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entirely incapable of executing a valid deed. It is sufficient to show that, from her sickness and infirmities, she was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration for the conveyance. From these circumstances, imposition or undue influence will be inferred. In the case of Harding v. Wheaton, reported in the 2d of Mason, a conveyance executed by one to his son-inlaw, for a nominal consideration, and upon a verbal arrangement that it should be considered as a trust for the maintenance of the grantor, and after his death for the benefit of his heirs, was after his death set aside, except as security for actual advances and charges, upon application of his heirs, on the ground that it was obtained from him when his mind was enfeebled by age and other causes." "Extreme weakness," said Mr. Justice Story in deciding the case, "will raise an almost necessary presumption of imposition, even when it stops short of legal incapacity; and though a contract, in the ordinary course of things reasonably made with such a person might be admitted to stand, yet if it should appear to be of such a nature as that such a person could not be capable of measuring its extent or importance, its reasonableness or its value fully and fairly, it cannot be that the law is so much at variance with common sense as to uphold it." The case subsequently came before this court, and in deciding it, Mr. Chief Justice Marshall, speaking of this and, it would seem, of other deeds executed by the deceased, said: "If these deeds were obtained by the exercise of undue influence over a man whose mind had ceased to be the safe guide of his actions, it is against conscience for him who has obtained them to derive any advantage from them. It is the peculiar province of a court of conscience to set them aside. That a court of equity will interpose in such a case is among its best-settled principles." Harding v. Handy, 11 Wheat. 125.

The same doctrine is announced in adjudged cases almost without number; and it may be stated as settled law that whenever there is great weakness of mind in a person executing a conveyance of land. arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his represen tatives or heirs, interfere and set the conveyance aside. And the present case comes directly within this principle.

In the recent case of Kempson v. Ashbee, decided in the Court of Appeal in Chancery in England, two bonds executed by a young woman, living at the time with her mother and step-father, one, at the age of twenty-one, as surety for her step-father's debt, and the other, at the age of twenty-nine, to secure the amount of a judgment recovered on the first bondwere set aside as against her, on the ground that she had acted in the transaction without independent advice, one of the justices observing that the court had endeavored to prevent persons subject to influence from being induced to enter into transactions without advice of that kind. The principle upon which the court acts in such cases, of protecting the weak and dependent, may always be invoked on behalf of persons in the situation of the deceased spinster in this case, of doubtful sanity, living entirely by herself, without friends to take care of her, and confined to her house by sickness. As well

on this ground, as on the ground of weakness of mind and gross inadequacy of consideration, we think the case a proper one for the interference of equity; and that a cancellation of the deed should be decreed." Mr. Justice Strong dissented from the decision of the majority of the court on the ground of laches on the part of complainant in instituting the action. As to this point the court say: "The objection of the lapse of time, six years, before bringing the suit, cannot avail the defendant. If during this time, from the death of witnesses or other causes, a full presentation of the facts of the case had become impossible, there might be force in the objection. But as there has been no change in this respect to the injury of the defendant, it does not lie in his mouth, after having in the manner stated obtained the property of the deceased, to complain that her heir did not sooner bring suit against him to compel its surrender. There is no statutory bar in the case. The improvements made have not cost more than the amount which a reasonable rent of the property would have produced, and the complainant, as object to allow the defendant credit for them. And we understand, does not as to the small amount paid on the execution of the conveyance, it is sufficient to observe, that the complainant received from the administrator of the deceased's estate only one hundred and thirteen dollars and forty-two cents, and there is no evidence that he ever knew that this sum constituted any portion of the money obtained from the defendant.

RECENT BANKRUPTCY DECISIONS.

BANK CHECK.

Where not appropriation of fund in bank.- Where one who has purchased a check of one bank upon another fails to present it for payment until the drawer has been adjudged a bankrupt, he is not entitled to priority of payment from the fund in the hands of the assignee, although there were sufficient funds in the hands of the drawee at the time of presentment to pay the check. Such check creates no appropriation of or lieu upon the fund in the bank, nor does it give a right of action against the drawee. U. S. Dist. Ct., S. D. Ohio. In re Smith, 15 Nat. Bankr. Reg. 459.

