« AnteriorContinuar »
attachment suit, is not thereby relieved from his lia- a joint creditor who has taken a mortgage thereon as bility to the assignee. N. Y. Sup. Ct., 1st Dept. Duf- security for his debt. A judgment in personam canfield, assignee, v, Horton, 16 Nat. Baukr. Reg. 59. not be taken against the wife of a bankrupt, or her BANK.
executors, for the value of real or personal property Payment of debts due insolvent bank.-Under the
conveyed to her in fraud of creditors. U. S. Sup. Ct. laws of Pennsylvania, the assignee of an insolvent
| Phipps v. Sedgwick, assignee, 16 Nat. Bankr. Reg. 64. bank cannot accept in payment of debts due the bank a protested draft drawn by such bank upon another
BOOK NOTICES. bank, and sold by the payee to the debtor. Sup. Ct., Pennsylvania. Baschore v. Rhoads, 16 Nat. Bankr.
PARSONS' ANNOTATED POCKET CODE. Reg. 72.
The Revised Code of Civil Procedure of the State of New CONVEYANCE.
York, as amended in 1877, according to the Standard
Text deposited in the office of the Secretary of State What necessary to make it, in fraud of bankrupt law :
by the Revision Commissioners. With Notes and Rebad faith must be proved.-In order to render void a ferences to Decisions bearing thereon. Also, the Tem
porary Act and the Suspension Aut. Albany, NY.: conveyance made by a bankrupt within four months
John D. Parsons, Jr., pp. 610. of filing a petition with a view to give a preference, or
THIS is the most convenient, and, in some respects, other conveyance within six months, it must appear
T the most useful edition of the Revised Code of that the person taking it knew that it was made in
Civil Procedure that we have yet seen. It is a novelty fraud of the provisions of the bankrupt act in the one
in this State to have a pocket edition of a law-book case, or to prevent the property coming to the assiguee,
annotated, yet this edition is not only annotated, but or from being distributed under the act, in the other.
the notes are very full, most of them containing a A conveyance made to secure an actual loan is valid if
reference to all the cases, early and late, bearing on made and taken in good faith. Neither bad faith nor
the section. The cases bearing upon each clause or its equivalent, conduct wanting in good faith, is to be
sentence of a section are grouped, and the particular assumed, but must be proved. U. S. Dist. Ct., Ver
clause or sentence to which they relate is indicated mont. Campbell, assignee, v. Waite, 16 Nat. Bankr.
by means of reference figures, thus rendering unnecesReg. 93. DEFENSE.
sary any statement of the purport of the decision.
The notes also indicate the source whence the section When discharge is, and is not: conveyance in fraud
was derived by the Revisors - whether from the Old of creditors: practice : cross-bill.-A discharge in bank
Code, the Revised Statutes, the General Laws,or otherruptcy cannot be set up as a general defense to an ac
wise. The side notes to the sections have been printed tion by a creditor to set aside a conveyance in fraud
in full-face letter as leading lines, thus facilitating exof creditors pending at the time of filing the petition,
amination. where such creditor has not proved his claim in the
Beside the Code proper, the book contains a Table bankruptcy proceedings, and the assignee has not in
of Corresponding Sections, showing at a glance terfered in the cause in any way. But the discharge
where, in the New Code, any section of the Old Code may be set up in such action in bar of a personal judg
may be found, the Temporary Act, the Suspending ment against the bankrupt other than the subjection
Act, the number of the sections of the Old Code not of the property and claims reached by the creditor's
repealed, and a full index. This edition has also the bill to the satisfaction of the judgment. A convey
certificates of both the Secretary of State and the ance made in fraud of creditors is voidable and not
Revision Commissioners. As a handy volume we void, and the property embraced in it does not abso
doubt if it can be excelled. lutely vest in the assignee as a portion of the bankrupt's estate. A cross-bill setting up defendant's discharge iu bankruptcy is not defective in not making
WILLIAMS ON EXECUTORS. his assignee a party, where almost four years have
A Treatise on the Law of Erecutors and Administratora. By
the Right Honorable Sir Edward Vaughan Williams, elapsed since the appointment of the assignee, and he
late one of the Judges of Her Majesty's Court of Comhas made a final settlement and been discharged. Illi mon Pleas. Seventh Edition. By the Right Honorable
Sir Edward Vaughan Williams and Walter V. Vaughan nois Sup. Ct. Phelps v. Curts, 16 Nat. Baukr. Reg. 85.
