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angels, but only by mortals, who shall conduct the DEED TO MORTGAGEE.-In order to sustain a deed trial as fairly and impartially as the imperfection of by a mortgagor to the mortgagee of the mortgaged humanity will allow. Lawyers have no right to use premises in satisfaction of the debt, a new consideratheir position to defeat justice, and if fame and for- tion, passing from the mortgagee to the mortgagor, tune cannot be obtained without resorting to leger- need not be shown. (Watson V. Edwards (Cal.), demain and the tricks of the fakir, they are pur

38 Pac. Rep. 527. chased at too great a price. Legal Adviser.


wife, owners of land as tenants by the entirety, made Abstracts of Recent Jecisions.

a joint mortgage of it, with covenants of warranty,

to secure the husband's debt, the mortgagee believConstituTIONAL LAW-CONTROL OF PARKS.—The ing the title to be in the husband alone. The husLegislature may limit the use of a public park by band and wife then conveyed to a third party, who prohibiting addresses to be delivered therein. (Com- reconveyed to the husband, and afterward, by a monwealth v. Davis (Mass.), 39 N. E. Rep. 113.)

similar process, the husband and wife became tenants

by the entirety: Held, that the want of title in the CONTRACT-BREACH OF CONTRACTOR. —Non-pay- | husband at the time of the execution of the mortment of an installment due under a building con

gage was cured by the subsequent vesting of the tract is such a breach of the contract as will justify title in him alone, and that the title of the mortthe contractor in leaving the work. (Golden Gate

gagee was not affected by the subsequent conveyLumber Co. v. Sahrbacher [Cal.], 38 Pac. Rep. 635.)

(Thalls v. Smith (Ind.), 39 N. E. Rep. 154.) CORPORATION-TRANSFER OF CORPORATE STOCK.-

GIFT-WIAT CONSTITUTES.—The apprehension of Where a corporation recognizes a transfer of its

death from some present disease or impending danstock, and treats the transferee as a debtor for the

ger is essential to the validity of a gift causa mortis. subscription, he is substituted for the transferrer as

(Zeller v. Jordan (Cal.], 38 Pac. Rep. 640.) owner thereof, though no entry of the transfer is made on the books. (Kriger v. Hanover Nat. Bank INSURANCE-PLEADING. -In an action on an in[Miss.), 16 South. Rep. 353.)

surance policy, by the terms of which a loss is not

payable until sixty days after notice and proofs of The presi

loss are made by the assured and received by the dent of an insolvent corporation, whose tangi

company, a complaint that states that such notice ble property was in the custody of the law, gave a

and proofs were made immediately after the fire, but bank the company's note, payable on demand, for

neither states nor shows upon its face that sixty a debt not due. Suit was commenced on it the

days thereafter had elapsed before the commencenext day. The company filed its appearance,

ment of the suit, fails to state a cause of action. pleaded the general issue, waived a jury, and con

(First. Nat. Bank of Baton Rouge v. Dakota Fire sented to an immediate hearing. Execution was

and Marine Ins. Co. (S. Dak.], 61 N. W. Rep. 439.) issued, and returned nulla bona, and on the same day the bank filed a creditor's bill. A director of

MARRIED WOMAN--WIFE'S SEPARATE ESTATE-the company was individually liable, as guarantor

INTENTION TO CHARGE.--A book account against a and otherwise, for the debt due such bank. Hela, married woman for medical service rendered her an unlawful attempt to give the bank a preference and her children while living with her husband is over other creditors of such company. (Wisconsin

no evidence of an express undertaking by her to Marine & Fire Ins. Co.'s Bank v. Lehigh & F. Coal subject her separate estate for their payment. Co., U. S. C. C. [I11.), 64 Fed. Rep. 497.)

(Moore v. Copeley [Penn.), 30 Atl. Rep. 829.) COURTS-FRAUDULENT JURISDICTION.-To defeat

MASTER AND SERVANT - FELLOW-SERVANTS. - A the jurisdiction of a court, when the case stated in foreman of a railroad's bridge carpenters, who has the petition is within it, the jurisdictional allegations by the order of his immediate superior (the superinmust have been “fraudulently" made, for the pur

tendent of the bridge-building department) gone on pose of conferring jurisdiction. (Gulf, C. & S. F. a train, to be transported to his place of work, is Ry. Co. v. Wilm [Tex.), 28 S. W. Rep. 925.) not, while being transported, a fellow-servant of

the conductor. (Northern Pac. R. Co. v. Beaton CRIMINAL LAW-HOMICIDE-INTOXICATION.- The fact that defendant was intoxicated at the time the (U. S. C. C. of App.), 64 Fed. Rep. 563.) crime was committed is no justification therefor, MORTGAGE-PAROL EVIDENCE.-An instrument if his mind was still sufficiently clear to plan a which, on its face, is a mortgage, cannot be shown formed design to kill in consequence of which he by parol evidence to have been intended as the condeliberated and premeditated upon the killing. veyance in a conditional sale. (Eckford v. Berry (State v. McDaniel (N. C.], 20 S. E. Rep. 622.) [Tex.], 28 S. W. Rep. 937.)

