenth street, of Brooklyn; People ex rel. Riley v. Watson; Hooley v. Gieve.- -Order granting new trial affirmed, and judgment absolute for defendants on stipulation with costs - Royce v. Watrous.- - Appeal dismissed with costs - Lawrence v. Farley.Judgment reversed and new trial granted, costs to abide event-Ferris v. Van Vechten. Order reversed, and proceedings remitted for rehearing, with costs to appellant - Ulster County Savings Institution v. Decker. - Motion for reargument denied with $10 costs.-In re Ryers to vacate assessment.-Motion denied without costs, unless appellant consent to a dismissal of the appeal — Harris v. Burdett. Motion to dismiss appeal granted with costs of appeal up to time of motion and $10 costs of motion --Sleight v. City of Kingston--Order modified so as to direct a writ of mandamus to issue that the defendants reconsider the resolution passed by them, and amend the same so as not to allow to the county treasurer the sum of $668.57, retained by him for fees ou receiving and paying over the State tax for the year in question, without costs to either as against the other in this court – The People ex rel. Lawrence v. The Supervisors of Westchester county.


is presumed from a loss. Brennan v. Tracy, p. 540. A corporation may be the subject of a criminal libel.



JONES ON MORTGAGES. Cases argued and determined in the St. Louis Court of

A treatise on the law of Mortgages of Real Property. By Appeals of the State of Missouri, from January 10, 1876,

Leonard A. Jones of the Boston Bar. In two volumes. to April 10, 1876. Reported by A. Moore Berry, official

Boston: Houghton, Osgood & Company, 1878. Reporter. Vol. I. $t. Louis: Soule, Thomas & Went- This appears to be a carefully written treatise. It worth, 1877.

is, so far as we are able to judge, correct in its stateCases argued and determined in the St. Louis Court of Appeals of the State of Missouri, from April 10, 1876, to

ments of principle, and it is certainly as full as could July 3, 1876. Reported by A. Moore Berry, official Re- be desired both in text and citation. The author has porter. Vol. II. St. Louis : Soule, Thomas & Wentworth, 1878.

given not only the common law with the modifications

generally existing, but has stated in detail the law of THE St. Louis Court of Appeals, though it has been

each State upon the more important divisions of the in existence only a little over two years, has al

subject in which there is a want of harmony. As to ready taken a high position among the tribunals of the

the citations of authority he thinks that upwards of country, and its decisions are referred to with the

fourteen thousand citations of about eight thousand respect which is seldom given to any court other than

different cases may be more than there is need of, one of last resort. The public and profession had,

especially in support of propositions upon which there however, until the appearance of these volumes,

is a general accord of opinion, but he concludes that known those decisions only through the abstracts and

it is better to have too many than too few cases, in occasional cases published in the Central Law Journal.

which we fully agree with him. While in the presentaThat they are now presented to them in the usual

tion of an argument to the court one or two authorities form is a matter of congratulation, and especially so as

in point may be enough to sustain a doctrine advanced, the work of the reporter and the publisher is done in

in a text-book upon a special subject, every thing of a particularly excellent manner. The cases of value

value in case law ought to be referred to, and in our in the two volumes before us are quite numerous, but

country especially, where a book is designed to be used we will notice only these : In volume I, State v. Ran:

in every State, a citation of authorities from different dolph, p. 15. A State law probibiting the keeping of

States is desirable. A text book which is not up to specified game on one's premises during a certain por

the times on case law is of no value whatever to tion of the year is valid, even when applied to game im

the practitioner, whatever it may be to one studying ported from another State. State v. Boyle, p. 18. No the elements. appeal or writ of error lies on behalf of the State when

The volumes before us are of nearly eight hundred one charged with crime has been acquitted. Guthrie

pages each, and together contain forty chapters. Not v. Wearer, p. 136. Replevin will not lie for a coffin

only is the subject of mortgages, their nature, form, and its contents when those contents are a corpse.

and other incidents discussed, but a number of chapters Armentrout v. S. L. K.C. & N. Ry. Co., p. 158. In

are devoted to the methods in which they may be forecase of injury to goods the act of God cannot be set

closed or otherwise enforced, a very important part up as a defense by the carrier, if guilty of previous

of the law relating to mortgages, but one that is genemisconduct or neglect by which the exposure resulting | rally not touched upon in books upon the subject, it in the loss was occasioned. Probasco v. Bouyon, p.

