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The Albany Law Journal.

The New York system of procedure has been the subject of much criticism, but whatever may be its

faults, it renders possible the transaction of an ALBANY, SEPTEMBER 22, 1877.

enormous amount of legal business. In fact, the litigation disposed of by the courts of this State is

far beyond any thing known in any other State in CURRENT TOPICS.

the Union, and, we imagine, surpassing any thing

known elsewhere, except perhaps in the courts of THE Court of Appeals reconvened on Monday last,

Westminster and London. Our judicial force is after a vacation of about three months, and

large, and is actively employed. In addition to the resumed its active duties, which it will continue

seven judges who constitute the Court of Appeals, with brief interruptions until the middle of June,

there are, including the thirty-three Supreme Court 1878. Under the present Constitution this tribunal

judges, the judges of the Superior Courts of New is in several ways unlike any other sitting in this

York and Buffalo, and the judges of the New York country. It is a purely appellate court, not only in

Court of Common Pleas, and those of the city courts respect to causes coming before it, but in reference

of Brooklyn and several other cities, and the county to the duties and functions of those composing it.

judges, considerably more than a hundred judicial Its members never take part in any judicial proceed

officers competent to hold courts, before whom acing outside of the court. It reviews, not as in the

|tions of almost any nature may be tried. But a case of most appellate courts, the decisions of nisi

very large number of causes are tried by referees, prius tribunals, but those which have already been

who relieve the regular judges, not merely by the argued and determined by an inferior appellate

number of cases which they take from the calendar, body. It is not, as would be inferred from its posi

o its posi- | but by the circumstance that they take those cases tion, and from analogy with similar bodies in other

which are liable to consume a vast amount of time, States, a supervising court, but is simply a court of

and which turn upon questions of evidence. In adlast resort, passing upon such cases as may be regu

dition, in cases in which no defense is interposed, larly brought before it, and over which it has juris | judgments may be entered either without applicadiction. It is decidedly a court of limited jurisdic

tion to the court or with an application, which, as tion, and a very great share of the litigation which

a rule, requires but little attention. A very large occupies the attention of the different judicial

number of actions are thus disposed of, which, bodies in the State can never reach it. The inten

under other systems of practice, occupy the time tion of those who planned the system of which this

of judges and officers of the court, and delay more court forms a part was, that only cases which might

or less the litigated business. The cases in which present questions of importance, or involve a suffi

judgments are taken by default exceed many times cient amount to warrant a protracted litigation, I those appearing upon the calendar, and the amount should be argued therein, and that its time should not

of business actually done can only be determined be taken up in the consideration of cases in which

by an examination of the records kept by the clerks appeals were brought solely for the purpose of delay. l of the courts. If to this is added the suits litigated If the result hoped for has not been completely ob | in the two or three thousand justices' courts, many tained, it has been very nearly so, and but a very few of which in other States would be brought in courts unimportant cases come before this court, compared of record, there would seem to be enough going on with what come before courts of last resort in

| to keep most of our lawyers busy. other States, or with what would come before it if the rules governing appeals were more lax. Each | The laws designed for securing the observation of one of the features we have mentioned may exist Sunday as a day of religious worship have, as a elsewhere, but in no State, so far as we know, do rule, been efficient of late years for the purpose only they all exist in respect to the court of last resort. of enabling dishonest men to escape the fulfillment In another way the court is remarkable, and that is, of contracts of which they have received the benefit, in the very large number of cases it hears and de- and dishonest corporations to evade liability for termines. Notwithstanding every effort is made to injuries resulting from their negligence, upon the keep causes from being brought here, the amount of ground, in each case, that the party seeking to enbusiness in this State is so great that the calendar | force the contract or to recover on account of the is always crowded. The court delivers opinions in negligence, derived his right of action through a over four hundred decisions per annum, besides dis violation on his part of the laws in question. A posing of numerous cases in which no opinions are case has arisen, however, in the courts of Wiscongiven. As these opinions are upon law questions sin, where the laws against Sabbath breaking have only, they constitute probably the most valuable operated in a manner more in accordance with juscollection of case law now coming into existence, tice. A railway company contracted to carry a in this country at least.