Williams, Esq., of the Inner Temple, Barrister at Law.
Sixth American Edition ; in which the subject of Wills DISCHARGE.
is particularly discussed and enlarged upon. By J. C. Surety on guardian's bond.-A discharge in bank- |
Perkins, LL. D. In three volumes. Philadelphia : Kay
& Brother, 1877. ruptcy releases the bankrupt from liability as surety ou a guardian's bond. Illinois Sup. Ct. Reitz v. Peo
This is probably the most elaborate work upon the ple, 16 Nat. Bankr. Reg. 96.
subjects therein treated, that has yet appeared.
The masterly production of Mr. Jarmau upon the subFRAUDULENT CONVEYANCE.
ject of wills, will probably, however, never be excelWhat is : conveyance to wife when in failing circum led, but the scheme and structure of that work, iustances: judgment against married woman.- Where volving, as it does, the statement of cases at length, one of the members of a firm, which is doing a very have rendered it impossible to use it as the foundation large but failing business on a limited capital, with for a modern book, and the same reason would predraws over one-third of his share of the capital to vert its adaptation to the changes made in the English build upon property which he conveys to his wife, but law by the statutes and decisions of our own country. which appears upon the firm books as an investment For that reason there has been no English edition of of the firm until charged up to him after an assigu- | Jarman since 1861, and no American edition since 1859. ment by such firm prior to an adjudication in invol-1 The present edition of the work before us is in three untary bankruptcy. Held, that such conveyance to | volunes, containing in all about 2,000 pages. The the wife is void, and that the assiguee in bankruptoy treatise is divided into five parts, the first of which is is entitled to the proceeds of the property as against upon the appointment of executors and administrators, and is divided into seven books. Book I treats the entire capital consists of non-taxable securiof the origin of wills of personal estate, and of their ties; aliter where the tax is imposed upon the nature and incidents; book II of the making, revoca value of the capital stock 'as property. Jelks v. Bartion and republication of wills of personal estate; rett, p. 315: The Statute of Frauds applies to sales of book III of the appointment of executors, and the realty by auction. Lengsfield & Co. v. Richardson & acceptance or refusal of the office; book IV of pro May, p. 443: The rule requires that the entire profesbate; book V of the origin of administration, and the sional intercourse between client and attorney, whatappointment of administrators; book VI of the effect ever it may consist in, should be protected; the exof probate, and letters of revocation, and the conse emption extends to all that passes between client and quences; book VII of stamp duties. Part second attorney in the course and for the purpose of business. contains four books upon these subjects: Book I on Everman & Co. v. Robb, p. 653: A chattel mortgage the time of vesting of the estate of an executor, and upon crops to be grown annually, contained in a lease its quality ; book II of the quantity of such estate in as security for rent, the lease being recorded, held to possession; book III of the quantity of such estate in be valid against a subsequent creditor. Capitol State action; book IV of the estate executors, several and Bank v. Lane, p. 677: A bank which receives a note or sole, and that of different kinds of executors. Part | bill for collection is bound to use due and proper dilithird contains five books, which treat of the duties gence in making demand, and giving notice, and causand powers of executors, of distribution, and of stamp ing protests to be made so as to hold all parties liable, duties. Part fourth is upon the liabilities of execu and in default of such diligence, the bank itself betors, and contains two books. Part fifth treats of the comes liable to the party who deposited the note or remedies for and against executors, and is also divided bill. Memphis and Charleston R. R. Co. v. Green, p. into two books. The American editor has made 779: Where, through the negligence of a railroad comnumerous additions to the original work in the way pany, a passenger who had purchased a ticket for a of notes, which, especially in reference to the subject train, was prevented from taking the traiu, held that of wills, are much expanded and enlarged. In fact, in the absence of all circumstances of malice, oppresthe three volumes before us furnish a complete trea sion, insult, mental or physical suffering, punitive tise on the law of wills, as well as on that of executors damages would not be allowed, and a verdict of $1,500 and administrators. In addition to the authorities con set aside as excessive. The head-notes to the cases in tained in the English edition, are some ten thousand the volume are carefully and accurately prepared. The other citations. The index to the volumes is well iudex is good, and the book well printed and bound. prepared, and refers to the contents of the notes, as well as to that of the text. The work will be found
CORRESPONDENCE. of the first importance to those interested in probate cases, as it contains every thing relating to the law
A HINT TO THE GOVERNOR. administered in such cases. The books are thoroughly well printed and bound.
