and mortgaged the samo to L. to secure a debt owed by her husband to him. L. foreclosed the mortgage and at the sale the land was purchased by B. for the husband, with his money. Thereafter B. conveyed the same to the husband, who afterward, in consideration of an old debt, conveyed the same to defendant. The deed giving the wife title, the mortgage, and all the subsequent conveyances, were on record. Held, that the husband, in taking title under the foreclosure sale, took in trust for his wife, and that defendant took title subject to such trust. The wife in mortgaging her separate property to secure the payment of her husband's debt to L., became, as between herself and husband, a surety only. Spear v. Ward, 20 Cal. 674; Loomis v. Wheelwright, 3 Sandf. Ch. 155; Bank of Albion v. Burns 46 N. Y. 170; 1 Bish. on Mar. Wom. 604. The husband, in purchasing through B. at the foreclosure sale, was but paying his own debt; and he took and thereafter held the title to the property in trust for plaintiff. Fitch v. Cotheal, 2 Sandf. Ch. 29. In 1 Story's Eq. Jur., § 403, it is said: “In America it is uniformly held that the registration of a conveyance operates as constructive notice to all subsequent purchasers of any estate, legal or equitable, in the same property. To the same effect are the statutory provisions. The record was at least sufficient to put defendant upon inquiry; and he was bound, at his peril, to inform himself as to the facts. Ramsdell v. Fuller, 28 Cal. 37: Neison v. Allen, 1 Yerg. 366; Bank of Albion v. Burns, 46 N. Y. 170. Hassey v. Wilke. Opinion by Ross, J. [Decided Aug. 18, 1880.]

CRIMINAL LAW.

CONSPIRACY-TO MAKE LIABLE, PARTY MUST CONSENT TO CRIMINAL ACT-NO IMPLIED ASSENT-UN

LAWFUL ACT NOT OF DANGEROUS CHARACTER.-It may be stated, as a general proposition, that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. Where the accused was present and committed the crime with his own hands, or aided and abetted another in its commission, he will be conceded as having expressly assented thereto. So, where he has entered into a conspiracy with others to commit a felony, or other offense, under such circumstances as will when tested by experience, probably result in the unlawful taking of human life, he will be presumed to have understood the consequences which might reasonably have been expected to follow from carrying into effect the purpose of the unlawful combination, and also to have assented to the doing of whatever would reasonably or probably be necessary to accomplish the objects of the conspiracy, even to the taking of life. But further than this the law does not go. If the accused in such case has not expressly assented to the commission of the crime which happened to be the result of attempting to carry into effect the purpose of the conspiracy, and the unlawful enterprise was not of such character as would probably involve the necessity of taking life in carrying it into execution, then there can be no implied assent, and consequently no criminal liability for the unexpected result. If the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force and violence which may result in the taking of life unlawfully, every party to such agreement will be held criminally liable for whatever any of his co-conspirators may do in furtherance of the common design, whether he is present or not. But where the unlawful act agreed to be done is not of a dangerous or homicidal character, and its accomplishment does not necessarily or probably require the use of force and violence which may result in the taking

of life unlawfully, no such criminal liability will attach merely from being a party to such an agreement. 1 Bish. Crim. L. (6th ed.) $ 641; Hawkins' P. C., book 2, chap. 29, §§ 19, 20, 21; Foster, 369, 370; Regina v. Franz, 2 F. & F. 580; Regina v. Horsey, 3 id. 278; Regina v. Luck, id. 443, Roscoe's Crim. Ev. 655, 673; Regina v. Tyler, 8 C. & P. 616; Regina v. Lee et al., F. & F. 63; Regina v. Turner et al., 4 id. 339; Rex v. Hawkins, 3 C. & P. 392; Watts v. The State, 5 W. Va. 532; Rex v. IIowell, 9 C. & P. 437. Illinois Sup. Ct., Sept. 22, 1880. Lamb v. People of Illinois. Opinion by Mulkey, J.