number of church-goers to their place of worship Vol. 16.– No. 12.

and back to their homes. The carriage to the place ever, though the circumstance that since 1860 all was performed, but that back was not, and the Su-| those chosen to the supreme bench have resided at preme Court held that no action could be sustained the north or west, and the south is unrepresented, against the railway company for a breach of its gen- | somewhat narrows the circle of candidates, and eral duty as carrier, on the ground that it was under leaves only two or three prominent names as those no obligation to carry passengers on Sunday. If the among whom the President can properly make a Sunday laws can be made to operate so as to defeat selection. We have heretofore expressed our desire contracts of this kind, we imagine they will not that Judge Dillon should receive the vacant place, long remain in the statute books.

but the territorial rule will exclude him. Among

those names as likely to be appointed, Ex-Secretary The London Law Journal publishes a list of the

Bristow seems to stand foremost, and we trust that leading cases decided by the English courts during he will be preferred both by the power that nomithe past legal year. They are only fourteen in num

nates and the one which confirms. ber, and out of them there are only five that are of authority on this side of the water. These cases The decision of the Rapid Transit cases by the are Regina v. Keyn, 46 L. J. Rep. 17 (the Franconia Court of Appeals settles a matter of considerable case), where it is held that an English criminal importance to those having occasion to travel about court has jurisdiction to try a foreign captain of a the streets of New York city. The constitutional foreign vessel for manslaughter, committed by col- points involved are of general moment, but the lision with an English ship within three miles from commercial interests dependent upon the question the English shore; Randall v. Newsom, 46 L. J. whether the movement of individuals about the Rep. 259, where the Court of Appeal hold that in metropolis shall be slow or rapid are so great that every sale of goods there is an inplied warranty they render the legal and constitutional bearings of that the article sold shall answer the description in the decisions given of apparently little significance. the contract, and that this warranty is absolute, Yet the decisions given are important, as being adand extends to latent as well as to discoverable de- / judications of the court of last resort upon provifects; Purcell v. Sowler, 46 L. J. Rep. 308, where sions of the Constitution of recent adoption, and the same court decide that a newspaper report of which were designed to check an evil that was unthe proceedings of a public board is not privileged; known until recently. It is to be regretted that the Wilson v. Finch Hatton, L. R., 2 Exch. D. 336, court did not, in each case, reach a conclusion that where it is decided that in letting a furnished house could be concurred in by all its members, but the there is an implied warranty that the premises are result having been in favor of rapid transit, it is fit for occupation, and Seaman v. Netherclift, 46 L. probable that those who have been instrumental in J. Rep. 128, where it is decided that no action will securing that end are as well satisfied as if they had lie for defamatory words spoken by a witness in the gained their suit by a larger majority. course of his evidence in a judicial proceeding. A rather small showing for a year, in which the courts

NOTES OF CASES. of England have done more business than in any preceding one. Yet we doubt if the American

THE case of Commonwealth v. Godshalk, recently courts have produced a greater number of decisions

1 decided in the Court of Sessions of Lehigh that will be found valuable as leading authorities in

county, Pennsylvania, was a prosecution for maliother countries.