CREDITORS.

Proof of claim: guardian and ward: statute of limitations: who may participate in distribution.- A claim founded upon a judgment or decree recovered after the commencement of the proceedings in bankruptcy, without leave of the bankrupt court, cannot be proved. The liability of a guardian to his ward is not affected by his discharge in bankruptcy. Proof of claims may be filed after an order discharging the assignee has been set aside, and the assignee ordered to proceed. The filing of the petition arrests the running of the statute of limitations. So long as there is a fund to distribute, all those who had valid, subsisting claims existing at the time of the commencement of the proceedings, upon making proof, will be permitted to participate in it. U. S. Dist. Ct., N. D. Mississippi. In re Maybin, 15 Nat. Bankr. Reg. 468.

DISCHARGE.

Impeachment of. A discharge duly granted under the bankrupt act cannot be impeached in a collateral action on the ground that it was obtained by fraud. Sup. Ct. Com., Ohio. Smith v. Ramsey, 15 Nat. Bankr. Reg. 447.

REVIEW.

What must appear to entitle to.- On an application to review the decision of the District Court upon the question whether the bankrupt has made a full disclosure in obedience to an order requiring it, the petitioner must satisfy the court that the relation given by the bankrupt is such that a reasonable man would not be able to credit it, but would be satisfied of its substantial untruth. U. S. Cir. Ct., S. D. New York. In re Mooney, 15 Nat. Bankr. Reg. 456.

HOMESTEAD.

Assignee acquires no title to: agreement to waive right. The assignee acquires no title to property exempt as a homestead by the law of the State, although the bankrupt owned no other property not exempt by the bankrupt law, and the homestead was not ascertained and set apart until after the convey

made no arrangements to meet, that he shall, as a condition of a further loan which he requires to meet a borrowed note, substitute smaller notes, payable immediately, for those then held by the bank, and also for such further loan, in order to enable it more easily to obtain judgment thereon, held, that the demand was made with knowledge of the applicant's insolvency. Ib.

BOOK NOTICES.

MARYLAND REPORTS-VOLUME XLIV. Reports of cases argued and determined in the Court of Appeals of Maryland. By J. Shaaff Stockett, State Reporter. Vol. XLIV-Containing cases in October term, 1875, and April term, 1876. Published by authority. Baltimore: William K. Boyle & Son, 1877.

ance to the assignee was executed. A prior agreement THE present volume of this valuable series of reports

by the bankrupt with a creditor to waive his right to such exemption confers no power on the bankrupt court over such property. The creditor claiming 'under such agreement must proceed in the State courts. U. S. Cir. Ct., S. D. Georgia. In re Bass, 15 Nat. Bankr. Reg. 453.

HUSBAND AND WIFE.

Gift to wife: right of wife to independent proceeding.— Where a husband, being insolvent, has purchased furniture and articles of luxury and given them to his wife, such gift does not ipso facto constitute an adverse interest in the wife; but the bankrupt court, upon a petition of the assignee for possession of such property, may require the bankrupt to answer the petition, and if it shall then appear that the wife really has any adverse interest, she will be permitted to have her right ascertained in an independent proceeding. U. S. Dist. Ct., E. D. Wis. In re Pierce and Whaling, 15 Nat. Bankr. Reg. 449.

MORTGAGE.

Sustaining one presumptively invalid.-To sustain a mortgage, otherwise invalid as a preference, upon the ground of a promise to give security, made at the time of the loan, the prior promise must contemplate the giving of a specific and definite security-such an agreement as could be enforced by a bill for specific performance. U. S. Dist. Ct., E. D. Mich. In re Jackson Iron Manuf. Co., 15 Nat. Bankr. Reg. 438.

PREFERENCE.