being considered to belong to the department of civil 241. Where a man named Oakes sold the exclusive right procedure. The book is excellently indexed, and has to manufacture and sell “ Oakes' candies," he was re

a carefully prepared table of cases cited, and we need strained from selling candies made by him as “ Oakes'

hardly add, is priuted and bound in the best possible candies." Mead v. Mead, p. 247. A statute requiring

manner. Both author and publisher seem to have divorce cases to be tried by the court held not uncon

done their best to produce an excellent work, and we stitutional as impairing the right of trial by jury.

know that the profession will heartily thank them Baldwin v. Merrick. p. 281. A furnace not fastened

for it.
down, but set upon brick work which can be removed
without disturbing the ceiling, walls or floor, held not a
fixture within the meaning of the mechanics' lieu law.

In volume II. Stilwell v. Commercial Ins. Co., p. 22.
Freight is insurable and recoverable, while goods are

The Hon. Matthew Hale, Chairman of the Commitso situated as to create a well-grounded expectation of

tee on Law Reform of the N. Y. State Bar Associafreight. Fine v. Hornsby, p. 61. Shares of stock in a

tion, has addressed the following letter to Mr. Throop: corporation are goods, wares and merchandise within the meaning of the statute of frauds so as to require a

ALBANY, March 23rd, 1878. note or memorandum in writing to validate a sale.

Hon. MONTGOMERY H. THROOP: Lowenstein v. Knopf, p. 159. No instrument in writing, except a bill of exchange, not having the words DEAR SIR - The Committee on Law Reform of the " value received," is a negotiable instrument in Mis- State Bar Association consists of twenty-four lawyers, souri. Brunswig v. Taylor, p. 351. A commission three from each judicial district. As chairman of that merchant occupies a fiduciary relation to his princi- committee, I have taken pains to ascertain, so far as pal, so that a discharge in bankruptcy will not, under possible, the views of its members with reference to $ 33 of the Bankrupt Act, release him. Kirby v. Ad- the “ nine chapters” which passed the Legislature of ams Express Co., p. 369. A provision in a receipt given 1877, but failed to receive the approval of the Governor. for goods to be taken by a carrier, limiting liability to In pursuance of a resolution of the committee, passed $50, unless value of goods is declared, held not to limit at its first meeting, I assigned to different members in case of loss from carrier's negligence, and negligence I specified portions of the nine chapters, requesting

THE Hon. Thos. Johnson, ex-Chief Justice


them to report any suggestions of amendment, to

BENCH AND BAR. gether with their views as to the whole, at a meeting appointed to be held in Albany.

About three-fourths of the committee responded, either in writing or orally. Of these all, day last. with I think a single exception, favored the immedi- William G. Choate, recently nominated by ate adoption of the nine chapters. Those to whom the President to the office of Judge of the United the chapter on Surrogates' Courts was assigned were

States District Court for the Southeru District of New perhaps the most decided in favor of its adoption. | York, has been confirmed by the Senate. The reasons given for this approval of the proposed Ex-United States Attorney-General Tafft law were, in substance, that the existing laws upon has been nominated to the beuch of the Superior Court the subjects were very much scattered, in some in

of Cincinnati. stances iubarmonious with each other, and with the practice in other respects, and so confused as often to render it difficult to ascertain exactly what was

NOTES. the law. * * Such it was thought was the natural and inevitable result of the passage of various acts

NEW exchange comes to us from Italy entitled throughout a period of nearly fifty years without any

the Rivista Penale di Dottrina Legislazione E Giurrevision. The proposed nine chapters were approved isprudenza. It is under the editorial management of for the reason that they would substitute order cer- Mr. Luigi Lucchini, a Roman advocate well known tainly and harmony for confusion, doubt and incon

for his learning and ability. The current number sistency.

contains articles upon recent legislation in Germany The objections made by the Governor are, some of affecting the criminal law, contemporary jurispruthem, very grave, and are entitled to, as they will dence, remarks on foreign codes and the condition of doubtless receive, the most respectful consideration.

the Italian Penal Code. The editorial matter, embracI think he is clearly right as to the repeal of the exista ing book reviews and a chronicle of current events, is

The Southing limitation “extra allowances,” and the power carefully prepared and full of interest. given to surrogates to divide dead men's estate among

ern Law Review for February-March, 1878, contains lawyers, to the detriment of heirs and next of kin.

three leading articles. The first on Homestead and Some of his criticisms I think are not well-founded.