cious libel, the libel consisting of the publication

in a newspaper of certain derogatory statements in The newspapers are again discussing the appoint- relation to the prosecutor, which were made by ment for the vacancy now existing upon the Federal counsel at the trial of a suit in which the prosecutor Supreme Court bench, and suggesting numerous was plaintiff. The article containing these statenames for the consideration of the President. As ments purported to be an account of the trial in the Senate has a voice in the matter, and as that question, and the defense set up was, that the pubbody sometimes exercises its privilege in a way not lication was privileged. The court held it was not, in harmony with the wishes of the executive, it is saying that the speech of counsel in a judicial properhaps well that the President has postponed his ceeding does not afford matter for a privileged pubnomination, and that he does not act until the as lication, and if it contain scandalous and defamasembling of Congress, when he can consult with the tory matter, a prosecution for libel will be mainleaders in the Senate, and avoid any wranglingstained. See, as supporting this holding, Saunders similar to those which took place when the office of v. Mills, 6 Bing. 213; Flint v. Pike, 10 E. C. L. R. chief justice was vacant, and nominations were 668; Lake V. King, 1 Saund. 120; Rex v. Greery, made by the President to fill it, which were unsatis- | 1 M. & S. 273; Rex v. Lord Aberdeen, 1 Esp. 226. factory to a majority of the senators. As to the In Saunders v. Mills it was held that where the libel appointee, there is as much diversity of opinion as I purporting to be the report of proceedings in a court

of justice did not profess to state the facts as de- on the part of the lessees toward the tenant would posed by the witnesses, but only as stated by the arise. But the lessees were held liable, upon the counsel for the prosecution, it could not be jus- ground that they knew that their mode of using tified as a privileged publication. So in Rex v. their property was productive of damage to the Greevy, a prosecution for libel was sustained, where lawful rights of the tenant, which they were bound the publication of a speech made by counsel in the to respect. The conclusion of the court is supported course of the trial of a cause contained observa- by Greenland v. Chapin, L. R., 5 Exch. 248. See, tions injurious to the character of a party to the also, Grumott v. Williams, 32 L. J. Rep. (N. S.) 237; suit. In Rex v. Lord Aberdeen, the prosecution was Losee v. Buchanan, 51 N. Y. 476; 10 Am. Rep. 623; sustained where the publication, consisting of a Wilson v. City of New Bedford, 108 Mass. 261; 11 petition presented to a committee of Parliament, Am. Rep. 352; Cahill v. Eastman, 18 Minn. 324; 10 was ordered by the House of Commons to be printed, Am. Rep. 184; Rysand v. Fletcher, L. R., 3 E. & J. but it was also published elsewhere, and it was held | App. 350. to be unjustifiable, because it contained matter injurious to the prosecutor, and went beyond the

In the case of Wilson et ai. v. Finch Hatton, L. R., privilege of Parliament. See, also, Philad., Wilm.

2 Exch. D. 336, the defendant agreed to rent the & Balt. R. R. Co. v. Quigley, 21 How. 202, where

plaintiffs' furnished house for three months, from it is held that while a report of a committee of in

the 7th of May, but having at the beginning of the vestigation to corporate stockholders is privileged,

| intended tenancy discovered that the house was, yet a publication of the same afterward in book

owing to defective drainage, unfit for habitation, form, and circulated among the stockholders and

refused to occupy. The plaintiffs repaired the others, is a libel. See, also, Snyder v. Fulton, 34

drains, and on the 26th of May tendered the house in Md. 128; 6 Am. Rep. 314; Purcell v. Souler, 46 L.

a wholesome condition to the defendant, who refused J. Rep. 308.