1. Substituting notes at short time for those at longer time. Where an insolvent, with knowledge of his condition and with intent to give his bank a preference, substitutes small notes, payable immediately, for older and larger ones held by the bank, some of which have already matured, such substitution as a condition for a further loan having been demanded by the president of the bank with knowledge of the insolvent's condition, and thereby the bank is enabled more easily to and does obtain judgment upon said notes, and seize and sell the insolvent's property upon executions issued thereon, such seizure and sale will be declared void, and the amount realized at the sale will be ordered paid to the assignee of such insolvent. U. S. Dist. Ct., E. D. North Carolina. Loudon, assignee, etc., v. First Nat. Bank of Wilmington, 15 Nat. Bankr. Reg. 476.

2. What shows knowledge of insolvency.-Where a bank demands of a depositor, who has theretofore always been prompt in his payments, and who has a note overdue and others about to mature, which he has

contains a number of very important opinions upon subjects of general interest. Among those which have attracted our attention we would mention the following: B. & O. R. R. Co. v. Wilkins, p. 11. This case is upon the interesting subject of bills of lading, the guaranteeing of them and their negotiability. It is held that where the agent of a corporation fraudulently issues bills of lading for goods never received by the company, the company is not liable to one making advances thereon, and that bills of lading are negotiable only in a limited sense. Hawman v. Thomas, p. 30. Extrinsic evidence is held not allowable to supply a defect in a will. Third Nat. Bank of Baltimore v. Boyd, p. 47. The liability of a national bank for the loss of bonds, held by it as collateral security for a loan, through negligence, is asserted. Klepper v. Coffey, p. 117. It is held that the fact that plaintiff was negligent will not defeat a recovery for injury from negligence of defendant, if plaintiff's negligence did not contribute to the injury. Shafer v. Wilson, p. 268. The rights of adjacent owners as to support from each other's soil is considered, and the duty of one in making improvements, to do so in such a way as to not injure his neighbor, is asserted. Cumb. & Penn. R. R. Co. v. State, to use of Moran, p. 283. The liability of a master for injuries arising to a servant from the negligence of another servant and what risks the servant takes in entering the employment are here considered. Withaus v. Braun, p. 303, is a trade-mark case, and it is held that the mere sale of a trade-mark apart from the article to which it is affixed confers no right of ownership. State to use of Barnard v. Gott, p. 241. A receipt under seal is held to be conclusive and to prevent a recovery in favor of the one giving it. Magruder, receiver, v. Colston, p. 349. A person holding stock in his own name in a national bank as pledgee to secure a loan is held to be liable for the debts of the bank so long as he holds it, though a sale of the stock under the terms of the pledge would not be considered done in fraud of creditors. (See same case, 15 Alb. L. J., p. 389.) Hambleton v. Cent. Ohio R. R. Co., p. 551. Here a firm in good faith advanced money upon shares of stock in a railroad company pledged to them under forged powers of transfer. The company upon the receipt of the original certificates in like good faith transferred the stock to the firm on its books and issued new certificates to such firm. Held, that as between the firm and the company (the rights of third parties not being involved) the loss must fall on the former. Hardesty v. Hardesty, p. 617. Here a parol gift of a farm by a father to a sou upon which extensive

permanent improvements had been made upon the faith of the gift was enforced in equity. The reporting is well done though the head notes would be better if somewhat shorter. The volume contains a list of unreported cases decided at the same terms as the reported ones, with a brief statement of the point involved. The book is well printed and bound.

RUSSELL ON CRIMES.

A Treatise on Crimes and Misdemeanors. By Sir Wm. Oldnall Russell, Knt., late Chief Justice of Bengal. By Chas. Sprengel Greaves, Esq., one of Her Majesty's Counsel. Ninth American. from the fourth London Edition, with the Notes and References contained in the former Editions, and additional Notes to English and American Decisions by Hon. Geo. Sharswood, LL.D. In three vols. Vol. III. Philadelphia: T. & J. W. Johnson & Co., 1877.

This volume completes the ninth American edition of this work, which we heretofore noticed more fully (15 Alb. L. J., p. 297). The volume embraces Perjury, Conspiracy and Threats, and the Law of Criminal Evidence, and is very full in its treatment of those subjects.

NOTES.