Exemption Laws is by Seymour D. Thompson, Esq., As the result partly of such examination as I have

late of the Central Law Journal. The subject of privgiven the subject, and partly of the views of my asso

ileged debts is especially touched upon, and the case ciates on the committee, who have more thoroughly

law relating thereto exhaustively considered. The secexamined portions of the revision, I am of the opin

ond article, on the Taxation of Money, by Hon. David ion that the nine chapters should become a law. I

A. Wells, lucidly and strongly presents certain finanunderstand that the Judiciary Committees of both cial truths that our legislators are too apt to disregard houses are ready to report at an early day such

in the enactment of laws relating to taxation. The amendments to the whole twenty-two chapters last article on Trial by Jury is well written, and conas will obviate well-founded objections; general

tains several interesting suggestions in relation to opinion expressed that the nine chapters

that time-honored institution. The book notices are were much more needed than were the thirteen com

well written and discriminating as usual. The syllabus prising the Code of Civil Procedure. Had the latter

of cases reported in the various law journals since the not been enacted there would probably have been as

last issue of the Review forms, as usual, a very valuto them more difference of opinion in the committee. able feature, as does the list of valuable articles apBut there was almost entire unanimity in opposition pearing in the law periodicals. Altogether the number to their repeal. The prevailing sentiment as to them is a very excellent one. — The San Francisco Law was, “let us have peace.”

Journal has changed its name, and now appears under At the same time it is right that I should say frank

the title of The Pacific Coast Law Journal. ly that there are many provisions of the twenty-two chapters with which the committee were not satisfied. Many sections were objected to, among which were

A curious question of negligence arose in the case of some of those referred to by the Governor in his veto

Firth v. Bowling Iron Co., decided on the 2d inst. by message. The regret was also very generally expressed

the Common Pleas Division of the English High Court that in so many cases the Commissioners had changed had died from eating a piece of wire fencing. Plain

of Justice. The action was for the loss of a cow which the language where no change in substance was in- tiff and defendants were adjoining occupiers of land, tended. But those who proposed amendments and pointed out objections were in most cases strongest in

and the defendants had fenced off the land occupied by favor of the nine chapters as a whole.

them with a fence composed of iron rope. From exIf the nine chapters shall be enacted, and the neces

posure to the weather the strands of wire rusted and sary amendments to them and to the Code of Civil separated into pieces, some of which fell to the ground Procedure adopted at this session, I think we shall

and lay hidden in the grass of the plaintiff's adjoining have a body of practice in all our courts, from highest pasture. In 1867, two heifers belonging to the plaintiff to lowest, more consistent and harmonious and freer

had died in consequence of taking up pieces of wire from uncertainty aud difficulty, than has existed in

while grazing in the plaintiff's said pasture. The court this State for the past thirty years.

held that the action was maintainable ; for that the de

fendants, by maintaining this fence, the nature of Yours very respectfully,

which was known to them, were liable for the injury

caused to the plaintiff, which was the natural result MATTHEW HALE. of the decay of the wire.


and that in that case equities existing between All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the

the original parties shall accompany the note into name of the writer should be given, though not necessa

the hands of any holder would be so.

In the case rily for publication.

decided, the note did not contain the words required Communications on business matters should be ad-by the statute, and the court held that it was in that dressed to the publishers.

case to be treated the same as other negotiable pa

per, but the constitutionality of the statute was The Albany Law Journal. argued on both sides and examined by the court.

In the cases of Woolen v. Banker, 17 Alb. L. J. 72,

and Cranston v. Smith, 16 id. 330, the question is ALBANY, APRIL 6, 1878.

very fully examined; in the first-mentioned case, by

the United States Circuit Court for the Southern DisCURRENT TOPICS.

trict of Ohio, and in the other by the Supreme Court THE question as to where a man's residence is, for of Michigan.