to occupy or to pay any rent. The plaintiffs having

sued for the rent and for use and occupation, the In the case of Firth v. The Bowling Iron Co., re court held that, in an agreement of this kind, there cently decided in the Bradford (England) County is an implied condition that the house shall be fit Court, the lessees of a colliery, who were under for occupation at the time at which the tenancy is covenant with their lessor to erect fences either by 1 to begin, and if the condition is not fulfilled, the stone walls or posts and rails, erected a fence of lessee is entitled thereupon to rescind the contract, posts and two lines of wire rope which had become and that the state of the house in question, at the unfit for colliery purposes. The fence divided the beginning of the intended tenancy, entitled defendcolliery works from pasture lands in the occupation | ant to rescind, and that he was not liable for the of a tenant under the same lessor. The wire rope rent or for use and occupation. The rule in this in course of time rusted, decayed, dropped in case forms an exception to the one governing conpieces, and fell upon the pasture. The tenant's cat-tracts of leasing in general. The principal authority tle, in grazing, got pieces of the wire with their for the exception is the case of Smith v. Marrable, food into their system, and were injured. In 1867 | 11 M. & W. 5; 12 L. J. (Ex.) 223, where Lord Abintwo heifers died from eating this wire. With the ger says: “A man who lets a ready-furnished house lessor's sanction, complaint was made by the tenant surely does so under the implied condition or obli. to the lessees, and compensation asked for, but no gation that the house is in a fit state to be innotice was taken by the lessees, and they continued habited,” and he further says that "no authorities to use the wire rope as before, doing such repairs are wanted, and the case is one which common sense only as were required for their own purposes. In enables us to decide.” This doctrine was adhered 1876 a cow of the tenant, which was pastured in to in Sutten v. Temple, 12 M. & W. 52, and in Hart the same field, became ill, and was ultimately killed, v. Windsor, id. 68. In the case of Dutton v. Gerrish, being pronounced by a veterinary surgeon to be in- 63 Mass. 89, Shaw, J., says that in the case of furcurable. In the carcase a piece of wire was found

nished rooms in a lodging-house, let for a particu

lar season, a warranty may be implied that they are imbedded in the under fold of the pericardium,

suitably fitted for such use. See, also, Campbell v. which the cow must have taken up with the grass Wenlock, 4 F. & F. 716. In Tully v. Houling, L. R. when feeding. For this cow, compensation was

2 Q. B. D. 182, the same principle was applied to a demanded, and refused, and thereupon this action

contract for the charter of a ship. See, however,

Francis v. Cockrill, L. R., 5 Q. B. 501; Jones v. Just, was brought. The court held that the action could

L. R., 3 Q. B. 197; Keates v. Earl Cadogan, 10 C. B. not be maintained on the ground that the wire 591; Surplice v. Farnsworth, 8 Scott (N. R.), 307; fence was not a proper performance of the covenants Heard v. Camplin, 15 L. T. (O. S.) 437; Searle v. in the lease, there being no privity of contract be

Laverick, L. R., 9 Q. B. 122; Hart v. Windsor, 12

M. & W. 68; Westlake v. De Grau, 25 Wend. 669; tween the tenant and the lessor, nor upon the

the Foster v. Peyser, 63 Mass. 243; McGlashan v. Tallground of negligence merely, there not being any madge, 37 Bärb. 313; Murray v. Mace, Ir. Rep., 8 C. relation between the parties out of which any duty | L. 396.

being in 1847; otherwise it would have been a case VOLUNTARY CONVEYANCES.

of a conveyance to one and the purchase price paid THE rules regulating voluntary conveyances in | by another, where a resulting trust does not arise,

I this State, as they were understood in 1867, under our statute, except in favor of contemporawere very fully and clearly stated by Judge Ingra neous creditors. ham, in Holmes v. Clark, 48 Barb). 237, as follows : Second. Savage v. Murphy, 34 N. Y. 508, A. D.

1866. Here the defendant, without consideration, “1st. A conveyance made to children, for love or affection, is not fraudulent or void against subse

transferred all his real estate to his wife and chilquent creditors, if, at the time of the conveyance, dren, but continued in possession, without any the grantor had sufficient property otherwise to pay apparent change of ownership, and continued in then subsisting debts.

business, paying past indebtedness by obtaining “2d. Such conveyance would be void as to existing creditors at the date of the conveyance, if

new credit, and contracting new debts, until he their debts are not otherwise paid.

failed. The transfer was held void as to subse“3d. It is not necessary that the grantee should quent creditors. The court held that the fraud be a participator in the fraud to avoid the deed.

consisted in a design to obtain a credit by means of He may have received the conveyance honestly, and ignorant of the fraud, and yet the conveyance might

continued possession and apparent ownership, after be void.

attempting to place the legal title of his property the grantee, without knowledge of the beyond the reach of creditors, and that the cancelintended fraud, becomes the purchaser for value, he

ing of old debts by new credits is only a transfer, should be protected, although the grantor acted from fraudulent motives.