THE IE Southern Law Review for June-July, 1877, has just appeared. It contains valuable articles upon these topics: "Dartmouth College Cases (sixth and concluding paper); Of the Jurisdiction of Equity to Enjoin Corporate Elections, by James L. Hugh, Esq.; Removal of Cases from State to Federal Courts, by R. McP. Smith, Esq.; Jurisdiction of Probate Courts, by Hon. J. G. Woerner; Reporters and Text-Writers, by F. F. Heard, Esq.; A Point on Chancery Practice, by Hon. W. F. Cooper. The book notices display the usual ability, and the notes are of considerable interest. The digest of recent cases is very full and accurate, and is a very valuable feature of the number, as it furnishes an index to the decisions appearing in all the leading law publications.

In the case of Wayman v. Blumgart, recently tried in the New York Superior Court, a jury contrived what they believed to be an excellent plan to avoid the performance of their duty. Several questions were submitted to their decision, and the court directed them in case of agreement to return a sealed verdict. They agreed upon one question and gave to the officer in charge what they informed him was a sealed verdict. The paper left with the officer when opened was found to contain a verdict upon one question only, with a statement that the jury disagreed upon the other points. The jury were able thus to release themselves from what bid fair to be a tedious confinement, but Judge Freedman, before whom the case was tried, fined the foreman $20, and the other jurymen $10 each for the irregularity committed by them.

The Central Law Journal is rather hard upon the Western lawyers. It says: "Much as may be said in favor of the skill, vigilance and fidelity of the legal profession, things occasionally come to light, backed by statistics which do not lie, which are decidedly to the disadvantage of the fraternity. The reporter of the decision of the Supreme Court of one of our Western States lately told the writer that one-half the decisions which were reversed by his court (and the reversals were rather numerous) were reversed on the ground of errors

committed by the attorneys on questions of practice, many of them of a most simple and obvious character. Suppose a similar number of technical errors should be committed by architects, bridge builders or boilermakers, what would be the result? It is obvious that the machinery of the criminal law would be put in operation to stop it, and the legal profession would reap a rich harvest out of it. Such blacksmithing in the practice of the law ought not to be tolerated, even in a new community. What makes it worse, the cost of these blunders is borne by innocent clients. Could a more potent argument be suggested in favor of the elevation of the standard of legal education?"

The following resolution accepting the act of incorporation of the New York State Bar Association, presented by Elliott F. Shepard, of New York, was submitted May 30, 1877, to the several district committees and adopted by the executive committee:

66 Resolved, That the Act to incorporate the New York State Bar Association,' passed May 2, 1877, be and is accepted by the executive committee of the New York State Bar Association, organized November 21, 1876, for and on behalf of the Association and

all its members, pursuant to the authority conferred upon the executive committee by the constitution, article VI."

A demented Welsh suitor recently drove up to his solicitor's office, and, not finding him, drove away to his clerk's house, and there wrote out a check for £90,000,000 to retain the whole of the North Wales Bar

in an action he was going to bring against the London and North Western Railway Company.-The English government derives a large revenue from litigation. In England alone, in addition to the sum of £195,901 158. 11d., the gross income from judicature fee stamps, there was also a sum of £129,995 98. as received in England in the last financial year from the Probate Court. The aggregate, £325,897 4s. 11d. (over $1,700,000), must go very far toward paying the entire expense of maintaining the courts, both civil and criminal.

The Chicago Legal News of the 28th ult. says the judges of the Supreme Court have left Mount Vernon aud returned to their homes. Before doing so they sent for filing in the various divisions over two hundred

66

opinions. These opinions will make nearly two volumes of reports. We pity the bar of Illinois. Under an amendment to the rules of the Supreme Court of the United States assignees in bankruptcy can be allowed extra fees in special cases requiring more than ordinary care and attention. Judge Blatchford on the 27th ult. decided, in construing the application of the amendment, that its purpose was not to reform the rate of compensation to assignees in all cases, or in any large proportion of cases. Undoubtedly the compensation of assignees may often be properly called insuffi cient, but the Supreme Court did not by the amendment intend to alter it. It intended only to provide for a small class of cases where a special inadequacy of compensation appears, and great care and exaction are shown."-The Court of Common Pleas in Dublin on the 12th ult. decided that a Roman Catholic clergyman, in making charges from the altar against members of his own congregation, was not privileged in any way, but that, on the contrary, he was not only violating the law of England but the law of his own church.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

function is to serve as a sort of sieve to prevent the criminal courts from being over-run with frivolous prosecutions. But the grand inquest of Baltimore

Communications on business matters should be ad- county, Maryland, has attempted to make manifest dressed to the publishers.