A bill introduced in the assembly, which profamily part of each year in different places, or in other words, has a town and a country seat, at one of actions before themselves on claims left with them

hibits justices of the peace from commencing any which he passes the summer, and at the other the

for collection, or about which they have given counwinter, is a question of growing importance in these days of oppressive taxation. The case of Thayer is aimed at a practice which prevails very extensively

sel, and making a violation of the act a misdemeanor, v. City of Boston, just decided by the Supreme Judicial Court of Massachusetts, appearing in our

in some of the country districts of this State, and

which has a very great influence in corrupting our present issue, contains an interesting discussion of the subject. An inhabitant of the city of Boston, in connection with their official business, carry on

inferior judiciary. Very many justices of the peace, who had a summer residence in the town of his na

that of collecting small debts, and the temptation to tivity, finding his personal taxes growing more and

use the process of their own courts for the purpose more burdensome each year, for the purpose of relieving himself in some degree therefrom, concluded of inducing payment is too strong to be resisted. A

defendant under such circumstances has no chance to become an inhabitant of the latter place, and did

for justice except by an appeal to a jury, and even all he was able to accomplish that purpose without changing his previous habits of life. He spent mate associates of the justice, who will go even far

then he is liable to have a jury made up of the intiabout six months each year with his family in the

ther than the justice would dare to in favor of the country, voted, paid taxes and held public office

We have there. The remainder of the year he dwelt at his party he is supposed to be interested in.

often spoken of the corrupt character of these courts, old residence in the city, where were his chief social

but nothing has heretofore been attempted in the relations, and where he spent most of his money. legislature to remedy the evil. We trust the bill The city of Boston imposed a personal tax upon him

mentioned will pass. and collected it, and an action was brought by him to recover back the sum paid. The court decided

The bill of Mr. Graham, now pending in the asthat in such cases, whether a man is an inhabitant sembly, which is designed to prevent non-resident of one town or another is a question of fact to be insurance corporations from taking advantage of the determined by the jury, and sustained a verdict for Federal law, permitting them to transfer actions plaintiff. The decision is an important one.

commenced in State courts against them to the Fed.

eral courts, ought to pass. The object of making The Supreme Court of Pennsylvania, in the case these transfers is in no instance to further justice, for of Haskell v. Jones, appearing in our present issue, the insurance companies cannot complain that the does not seem to acquiesce in the view taken in In- State courts or the juries therein would deal with diana, Michigan and elsewhere, as to the validity of them in any different manner from what they would State legislation in reference to negotiable instru- be dealt with in the Federal tribunals, but to render ments given for patent rights. The decisions of the the proceedings tedious and expensive to the litivarious courts, heretofore passing upon these statutes, gants. It is suggested that there are doubts as to have been uniformly against their constitutionality. the constitutionality of the act, but we do not beThe court in Pennsylvania admits that a State law lieve it to be so. In the case of Insurance Co. v. which should make a note given for a patent right Morse, 20 Wall. 446, a statute requiring an agreevoid, if not in compliance with its requirements, ment to abstain from resorting to the courts of the would be invalid, but it does not think that one United States, was said to be unconstitutional, and an providing that a note given for a patent right shall agreement made in pursuance of the statute was held have a statement that it was so given inserted on it, I invalid; but in Doyle v. Continental Insurance Co., 15

VOL. 17. - No. 14,


Alb. L. J. 267, also decided by the United States Su- a cemetery lot belonging to defendant. Thereafter preme Court, it was held that a State has a right to plaintiff demanded a delivery of the coffin and body entirely exclude an insurance company chartered by to him that he might re-inter them, and this being another State from its territory, or having given a refused, he brought this action. The court held, license, to revoke it in its discretion for good cause or that there is no property in a corpse, that the relawithout cause.