LARCENY - TO BE PRINCIPAL MUST BE CONCERNED IN ORIGINAL TAKING. A person cannot be a principal in a theft unless he is concerned in the original taking. It is often said that theft is a continuous offense, but cases wherein this doctrine is announced, upon examination, are generally found to be those in which a theft is perpetrated in one county, State or country, and the stolen property is then carried by him into another. In accordance with established principles at common law, which the statutes of all our States have embodied, it is universally held that the thief may be prosecuted either in the locality of the original caption or in that to which the property has been carried, upon the principle that the legal possession of the true owner continues, notwithstanding the larceny, during each moment of the fraudulent possession of the thief, and the offense is continuous so long as the property is in course of transportation or in the actual possession of the thief. It does not follow, inevitably, that any person who joins in the enterprise, after the original caption is perfected, is necessarily a principal in such original caption. The better doctrine seems to be, that in order to bring the latter within the category of a principal he must have been concerned in the original theft. Commonwealth v. DeWitt, 10 Mass. 153. He need not be actually present at the taking, if the act was committed in pursuance of a common intent and a previously-formed design, in which his mind united and concurred with that of the actual taker. Welsh v. Stato, 3 Tex. Ct. App. 413; Scales v. State, 7 id. 361. Texas Ct. of Appeals, June 16, 1880. Cohea v. State of Texas. Opinion by Clark, J.

PERJURY- -EVIDENCE- TESTIMONY OF TWO WITNESSES NECESSARY TO CONVICT.-It is a general rule that the testimony of a single witness to the falsity of the matter on which the perjury is assigned is insufficient to convict on a charge of perjury. Two witnesses are not essentially requisite, for if any material circumstance be proved by other witnesses in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale, and warrant a conviction. "When there are several assignments of perjury, it does not seem clearly settled whether, in addition to the testimony of a single witness, thero must be corroborative proof with respect to each, but the better opinion is that such proof is necessary, and that, too, although all the perjuries were committed at one time and place." 1 Greenl. Ev., § 257 a. Thus A, in an affidavit, stated that he had paid all the debts proved under his bankruptcy except two. On an indictment for perjury on this affidavit, one of the assignments was that A had not paid all the debts proven except two, and another that certain other creditors were not paid in full. In support of the indictment several creditors were called, who each proved the non-payment of his own debt. Held, that this was not sufficient to warrant conviction, and that as to the non-payment of each debt, it was necessary to have the testimony of two witnesses, or of one witness and some circumstance to supply the place of a second witness. Regina v. | Parker, 1 C. & M. 639; 41 E. C. & E. R. 346. See 2 Russ. on Cr. 654. The weight of authority and the general rule require that where an indictment contains

several assignments of perjury, in order to convict on any one there must be either two witnesses or one witness and corroborative évidence to negative the truth | of the matter in such assignment. Pennsylvania Sup. Ct., Jan., 1880. Williams v. Commonwealth of Pennsylvania. Opinion by Trunkey, J.

RECENT ENGLISH DECISIONS.

CONTRACT

-REPRESENTATIONS INFLUENCING CONDUCT MUTUALITY -INTEREST IN LANDS- STATUTE OF FRAUDS, § 4- EXECUTED CONSIDERATION.-A representation, which influences the conduct of a person to whom it is made, is not legally enforceable against the person who makes it unless it operates either as a contract or as an estoppel. The plaintiff, as heir-atlaw of an intestate, claimed the title deeds of the intestate's farm, of which the defendant had taken possession on his death. The defendant counter-claimed a declaration that she was entitled to a life estate in the farm, and to retain the title deeds for her life. The jury found that the defendant was induced to serve the intestate as his housekeeper without wages for many years, and to give up other prospects of establishment in life, by his promise to make a will leaving her a life estate in his farm, if, and when, it became his property. Held, first, that the finding, taken with the facts, amounted to a finding that there was a contract to the above effect between the intestate and the defendant, and that such a contract being based on a good consideration (whether it could or could not have been enforced by the intestate) was binding on him and his estate; and secondly, that since the contract had been completely performed on the defendant's part, section 4 of the statute of frauds did not apply; and that the defendant was entitled to the declaration asked in the counter-claim. Cases referred to: Packard v. Sears, 6 A. & E. 469; Hammersley v. De Biel, 12 Cl. & Fin. 45; Loffus v. Mayo, 3 Giff. 592; Luders v. Anstey, 4 Ves. 501; Prole v. Soady, 2 Giff. 1; Coles v. Pilkington, L. R., 19 Eq. 574; Coverdale v. Eastwood, L. R., 15 Eq. 21; Jorden v. Money, 5 H. L. C. 185; Maunsell v. Hedges, 4 H. L. C. 1039; Caton v. Caton, L. R., 2 H. L. 127; Dashwood v. Jermyn. 12 Ch. D. 776. Exch. Div., June 2, 1880. Alderson v. Maddison. Opinion by Stephen, J. L. R., 5 Ex. D. 293.