DREXEL BUILDING, No. 3 BROAD ST., I
New York, August 13, 1877. }
To the Editor of the Albany Law Journal:
SIR- On the 13th day of February, 1877, just six Reports of Cases in the Supreme Court for the State of Mis- months ago. believing it to be my duty as a counselor
sissippi. By Harris & Sinrall, Reporters to the Supreme Court. Vol. LII. Containing cases decided at the April
at law, upon facts which came to my notice, I filed and October Terms, 1876. Published by authority. St. with the Governor of New York certain verified Louis: G. J. Jones & Company, 1877.
charges and specifications against the official arbitraAmong the cases reported in this volume, the fol-tor of the Chamber of Commerce of the State of New lowing seem to be of general interest: Long v. State, | York. p. 23: In a trial for homicide, in which the doing of My communication was framed and presented under the act in self-defense was sought to be established, it and in pursuance of section 2, chapter 495, of the Laws was held that one need not always await the attack of of 1865, the act which created the Court of Arbitrahis adversary, but may, in extreme cases, anticipatetion. the attack, and take the life of his antagonist in order I do not desire in any ex parte communication to a to save his own, and that the real or apparent danger | newspaper to spread before the public the contents which will justify such action, must be imminent, im and particulars of these charges, but I feel warranted pending and present, but it need not be unavoidable, in saying, here, that they were sufficiently grave in except by slaying the adversary, and a man need not their character to require careful and impartial invesavoid danger by flight if he is in a place where he has tigation, and that, if the facts as alleged by me are a right to be. Mobile and Ohio R. R. Co. v. Moseley, p. sustained by proof, they require the removal of the 127: An exemption from taxation contained in the officer against whom they are exhibited. charter of a corporation organized under it, is irrepeal Since this communication was filed no notice whatable and inviolable. Liverpool, London and Globe ever has been taken of it either by the Governor or Ins. Co. v. McGuire, p. 227, and Hartford Fire [118. Co. by the person against whom the proceeding is div. Green, p. 332: It is proper to refuse the petition of a rected, and no answers have been made to my reparty to remove a cause from the State court to the peated communications asking for the executive acUnited States court, when it is not shown that either tion upon it. I am left, therefore, under the imputaparty is a citizen of the State. Holly Springs Sav. and tion of having made a malicious and groundless atInsurance. Co. v. Supervisors of Marshal, p. 281: tack upon a well-known member of the profession. Where a tax is imposed upon the capital stock of This is a position I do not intend to occupy without an incorporated company, regardless of its value, protest, and I beg through your columns that the proit is a tax upon the privilege of carrying on the fession may be informed of the precise action taken busiuess, and is valid and constitutional, although I by me; and that it may be kuown that I am ready to make proof of each and every statement I have made grave, and then the writer takes up the unfinished whenever the accused party shall demand, and the sentence of the letter thus — Governor shall order, an investigation.
Pistol or dagger will end your career. A cry will go Very respectfully,
to heaven for vengeance for the unlawful sentence on T. M. TYNG.
Mr. Price. Beware. - Your wife will be a widow in a
A second inclosure was as follows:
Beware. State University. The Chancellor of this department, William G. Hammond, LL. D., is unequaled as an On the reverse side of this sheet was the word “Heeducator, and his assistants are men well known upon venge," and underneath a rude sketch representing the bench or at the bar as able and learned lawyers. “Mr. Justice Hawkins being stabbed by the revenger The name of Judge Dillon, who occupies the Profes of Price." Below this again was another coffin with a sorship of Jurisdiction and Practice of Federal Courts, pistol and dagger, and the words, “Your death will be is known and highly honored by the profession all soon; order your coffin." The lid of the coffin bore over the world. Judges Adams and Rothrock, of the this inscription: “In memory of Mr. Hawkins, who Iowa Supreme Court, who lecture before the students, was stabbed rightly by a revenger.” It is believed that stand high among the judiciary of the west. Ilon. | the police have information which will enable them James L. Love, the Professor of Commercial Law, is shortly to arrest the writer of these threatening leta gentleman of distinguished ability, and Messrs. | ters. Howe, Rogers, Duncumbe and Ross, who compose the remaining faculty, are all of them lawyers of experi A case of interest to stockholders in banks which ence and learning. The school possesses this advant
are reducing their capital stock, was decided on the age, that it offers to students an option between two
17th inst. in the New York Court of Common Pleas, courses, a longer and a shorter. The required course
by Van Hoesen, J. The case was Seeley v. New York is embraced within a single year, but a second year's
National Exchange Bank, and the question involved instruction is given to those who desire it and have
was whether a national bank may, after reducing the already passed over the ground embraced in the regu
amount of its capital stock, retain as a surplus or for lar course, and who have in fact already made pro
other purposes, the whole or any portion of the money gress enough to be admitted to the bar anywhere.