The Albany Law Journal.

ALBANY, JULY 14, 1877.

CURRENT TOPICS.

THE decree in the famous church bell case in Philadelphia (see 15 Alb. L. J. 245) has been affirmed by the Supreme Court of the State with some modifications. The defendants are permitted to ring their chime of bells on Sunday for two minutes at thirty minutes before the time of commencing divine service and the smallest bell alone for five minutes immediately before such time; such ringing to take place only at the usual services forenoon, afternoon and evening, but not at early morning service. Three of the judges dissent from the decision of affirmance on the ground that it is not a case for a preliminary injunction. The decision as it stands is a victory for the opponents of noisy religious services and indicates that in the State of Pennsylvania at least an individual cannot make the performance of his devotional duties a means of annoyance to his neighbors.

It is reported from New Orleans that the famous Gaines will case is at an end. The time for the defendants to file their bonds of appeal from the decision of Judge Billings is said to have expired on the 30th ult. and no bonds were filed. If this is so the plaintiff has at last achieved a complete victory and nothing can stand in the way of her reaping some fruits of her struggle of almost half a century. What those fruits will be we do not know, but she has at least secured a competence, for the defendants, having abandoned litigation, must be willing to settle upon the best terms they can obtain. That the victorious plaintiff will be liberal to her antagonists we do not doubt, and the abandonment of the contest by them is probably due to the circumstance that a favorable compromise has been obtained.

We do not often hear of a grand jury taking upon itself the office of regulating the manner in which the presiding judges of the court of which it forms a part conduct the business of the court. This body is usually regarded as a sort of harmless appendage to the tribunals of justice, possessed indeed of high-sounding titles and supposed in the popular mind to be capable of performing great feats of an unknown character, but whose only real VOL. 16.- No. 2.

to the world that it is capable of greater things. It was engaged upon an investigation for the completion of which the term of the court was not long enough, and Judges Grason and Yellot who held the court, notwithstanding the jury desired it, refused to make the term any longer. For this lack of accommodation the jury forthwith presented said judges for malfeasance in office. Judge Grason (who is upon the Court of Appeals bench) seems to have taken no notice of the presentment; but Judge Yellot procured a warrant for the arrest of the foreman of the jury upon the charge of perjury in making false presentments. This is as far as the matter has gone and probably as far as it will go, as nothing more can be done until September, before which time both sides will see that the proceedings they have taken are neither in the interests of justice nor dignified.

It is said that the divorce lawyer is a thing of the past in Chicago; that he can lawfully advertise his business no longer in the newspapers, and, therefore, He cannot will be unable to obtain customers. advertise that he will procure divorces, but he does advertise that he does law business generally without publicity, and makes no charge unless successful. Forbidding the insertion in newspapers of advertisements asking for divorce causes is one step in the right direction, but it is not enough to put an end to the business. The only way to successfully check that, is to make the obtaining of a divorce difficult. The marriage contract is one that should be sundered only for causes that render its longer continuance destructive to social order, and never for reasons that merely make it an inconvenience to one of the parties. When it is easy to procure divorces, the divorce "shyster" will flourish, no matter what steps are taken to crush him.