INFANT -PROMISE TO MARRY -RATIFICATION OR FRESH PROMISE.-In July, 1875, the plaintiff and defendant (both being then under the age of twenty-one) mutually agreed to marry one another. The engagement continued without any definite understanding as to when the marriage was to take place, until March, 1879, when (both having attained the age of twentyone) the defendant asked the plaintiff, in the presence of her father, to fix the wedding-day. She fixed it for the 5th of June, to which the defendant assented, but ultimately he broke his promise. In an action for this breach of promise, in which it was agreed that the damages should be assessed, subject to the opinion of the court as to whether or not that which took place in March, 1879, was evidence from which the jury might and ought to infer a fresh promise to marry after the defendant had attained twenty-one, within section 2 of the Infants' Relief Act, 1874 (37 and 38 Vict., ch. 62), or a mere ratification of the original void promise. Held, by Denman and Lindley, JJ., that what took place in March, 1879, when the wedding-day was fixed, was a fresh promise made after the defendant came of age, and upon a good consideration. By Lord Coleridge, C. J., that it was a mere ratification of the original promise made by the defendant during his minority, and not a binding promise within the statute. Coxhead v. Mullis, 3 C. P. D. 433, and Northcott v. Doughty, 4 C. P. D. 435, commented upon. Cases

referred to: Harris v. Wall, 1 Ex. 122; Rowe v. Hopwood, L. R., 4 Q. B. 1; DeThoren v. Att'y-Gen., 1 App. Cas. 686. Com. Pleas Div., June 23, 1880. Ditcham v. Worrall, L. R., 5 C. P. D. 410.

INJUNCTION -PUBLICATION INJURIOUS TO TRADE.It is not necessary to prove actual damage in an action to restrain the issue of a circular which is calculated to do serious injury to the plaintiff's business. Ch. Div., May 7, 1880. Thomas v. Williams. Opinion by Fry, J., 43 L. T. Rep. (N. S.) 91.

SALE OF PERSONAL PROPERTY-CONDITIONAL SALE OF A HORSE DELIVERED — DEATH OF HORSE BEFORE

SALE BECAME ABSOLUTE.-A horso was sold by the plaintiff to the defendant upon condition that it should be taken away by the defendant and tried by him for eight days, and returned at tho end of eight days if the defendant did not think it suitable for his purposes. The horse died on the third day after it was placed in the defendant's stable, without fault of either party. Held, that the plaintiff could not maintain an action for the price, as for goods sold and delivered. Com. Pl. Div., March 13, 1880. Elphick v. Barnes. Opinion by Denman, J. L. R., 5 C. P. D. 321.

CORRESPONDENCE.

IS IT A JOKE?

Editor of the Albany Law Journal

Mr. William Eggleston, in the Preface of his work on Damages, just published, says: "In submitting this work to the profession, I feel great anxiety as to its reception by the public." And well he may, for of all the outrages ever perpetrated upon the patient lawbook-buying public, this is the acme in what is known as padding. During the recent presidential compaign there appeared a neat littlo publication comprising some 37 sheets of puro white paper, entitled, "Life and Public Services of Winfield Scott Hancock. Every lawyer who received a copy of said book was highly amused, and pronounced it a huge joke. Little did that they wero establishing a precedent to be handed the publishers of that unique book dream, however, down and slavishly followed by future generations, and I seriously question, Mr. Editor, whether there will be found among the bench and bar of this State, a single legal-bibliomaniac willing to vote the 58 pages of plain white paper, found in Mr. Eggleston's work, any thing save an unmitigated outrage upon the legal profession. Yours, etc..

WILLIAM J. C. BERRY, Librarian N. Y. Bar Association. FORM OF BALLOTS.

Editor of the Albany Law Journal:

I note what you say in last JOURNAL about the electoral ballot. It would be well for some level-headed legislator to revise the whole legislation about ballots, for it is now muddled. The Revised Statutes (1 R. S. [5th ed.] 427, § 9), required ballots to be "endorsed." The amendment, Laws 1880, chapter 553, section 1, requires them to be "indorsed." 1 Revised Statutes (5th ed.), 429, § 15, requires ballots for electors to be "indorsed. Chapter 366 of 1880, section 2, says: "Every ballot shall have a caption (as provided by law)." This implies that some previous law required a caption." What law? That is a conundrum, which the draughtsman of that act should answer. No one else can! I believe the above refers to all the legislation about the form of ballots, except chapter 513, Laws of 1855, relating to the city of New York, which provides that the ballot for electors shall be "the same as now prescribed by law," and when folded shall be indorsed or show on the outside tho words "president," etc., and the same words "when folded, shall be indorsed or show on the outside," etc., are used

66

The Albany Law Journal.