MUNICIPAL CORPORATION-NEGLIGENCE--DEFECT- RES JUDICATA ENJOINING EXECUTION. -A judgIVE SIDEWALKS.— In an action against a city for ment debtor is not estopped, by the date of the injuries caused by a defective sidewalk, evidence note upon which the judgment is founded, to show, of the condition of the sidewalk two days after the in a suit to restrain the sale of his homestead under injury is admissible where there was no change execution, that the note was not in fact executed therein. (Lolır v. Borough of Philipsburg [Penn.); and delivered until after his homestead deed had 30 Atl. Rep. 822.)

been recorded. (Ingraham v. Dyer [Mo.). 28 S. NEGLIGENCE-PASSENGER ELEVATOR. --In an ac- W. Rep. 840.) tion against the owner of a building for the death

SALE — WARRANTY.- Defendant agreed to ship of a child through the sudden and negligent start

to plaintiff a certain amount of paving stone, acing of a passenger elevator by the elevator boy, evi- cording to dimensions set forth in specifications dence that the boy had on previous occasions started

furnished by plaintiff: Held, that there was no imthe elevator in a like sudden and negligent manner plied warranty that the stone would be suitable for is not admissible. (T. & H. Pueblo Bldg. Co. v.

a particular work, in the absence of evidence that Klein (Colo.], 38 Pac. Rep. 608.)

defendant knew what such work required, and NEGOTIABLE INSTRUMENT — NOTE - RELEASE OF agreed that the stone should be tested by its reINDORSER.-A note indorsed by defendant as an quirements. (Talbot Paving Co. v. Gorman (Mich.), accommodation was transferred by the plaintiff 61 N. W. Rep. 665.) payee to a bank, and, when due, was substituted,

TROVER -- DAMAGES.- In an action of trover for without defendant's knowledge, by two new notes

the wrongful conversion of property, where the by the same makers, and indorsed by plaintiff and trespass is the result of an inadvertence or mistake, another, the original note being surrendered to the and the wrong was not intentional, the value of the nakers: Held, that defendant was discharged from property at the time and place of its couversion liability, although the makers of the original note

must govern the admeasurement of damage. afterward delivered it to plaintiff, that he might (Wright v. Skinner (Fla.), 16 South. Rep. 335.) hold defendant as an indorser. (Green v. Skinner

WILLS CONTEST.-[Miss.), 16 South. Rep. 378.)

Where a physician, who

knew testatrix for several years, and attended her NUISANCE LIABILITY OF PURCHASER. - Where

in her last sickness, testifies fully as to her condithe owner of land erects upon it a structure which

tion on the day the will was executed, stating that is a nuisance to the owner of adjoining land, a pur

her mind seemed clear, and that she answered all chaser or lessee from him who erects the nuisance is not liable for continuing to maintain the offending that was going on about her, he may state that, in

questions intelligently, and appreciated everything structure without notice from the adjoining owner,

his opinion, she was competent to make a will. and a request to remove it. (Philadelphia and R. R. Co. v. Smith [U. S. C. c. of App.). 64 Fed. (McHugh v. Fitzgerald (Mich.), 61 N. W. Rep.

354.) Rep. 679.)

A testator PUBLIC LANDS—LAND CERTIFICATE.— The assignment of a land certificate conveys an equitable title devised land to two persons, stating that such deto the land if the grantor had title, though the vises were to enable them to support his insane transfer was made after a patent had been issued.

brother for life, and also that they were made on (Hume v. Ware [Tex.], 28 S. W. Rep. 935.)

the condition that said devisees “ will agree with RAILROAD COMPANY — DEDICATION

my executor to do this." The insane brother died CROSS RAILWAY TRACKS.- A railroad company to

before the death of the testator: Held, that the which Congress has granted a right of way across provision for support was a condition subsequent, the public lands and sections of lands adjoining and excused, and that the provision for the agreesuch right of way, in aid of the construction of its ment with the executor was a collateral requireroad, has power to dedicate to the public the right ment, to be fulfilled after the title had vested. to cross its tracks and right of way. Northern (Hoss v. Hoss (Ind.), 39 N. E. Rep. 255.) Pac. R. Co. v. City of Spokane (U. S. C. C. of WITNESS PRIVILEGED COMMUNICATIONS, -ConApp. }; 64 Fed. Rep. 506.)

fidential communications betwecn attorney and REAL ESTATE AGENTS-COMMISSIONS.-A real es- client are privileged, and neither client or his attate broker who procures a purchaser for realty, torney can be compelled to reveal them; but such and brings the parties together, is entitled to his communications being overheard by a third party, commission, although the sale is consummated by either by accident or design, such third person can another broker upon different terms. (Wood v. be compelled to testify to them. (Perry v. State Wells (Mich.), 61 N. W. Rep. 503.)