On

The enterprise of the New York daily newspapers in procuring early reports of important decisions has been the occasion of remark. The manner in which the decisions of the Federal court of last resort are reported is no exception to the rule, though perhaps the excellence of the method adopted is therein made more conspicuous. each day during the summer, two or three old opinions are served up in the form of a letter from Washington, but the individual who prepares the report is usually very cautious about giving dates. But it is said that even Homer sometimes nods, so it is not remarkable that the getter-up of legal reports for the daily press sometimes forgets himself and assigns a day and date for his late decisions. An

understand that there is no insolvency, but the means of the gentleman referred to are amply sufficient to meet all his indebtedness and leave a considerable surplus. The reason for the bankruptcy proceedings is said to be this. He owns property in Vermont, and has become liable as security for the debts of a Vermont corporation. An action has been commenced in that State by attachment, and the property there owned by the judge seized. If sold under the attachment proceedings, there will be a great sacrifice and a needless one, and to prevent this, the petition in bankruptcy was filed. This action was taken, not because of insolvency, but to prevent it. It is said by those who have an oppor

instance of this is to be found in the New York Herald of Sunday, July 8, where it is announced in a communication dated at Washington, July 7, 1877, that "An important opinion of special interest to New York was handed down by the United States Supreme Court yesterday. It settles the controversy concerning the celebrated Jumel estate," etc. Then follows the opinion in the case of Bowen v. Chase, which appeared in the ALBANY LAW JOURNAL of May 12, 1877, more than two months ago. The same issue contains abstracts of several other decisions of equal antiquity, which are stated to have been delivered on the 6th inst. We do not know that any of the profession are deceived by the misstatements made in connection with the pub-tunity of knowing, that only a short time is neceslication of these cases, but the general public are, as is shown by references, in the interior newspapers, to such cases as late news.

It is announced that the Supreme Court of Pennsylvania have just rendered a decision that is of the greatest importance to the holders of a very common kind of a promissory note in that and some other States, though happily not familiar to the people of this and the New England States. The note includes, besides the promise to pay the principal and interest, an agreement to pay a specified sum as costs for collecting the same if litigation should ensue. These notes, negotiable in form, are transferred by indorsement in the usual way, and it is said that those held in central and western Pennsylvania amount to more than $5,000,000. The question involved was, whether the indorsers of these instruments were liable upon them, and the court held, that without a formal guarantee in connection with their indorsement they were not. The decision is said to destroy the security of the greater part of such notes held by banks and investors in Pennsyl

vania, and the conclusion of the Supreme Court will not be accepted as binding by them, but recourse will be had to the Federal courts for a final determination. With decisions of this character sapping the very foundation of credit, and with stay laws to postpone the collection of adjudicated claims, the State of Pennsylvania would seem to be a very unsafe place to loan money.

A number of the daily newspapers have taken it upon themselves to severely censure one of the judges of the Supreme Court of this State, because he has filed a petition in bankruptcy, and have denounced the act as one unworthy of a judge and one for which there is no precedent. Whether there are instances of judicial bankruptcy we do not know, but the people in this country have, as a rule, paid the judges of the higher courts so meagre salaries, that those dependent solely upon such salaries for support are often in an insolvent condition all their lives. In the case mentioned, however, we

sary to adjust all the indebtedness of the judge satisfactorily, and there would have been no necessity of the present proceeding if it were not for the unfair operation of the Vermont attachment laws.

The method of beginning actions by attachment in vogue in Vermont and Massachusetts and some other States, is one of the main reasons why the bankruptcy law has remained in force so long. Attachment is proper as a provisional remedy to prevent a dishonest debtor, who means to remove his property beyond the reach of his creditors, from accomplishing his purpose, but as an ordinary means of instituting a lawsuit it is unjustifiable. The theory on which such a use of this process is based is, that all debtors are dishonest and all creditors are entirely honest and fair. It is objected to the laws regulating litigation in the western States, that they are too favorable to the debtor, and it may, with as much reason, be said that the New England laws unduly favor the creditor. Besides, from the details of procedure where actions are usually begun by attachment, injustice to third parties who have claims upon the attached property is liable to result. The law may, in form, provide against loss occurring through fraud or mistake, but the remedy is often unavailing to the injured party or available only at so great trouble, expense and risk, as to prevent its adoption. We have been cognizant of several instances where these proceedings have been used to enforce claims that no court or jury would have sustained, and we presume that they are so used very frequently.

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