and not a payment of the past indebtedness. This "5th. A grant, made without other considera is a very noticeable case, as the two principles tions than love or affection, cannot be set aside in | enunciated in the last sentence seem to be new. favor of subsequent creditors, unless the transac

| The case does not disclose that the grantees partion was fraudulent as between the parties, and made to defraud subsequent creditors."

ticipated in the fraud, and it would seem to fall

under Judge Ingraham's fifth principle, in Holmes In connection with these rules it will be useful to v. Clark, and until now it would have been supexamine three prominent cases in the Court of Ap- posed a case of valid conveyance, except as to antepeals, illustrating this doctrine :

cedent creditors. It is our impression that this First. Carpenter v. Roe, 10 N. Y. 227, A. D. 1851. | fifth principle, consonant, indeed, with the general Here a corn merchant purchased real estate on the opinion of the profession, is really applicable only 1st of May, 1847, taking the title to his wife. He to the cases embraced in statute of resulting trusts, was then unembarrassed, and believed himself able where the price is paid by one and the conveyance to meet all his engagements at maturity. On the taken to another, and where it is explicitly provided 15th of June next following he purchased of the that there shall be no resulting trust, except to the plaintiff a lot of corn, giving his check, post-dated then existing creditors of the persons paying the the 27th, in payment. On the 16th of June, being price. If our views of Savage v. Murphy are corlargely indebted, but, as he supposed, in solvent rect, the case is a highly important one, and takes a circumstances, he joined with his wife in a convey- step forward on the questions at issue. ance of the real estate in question, to their son-in- Third. Case v. Phelps, 39 N. Y. 164, A. D. 1868, law, in trust for the use and benefit of the defend- | is a very radical and peculiar case. The defendant, ant's wife. On the 23d of June, in consequence of owning real estate worth $5,500, but mortgaged for the sudden fall of the price of corn, occasioned by $3,500, and owing about $700 in addition, volunnews from Europe, the defendant suspended pay- | tarily and without consideration conveyed the same ment. It was held that the trust for the wife, as immediately to his wife, without any intent to dewell as the original conveyance to her, was fraudu- | fraud his creditors then existing, but with a view to lent and void as to the plaintiffs. The leading prin engaging in a new business, and to secure the propciple of this case is thus expressed in the opinion: erty to himself and his family in the event of losses " To avoid the conveyance and trust to and in favor in such business. His own deed was not recorded, of his wife, it was not necessary that the debtor but that from his grantee to his wife was recorded. should be insolvent, or believe himself to be so, There was no change of possession, bat he continued when they were executed or created. It was suffi- to occupy the property with his family. The plaincient that he was indebted, and that insolvency tiff, without knowledge of the conveyances, became would be the inevitable, or probable result of want surety for money which the defendant subsequently of success in the business in which he was engaged. borrowed. The defendant engaged in the new busiHe could not, legally or honestly, in this manner, ness and became insolvent. Judge Woodruff, givprovide for himself or family, and cast upon his ing the opinion, says: “I cannot regard this quescreditor the bazard of his speculation." The origi- tion as in substance other than the inquiry; many nal conveyance must have been regarded by the a man, for the purpose of preventing his future credcourt as ineffectual to vest the title in the wife, it'itors from collecting their demands out of his property then owned, and for the purpose of casting , although the plaintiff knew of the transfer at the upon them the hazards of his success in the busi- time it was made, and raised no objection, yet in the ness in which he is about to engage, conveys his absence of evidence that he knew that the debtor property without consideration to his wife, in order was depriving himself of the means of paying his to secure the benefit of it to himself and his family, | debis, he is not estopped from questioning the transhowever disastrous such business may prove, and | fer. The court also remarks, “ It is not necessary to continue in the possession, not even putting the inquire whether he would have been estopped had he deeds upon record, until after such subsequent in- known all the facts. This decision to some extent, debtedness arise. This, it will be seen, is not merely if not entirely, overrules the doctrine of Baker v. a question, whether a man may provide for his wife | Gilman, 52 Barb. 39. and his family, and thereby protect them against Another case in the Court of Appeals is notethe hazards of a business in which he is about to worthy in this connection, namely, Dunlap v. Hawengage, but whether he may put aside property for kins, 59 N. Y. 342. It was here held that the prethe benefit of himself for such a purpose.” And the sumption of fraudulent intent, arising by reason of conveyances were set aside. Undoubtedly a right the statute of uses and trusts, as against the creddecision upon the facts of this case, it yet seems litors at the time of one who pays the consideration for to us that the language quoted is calculated to mis- a grant of land to another, may be overcome by lead and to seem broader than it could have been proof that the one paying the consideration was at intended. The court must have intended to lay the the time neither insolvent nor contemplating insolstress on the fraudulent indicia of the transaction, vency, but reserved ample funds to pay his debts, and not on such a transaction unaccompanied by , and that an inability to meet his obligations way those fraudulent indicia. That is to say, we suppose, not and could not reasonably have been supposed to if Phelps had put the deed on record, and there had be within his mind. In this case the distinction been an apparent change of possession, the transfer