which it received for the stock that it retired. The
defendant reduced its capital stock from $500,000 to The otherwise excellent publication, The Law and
$300,000. The court held that the money was paid as Equity Reporter, has the very bad habit of giving a capital, and if it be no longer needed for that purpose, resume of cases without any syllabus. We notice that
and if it be not required for the payment of debts, it the last number (No. 7, vol. iv) contains twenty-three
has accomplished the end for which it was subscribed, cases, that nine of these have no syllabus, three of the
and it ought to be returned to the shareholders. The nine being cases in the Court of Appeals of the State
bank has gone out of existence as a corporation with in which it is published. In these days of numerous
a capital of $500,000. Under a modified charter it comreports lawyers examine such publications for the fa
mences a new life with a capital of $300,000. So far as cility with which they can find points decided in ad
the $200,000 of reduced stock is concerned, the corpovance of the regular reports. It is too much to ask
ration must be considered as having surrendered its that in order to determine whether the case is of any
charter and wound up its business. This being so, value to him he should read two or three pages of
there is no doubt as to the duty it owes to the stockmatter when a syllabus of six or eight lines would in holders who own the retired stock. Payment cannot form him in a moment. If a case is not worth the
be deferred because the directors believe it for a.credlabor of a reasonable syllabus, giving its salient points,
itor's advantage to keep him out of his money. In it is not worth publishing and ought not to be pub
conclusion the court said: “The controversy in this lished. The practice of publishing cases without is a
case really is, whether or not the defendant should be very careless and shiftless one, and the sooner it is
compelled to pay the plaintiff the value of five shares, discontinued the better.
the amount which the directors have determined to
retain as a surplus. If ordering judgment for the At the Liverpool Assizes, on August 7th, Thomas
value of these shares would bring the litigation to a Briscoe Price was brought up to receive judgment,
close, I should go no further than make such an order. having been found guilty of manslaughter. The pris
But it appears to be necessary to provide for the inoner was sent to ten years' penal servitude. In the
demnification of the plaintiff for the loss of his interval between the conviction and the sentence, Mr. twenty-five shares, the transfer of which the bank reJustice flawkins received an envelope, dated “Liver
fused to make upon its books. If I should order pool, Aug. 2, 1877," marked "private," addressed
judgment merely for the value of the five shares, it is “Mr. Justice Hawkins, Liverpool Assize Court, Liver
possible that the defendant would refuse to give the pool," and indorsed “Immediate - delay is danger
plaintiff a new certificate of fifteen shares, and to pay ous!” The packet, which was unpaid, contained the
him the $500 which the directors have ordered to be following extraordinary communications:
paid to those who consent to relinquish two-fifths of Mr. Justice Hawkins.- Sir - You will be dead very their shares. To give the plaintiff complete redress, soon, and you had better order your coffin. Either -- it seems to me to be necessary to order judgment for Here follows a sketch of a coffin, with a pistol and a the value of the whole twenty-five shares. The deskull on the one side and a dagger and a skull on the fendant is liable for that value, having refused to perother. Beneath the coffin is the representation of a | mit the sbares to be transferred upon its books.
The Albany Law Journal.
All communications intended for publication in the haps as well that it should be defeated, for its bad LAW JOURNAL should be addressed to the editor, and the qualities compensate for its good ones, and a change name of the writer should be given, though not necessa
should not be made except for the better. rily for publication,
Communications on business matters should be addressed to the publishers.