THE

ALBANY, NOVEMBER 27, 1880.

CURRENT TOPICS.

HE address of President Bristow, at the late meeting of the American Bar Association, of which we have given an abstract, and which is now before us in full, is an excellent production. In three points, especially, we have the pleasure of agreeing most heartily with the president. First, in regard to "the pernicious practice of special legislation." On this point he remarks: "It was hardly befitting the dignity of the Legislature of a sovereign State to occupy its time with the act, to be found in the last installment of the laws of Virginia, which 'the principal of Turkey empowers Cove High School, situated at Turkey Cove, in the county of Lee, to confer such certificates of proficiency and distinction as he may think proper to promote the cause of education.' Nor was it exactly fair to the legal profession for the Legislature of South Carolina to pass two special acts admitting John Smith and Thomas Jones to the bar, although one was under twenty-one years of age, and the other had not completed the prescribed two years' course of study.

* * *

Second: In regard to the testimony of husband and wife. On this point he observes: "In New York, husband and wife are in general competent witnesses for or against each other in civil causes. Certain exceptions exist with regard to confidential communications and actions of crim. con. "Whether the general rule should apply to actions founded upon allegations of adultery is a matter as to which the Legislature has displayed considerable indecision, having changed its mind twice during the last two years. Up to 1879, the rule as to such actions was that husband and wife were not competent witnesses to establish any fact, except the fact of marriage. In 1879 this restriction was removed, and husband and wife became competent witnesses in actions founded upon allegations of adultery to the same extent as in other actions, but in 1880 the original rule was again adopted. However great may be the probability of collusion between husband and wife in such an action, that is a consideration, it seems to me, which should affect the weight | of the evidence rather than its admissibility. A provision that such testimony should be insufficient unless corroborated by other evidence, might be salutary, but to exclude it altogether, because it may mislead, shuts out light which might otherwise be thrown upon the issues, and is contrary to the spirit of the modern law of evidence. The English law expressly declares that in proceedings instituted in consequence of adultery the parties and their husbands and wives shall be competent witnesses (32 and 33 Vict., ch. 68, § 3)." The true theory of VOL. 22.- No. 22.

evidence is to exclude no one, who believes in and understands the sanctions of an oath, for any reason whatever. See Alb. L. J., passim.

Third: In regard to the reformation of criminals. On this point he says: "In addition to the penal statutes which have been passed, some States have endeavored to drive out and destroy the devil — who, according to the old form of indictment, instigates all offenders against the law to the commission of crime by the enactment of laws looking to the reformation of criminals. Iowa, Massachusetts, and Wisconsin, have established rules providing for the diminution of the terms of imprisonment of convicts in case of good behavior. These rules enable the prisoner to determine precisely at what date his term will expire in case his conduct gives satisfaction to the keeper of the prison, and where the term is a long one, a very considerable deduction is made. Such rules seem well calculated to secure order, but it would be expecting too much of them perhaps to anticipate any real 'change of heart' among prisoners as a consequence of their adoption. They undoubtedly create a conviction that 'honesty is the best policy,' while in jail, but do little to make it plain that the same rule holds outside the prison walls. The Massachusetts Legislature has embodied a novel idea in a statute providing for the appointment of 'probation officers,' so called. It is made the duty of these officers to examine into the cases of persons arrested for crime, and determine whether they may reasonably be expected to reform without punishment. If they so recommend, the court may order the prisoner to be released on probation upon such terms as it may deem just. The probation officers may also inquire into the cases of convicted prisoners, if the term of imprisonment, which they have still to undergo, does not exceed six months, and recommend their release on probation. If the court so directs, or in case of the Superior Court, the district attorney and the county commissioner concur in the recommendation, the prisoner is to be released, but on probation only, and may be rearrested and confined for the remainder of his term. If the duties of these officers are wisely performed, it seems that some good may be accomplished. No doubt it often happens that a man of average morality who desires to do right, and for a long time has succeeded as well as most men, takes at last a single false step in a moment of dire temptation, and cases of sincere repentance may exist among criminals and convicts. General rules which create rewards for good behavior are not likely to defeat the ends of criminal statutes, and a sound discretion may well be exercised in favor of the most meritorious of the criminal classes, to save them from utter and hopeless degradation injurious to themselves and useless to the State." The Massachusetts system is, we understand, substantially like the English “ticket of leave" system, and is also like a pardon on condition of good behavior.