between the statute of frauds and that concerning would have been valid, so far as subsequent credi- resulting trusts is thus defined by Judge Allen: tors were concerned, whatever may have been the 6- The plaintiff's claim rests exclusively upon the case with regard to the then existing creditors. If

statute of “uses and trusts' ( 1 R. S. 728, S: 51, 52), a man is unembarrassed, and out of debt, he cer | which enacts that, when a grant for a valuable containly has a legal right to make a gift to his wife,

sideration shall be made to one person, and the even of all he has, provided he does not keep up

| consideration therefor shall be paid by another, no the appearance of still owning the property himself. I trust shall result in favor of the person by whom Subsequent creditors cannot complain of that. And

such payment shall be made, but the title shall vest if, as Judge Woodruff concedes, he may do so to

in the alienee named in the conveyance, subject provide for his family against the hazards of future

only to the provision that every such conveyance business, why may he not lawfully include himself

shall be presumed fraudulent as against the credin his purpose? The latter is certainly no more im

itors at the time of the person paying the consideramoral than the former, and both, we judge, are tion, and when a fraudulent intent is not disproved. perfectly defensible and even laudable. So we think

a trust shall result in favor of such creditors to the it is lawful "for a man to put aside property for the extent that may be necessary to satisfy their just benefit of himself for such a purpose," but he must demands. The statute makes the fact that the congive fair notice to the world. He has a right to sideration is paid by one for a grant to another, “put aside something for a rainy day,” but he must without other evidence, presumptive proof of fraud, say to the world “I have done it.” That intention but does not make it conclusive, and casts the is not fraudulent, and the court could not have in- | burden upon the grantee to disprove a fraudulent tended to convey the idea that it is. Indeed the intent in the defense of his title. It goes farther test of the fraud was, as is subsequently remarked than the statute of frauds (R. S. supra), for it in the opinion, that “he made the conveyance for allows a voluntary conveyance to be impeached the purpose of securing the property to himself and solely for the want of a valuable consideration his family, remaining in the possession of the prop-moving from the grantee, but it does not incapacierty, and in the apparent ownership.”

tate one indebted at the time from making proviThe most recent case involving these questions, ission for wife or children by a conveyance from a Cole v. Tyler, 65 N. Y. 73, decided in the Commis- | third person upon a consideration paid by him, sion of Appeals in 1875. It was held that where a which is but a voluntary conveyance from himself debtor conveys all his real estate to his wife, with- by indenture. The question in a case like the presout consideration, reserving an entirely insufficient ent under the statute, is not one of fraud in law, in amount to pay his debts, that fact alone renders the which the inference founded on a voluntary dispotransfer void as to the existing creditors, although sition of property, while indebted, would not dethe deeds are duly recorded, and the debtor is doing pend on the particular circumstances, or greater or a prosperous business. This case also holds that I less degree of pecuniary embarrassment of the party

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