The subject chosen by the Committee on Prizes of the New York State Bar Association for the postgraduate prize of $250 is this: “ The legal relations of capital and labor; the right of tho State to
interfere between employer and employed, and what ALBANY, SEPTEMBER 1, 1877.
legislation, if any, should be had on this subject.”
To say nothing of the manner in which the title of CURRENT TOPICS.
the subject is expressed, it seems to us that the sub
ject itself is not such a one as a purely legal associaTHERE is a growing disposition to tinker with tion would care about having discussed. It would
1 the fundamental law that, unless checked, will be one proper enough for a political economist or a soon create as much uncertainty in respect to that devotee of social science, but possesses little interest law, what it is and what it will be, as now exists into a lawyer as such. Besides, even the most careregard to the many parts of the statute law. Almost fully prepared treatise upon such a topic would be every State in the Union has, within the last fifteen principally theoretical, and therefore would have but years, more or less remodelled its constitution, and little practical value. We look, therefore, as a result the federal constitution has, within the same time, of the selection made, for a number of essays from received some very material additions. And in those who are devoted rather to literature and phisome of the States, where the existing organic law losophy than to law, and, as the law is a jealous is of recent creation, movements are being made mistress, from those who do not and will not rank with the purpose of changing it in very many re- high at the bar. spects. The latest of these is in Georgia, where a convention has just brought forth, after six weeks'
A body of striking miners at the west have taken labor, an instrument, which, if adopted by the peo- a practical way of finding out what are the legal ple, will hereafter be known as the constitution of relations of capital and labor, and how far the State that State. In some respects this proposed consti- will interfere between the employer and employed, tution is better than the one at present in force, but by filing a petition in the United States District in others it is a change in the wrong direction. Like Court at Chicago, asking the court to arbitrate in too many other enactments of this kind, it under
relation to their grievances. The petition will untakes to go into details, and to do what might
doubtedly not accomplish what those making it be safely left to the legislature. The judiciary are
desire, but it is well enough for them to make a to be hereafter elected by the legislature, instead of
trial — much better than to resort to force. The appointed by the governor, and the terms of those | application is probably prompted by the idea that a now in office are cut short. The salaries of the law resembling that at one time in force in England, Suprome Court judges are limited to $2,500 each authorizing compulsory arbitration (5 Geo. IV, chap. per annum, but the number constituting that court 96), prevails here. The workings of the English is not increased. The effect of the changes made
law were not at all satisfactory, and it was extencannot be to elevate the character of the bench of sively moditied by chap. 46 of 35 and 30 Victoria, the highest court, while the one not made, namely, It may be possible by some statutory provisions to increasing the number of those occupying that secure amicable settlement of disputes concerning bench from three to five, would have, in many re
wages, but no amount of legislation can remove the spects, made the court better and stronger. The
question from the influence of the law of supply instrument contains & provision forbidding the
and demand, which seems to be what those who granting of any perpetual charter giving immuni
desire such legislation are striving to do. ties to any corporation, and also one looking to the control of railway charges, and one forbidding the | A writer in the Southern Law Review protests lending of the State credit to any private enter- against the custom of lawyers, in writing the title prise. The whipping-post is to be abolished, as is given to one who executes a mortgage, "mortgagor." also imprisonment for debt. The homestead right This is claimed to be erroneous, the correct spelling is reduced to $2,500, and the husband is given the | of the word being “mortgageor.” The general right to waive all but $300 of it. It is said that rule is, that a final silent e is omitted when an affix the prospects of the adoption of the proposed con beginning with a vowel is added, but when the affix stitution is doubtful, the press of the State generally begins with a or o, and the silent e comes immediopposing it. Taking every thing together, it is per- | ately after c or g, it is not omitted. We think,
VOL. 16.-- No. 9.
however, the almost universal acquiescence of the
NOTES OF CASES. lawyers, who are almost the only ones who ever have occasion to write the word, in the spelling In the case of Phelps v. Murray et al., decided in “mortgagor,” will justify such spelling. Webster,
1 the Tennessee Court of Chancery, at the April, indeed, does not approve it, but Bouvier does, and
| 1877, Term, the question arose as to the validity of it certainly is less liable to lead to mistakes than a chattel mortgage given to secure an antecedent that advocated by the critics.