It is probable that the amendment to the Constitution, providing that any judge of the Supreme Court, or of the Court of Appeals, who shall be retired from office at the age of seventy, as is now required by the State Constitution, but who shall have served at least ten years on the bench, shall be entitled to his full compensation during the remainder of the term for which he was elected, has been carried. This amendment is good so far as it goes, but it does not go far enough. It is but fair to the judges who have grown old in the public service, and have arrived at an age when they are disqualified from practice or at a disadvantage in it, to grant them pensions for life to some amount, and we think to the amount of their salary annually. If it is conceded that a man ceases to be fit for the judicial office at 70, it must also be conceded that he then ceases to be fit for the active duties of the bar. The State should either pension its judges for life, or extend the judicial tenure to the age of 75, with the present provision for a pension of four years' salary. Some of the newspapers are already grumbling about the expense. This is the merest demagogism. The State squanders, at the behest of either political party, ten times more money every year than any probable pension list would aggregate. A State which can spend twenty millions for a capitol, and not feel it, can afford to do its aged judicial servants justice. This should be the duty of the State, and not the mere pleasure of private charity, as has been suggested with regard to the proposed pension of ex-presidents.

We are glad to note that our State Bar Association have taken a new departure in the matter of the presidency. The election of Mr. Sherman S. Rogers, of Buffalo, will give unanimous satisfaction. No fitter gentleman could have been selected, and his geographical location makes the appointment a wise one. The out-going president, ex-Judge Hand, has graced the office by profound legal attainments and ripe scholarship in literature, and received the extraordinary compliment of a re-election. The association has now had presidents from New York city, Albany, and Buffalo, and this geographical distribution should be kept up and extended. Nothing tends to kill an organization more surely than rotation in office which simply "rotates" the old officers in again. The change of the time of annual meeting from November to September will doubtless be an improvement, and will increase the attendance and the interest.

poses is not taken away or impaired. This leaves these corporations subject, as in former times, to taxation on their real estate, which was plainly intended, subject to the new State tax on capital stock and receipts, and also subject to assessment, as before, on stock and personal property so far as local purposes are concerned. They certainly have not calculated upon this, even if the joint special committee which muddled the tax laws last winter intended it." Our legislative committees are usually placed in a quandary between their desire to find some one to pay the public burdens, and to exempt nearly everybody, or at least those best able, from this necessary duty. It reminds us of the Irish gentleman, who, sitting for his portrait, directed the artist to paint his servant in the picture, in plain sight, but just outside, within aisy call."

"not

Lord Chief Justice Cockburn has closed his long and useful life. He died, very suddenly and unexpectedly, on the 20th inst., at the age of 78, after a judicial service of 24 years. We shall await our London exchanges to make up an account of the life and public services of this distinguished man.

IN

NOTES OF CASES.

N the Vienna Juristische Blaetter we find the following decision on the subject of rewards: A's servant had embezzled 37,000 florins and had fled. A went to the director of police at Prague and formally declared before him that he would give ten per cent of the sum found with his servant on his arrest. The police authorities published this offer of reward in the newspapers. A few days thereafter, B delivered A's servant into the hands of the police. 17,372 florins were found on his person. A refusing to pay B ten per cent of this sum, B brought suit for 1,737 florins. The trial court nonsuited him, it appearing that the servant had voluntarily come to B and given himself up to him, and that then B had merely accompanied the servant to the police station. B appealed, and the Bohemian Supreme Court, and on A's further appeal, the Imperial Appellate Court, both decided that B was entitled to the reward. They held that A was only interested in the success consequent upon his offer of reward; the manner and mode of effecting it must be immaterial to him. He has no right to scrutinize the action of B, his intent or meritoriousness. Because the servant was arrested, and a part of the money restored to A, he must pay the promised reward to the person who brought this about. Without B, the servant might have changed his mind, concealed himself and wasted the money. For a succinct treatment of the subject of rewards, see note, 26 Am. Rep. 5.