The proposed statute does not in- tives have only the right of interment; that this right, terfere with the right of non-resident corporations in the case at bar, having been exercised by a burial to transfer actions to the Federal courts, it only says, in the father's lot, with the consent of the husband, if they do so they cannot carry on the insurance no right to the corpse remained except to protect it business here any longer. See as supporting the valid from insult. The doctrine that there is no absolute ity of a similar statute, State ex rel. Drake v. Doyle, property in a dead body has been asserted in several 40 Wis. 175; 22 Am. Rep. 692.

Wynkoop v. Wynkoop, 42 Penn. St. 293; Pierce A bill for the relief of tax payers owning mort

v. Proprietors of Swan Pt. Cemetery, 10 R. I. 227; 14 gaged real estate, introduced in the senate of this

Am. Rep. 667; Kemp v. Wickes, 3 Phillim. 264. By State, on Wednesday last, is an attempt to shift the the old English law the charge of the body belonged

The only burdens of taxation from real estate to personal exclusively to the ecclesiastical courts. property of a specified kind, and is both dishonest

common law remedy for a wrongful removal was by and impolitic. It provides that any person owning

criminal process. In Rex v. Sharpe, Dears. & B. real estate, on which there is a lien by mortgage,

160, an indictment against a man for removing his shall have the amount of the mortgage deducted mother's body from one graveyard for the purpose from the actual value of the real estate, and an as

of burying it in another, was sustained. But under sessment made only on the difference between the

the old English law it was the practice to arrest and

detain dead bodies for debt. In several States, value of the estate and the amount of the mortgage; that a tax shall be assessed on the mortgage,

Rhode Island, Massachusetts, etc., there are statutes to the owner thereof, but it may be paid by the owner

forbidding this. For an interesting discussion of of the real estate and deducted from the principal or

the subject, see Peirce v. Proprietors, etc., supra, interest of the mortgage.

If the owner of the mort- and notes, 14 Am. Rep. 676, 678. gage resides in this State, he may have the amount for which he is assessed thereon deducted from the

NOTES OF CASES. assessment against him for personal property. It

THE case of Angus v. Dalton (L. R., 3 Q. B. D. 85) is, however, made lawful for the parties to a mortgage to stipulate that the mortgagor shall pay the

of the English High Court of Justice, establishes a entire tax on the real estate, in which case the act is

rule of law upon the important subject of lateral not to apply. A mere statement of the features of the bill shows its thoroughly dishonest char- support, which is not in harmony with what has

generally been understood in England, namely : acter. If it were made to apply only to mortgages that twenty years open enjoyment of lateral support hereafter to be executed, it would do no harm, for a building is sufficient to raise a presumption of perhaps, as parties could then contract in reference to it. The act violates these principles,

å grant of the right to such support. The action which have, in every instance except in the taxation defendants for excavating the soil of an adjoining

was brought by the owners of a factory against the of bank shares, governed the imposition of per- house in such a manner as to leave the foundation sonal taxes in this State, namely: that the indi

of part of the factory without sufficient lateral supvidual should be taxed only where he resides, and that he should be allowed to offset his indebtedness port, and thereby causing it to fall. It appeared that

the two buildings had apparently been erected at against his personal property in estimating values

the same time, and were estimated to be upwards of for assessment. If the bill should become a law, it

100 years old. Both had been occupied as dwellingwould ruinously impair the securities held by sav

houses until about twenty-seven years before the acings banks throughout the State, and perhaps des-cident, but the plaintiff's predecessor had then controy many of those institutions. Numerous other verted his house into a coach factory, removing the objections exist to the proposed law, but we have stated enough.

internal walls and erecting a stack of brickwork

which both served as a chimney stack and supported The case of Guthrie v. Weaver, 1 Mo. App. Rep. the girders which had to be put up to sustain the 136, was an action of replevin to obtain what was floors. The defendants, in taking down the adjoindescribed to be a coffin of the value of $90, with ing house, and in digging cellars which had not its contents. The contents were the dead body of previously existed, left a support for the chimney plaintiff's wife, who was the daughter of defendant, stack which proved insufficient, and it fell, drawing The body had, with the consent of plaintiff, who after it the entire factory. It was held, by Cockhad paid for the coffin containing it, been buried in burn, C. J., and Mellor, J., who constituted the ma

Trecently decided by the Queen's Bench Division

« SebelumnyaLanjutkan »