debt upon property described as follows: “ Our entire stock of goods, and each and every article com
prising the same, now in our store, Nos. 19 and 21 The Nation keeps up its attacks on Judge Dillon,
North College street, Nashville, and any other goods or perhaps we should say, permits the attacks to be
which may from time to time during the existence kept up, as it disclaims any responsibility for them,
of this mortgage, be purchased by the grantors and although it permits them to appear in its columns,
put into said store to replace any part of said stock and yields those columns only to the extent of allow
which may have been disposed of, or to increase or ing an abstract of Judge Dillon's defense. The
enlarge the stock now on hand.” The debt was newspaper press in all parts of the country have,
evidenced by notes to fall due at a subsequent time, however, expressed their disapproval of the course
and the mortgage was conditioned to be void if the of the Nation, and their entire confidence in the
notes were paid, and there was a covenant by the slandered magistrate, so it is of little moment what
grantors to keep the stock up to its condition at the any of the slanderers may say or print hereafter.
date of conveyance, and to apply the profits arising
from the sale of the stock to the payment of the The Code of Civil Procedure goes into effect to | notes as they fell due. The mortgage also covered day, supplanting to a great extent the law regulat | real estate, and the grantors remained in possession. ing practice known as “The Code of Procedure.” Complainant was a judgment creditor of defendant, The old Code, which is now as a whole a thing of the and claimed the mortgage upon the personalty to past, went into effect July 1, 1848, a little over | be void as to him, and the defendants, who were the twenty-nine years ago. It was the first attempt made mortgagees, demurred to the bill. The court overto remove from the administration of justice a vast ruled the demurrer, holding the mortgage void. amount of ridiculous formality which embarrassed The general tenor of decisions is that such a contract the conduct of legislation and made the practice of as the one in question is not valid at law as to afterthe law a trade in which success was dependent upon acquired goods, but it has been held that equity sharpnesss and trickery rather than upon learning would enforce it. See Brett v. Carter, 3 Cent. L.J. and merit. The rules regulating procedure for a cen- | 286, decided in the United States District Court for tury or more had been the butt of novelists and Massachusetts. Many cases, however, hold that satirists, and in the minds of the people justice and equity will not enforce such a contract. Robinson v. law were considered in no respect connected. The Elliott, 22 Wall. 513; Edgell v. Hart, 9 N. Y. 213; prominence given to questions of practice and Moody v. Wright, 13 Metc. 17; Collins v. Myers, 16 pleading by the courts rendered the result of an Ohio, 547. See, however, Hickman v. Perrin, 6 Cold. appeal to them uncertain, and in that way made 135; Holroyd v. Marshall, 2 De G. F. & J. 596; them shields for fraud and wrong rather than vindi- Mitchell v. Winslow, 2 Story, 630. It is said that cations of justice and ministers of equity. The the reason of the decisions against the validity of Code changed all this, and the courts of justice such deeds does not rest, as some think, on a prenow pass upon the disputes of suitors, and not, assumption of fraud, in conflict with the general rule they previously did, upon technical points in the that the question of fraud arising out of the retenpleadings or proceedings before them. The Code tion of possession by the grantor, with power of dismet with much opposition at first; in fact, both the position, is one of fact to be determined by the cirBench and Bar opposed it, and most of the leaders cumstances of the particular case. It rests princiin the profession prophesied its early abrogation. pally upon the ground that such a transaction, irreThe generation who occupied the high places upon spective of fraud, is against public policy, throwing the Bench or at the Bar when the old Code went open too wide a door for possible fraud, and the coninto force, have nearly all passed away. Yet the tract does not fall within that class where a court of Coue hus proved a success, and the old common-law equity will enforce a specific performance. Sce, practice has become an obsolete thing in almost also, as to mortgages of property not in esse, Pennock every place where it prevailed in 1848. How long v. Coe, 23 How. 128; Dunham v. Railway Co., 1 the new Code will remain the law of procedure it is Wall. 254; Galveston R. R. Co. v. Cowdrey, 11 id. too early to determine, but as movements of this | 459; United States v. New Orleans R. R. Co., 12 id. nature never go backwards, it is not likely that we 362; Clay v. E. T. & V. R. R. Co., 6 Heisk. 421; will see the entire old Code of Procedure in force Willink v. Morris Canal Co., 3 Green's Ch. 377; Dalagain.
I ton v. Landahn, 27 Mich. 529; Congreve v. Evetts, 10