[Idaho), 38 Pac. Rep. 655.)




New Books and New Editions. New York DIGEST, REPORTS AND STATUTES.

This is the first volume of this edition of the Digest FETTER ON EQUITY HORNBOOK SERIES.

of the Reports and Session Laws of the State of New This work, by Norman Fetter, Esq., of St. Paul, York, and is for the year 1894. It is well known, is one of the first of this series, which has been pub- and hardly needs commenting on, that this is a work lished by the West Publishing Company, and which which has been carried on in connection with the is to be followed by several other text books on iin- | Official Series of the State of New York. The comportant subjects. The work is divided into fifteen j piler is Willard S. Gibbons, who has the approval chapters, which discuss “ Nature and Definition of of the official reporters, while the publisher, James Equity,” “Principles Defining and Limiting Juris- B. Lyon, is one of the publishers of the Official Sediction,"

" " The Maxims of Equity," “Doctrines of ries. The Digest appears in weekly parts, and this Equity," "Ground for Equitable Relief," " Prop- | is the first annual which has been published. The erty and Equity,” “Equitable Remedies," " Refor- enterprise of the publisher of this work is admirmation, Cancellation and Acquiring Title," and able, and should receive marked success from those “Ancillary Remedies." The first chapter, on the who, are subscribers to the Official Series, as this “ Nature and Definition of Equity," is most clearly weekly Digest is a most important aajunct to the and concisely expressed, and the work is well Official Series. The publisher has also arranged covprinted, with foot-notes, has an almost exhaustive ers for the weekly issue of the Digest, so that they table of cases cited and a very useful index. It can be conveniently kept together, and this will add should be a very popular work, sor students espe- greatly to their value. Published by James B. Lyon, cially, as it contains, with brevity, the general prin- Albany, N. Y. ciples of equity, clearly expressed, and with abundant opportunity for refinements in principles through

BISHOP ON INSOLVENT DEBTORS; THIRD EDITION. the medium of a number of cases cited. Pub

By James L. Bishop, anthor of “Code Practice lished by West Publishing Company, St. Paul, Minn. in Civil Actions." The last edition of this work

was published over ten years ago, and the present BLACK'S CONSTITUTIONAL LAW--HORNBOOK SERIES. treatise brings down to date the former edition, and

Henry Campbell Black, M. A., the author of deals with the common and statute law of New “Black's Law Dictionary,” “Treatises on Judg- York State relating to insolvent debtors, and inments, ," "Tax Titles,".. Constitutional Prohibitions,"cludes articles 1, 2 and 3 of title 1, chapter 17 of etc., contributes this work to the series which we

the Code of Civil Procedure, and the law of volunhave mentioned and the publishers of this work are tary assignments for the benefit of creditors, includnow engaged in getting out. The work bas many ing the General Assignment Act of 1877, as amended, features which have not been thoroughly gone into together with a chapter on Composition and Combefore this time, such as a discussion of the three position Deeds. There has been a need of this later departments of government and Federal Jurisdic-edition of this work, which has been so constantly tion. The chapter on Executive Power in the used by members of the legal profession. The change States and the one on the Police Power have espe- in the statute law and the addition of many decicially attracted our attention. The work is com- sions to those existing ten years ago, has necessipleted by two chapters the first on “ Laws Im- tated this later edition, which is compiled with even pairing Obligations of Contracts," and the second greater care than the former work. The number of " Retroactive Laws." As with the other books

cases cited is most numerous, and they are arranged in this series, the foot-notes make the rerences either after the section or at the foot of the page, most convenient, and the table of cases certainly

so as to be casy of access. Part I deals with the shows by its size that the references must have been

Discharge of an Insolvent from His Debts;" Part most carefully given and selected. Published by II, of “Proceedings by and against Insolvent DebtWest Publishing Company, St. Paul, Minn.

ors, Imprisoned or Liable to Arrest in Civil Actions."

Part III deals with “General Assignments for the AMERICAN STATE REPORTS; VOL. 40.

Benefit of Creditors." The forms at the end of the This number of these reports contains opinions book are most full and complete, and will be found and decisions from 101 California, 7 Houston's Dela- of great value to active practitioners. The work ware Reports, 93 Kentucky, 45 Louisiana, 54 Min-contains over 750 pages, and the last fifty are devoted nesota, 118 Missouri, 13 Montana, 37 Nebraska, 51 to the general index, which is entire and full, with New Jersey, 142 New York, 50 Ohio, 160 Pennsylva-cross-references to the various subjects, which miakes nia State Reports, 32 Texas Criminal Reports, 85 the book very easy of access. It is published by Texas Reports and 8 Washington Reports. Pub. Baker, Voorhis & Co., 66 Nassau street, New lished by Bancroft-Whitney Co., San Francisco, Cal. York.



say that it was simply equivalent to “extend." The Albany Law Journal.

Those common sense, wise and straightforward

progenitors of ours tried to express what they ALBANY, APRIL 6, 1895.

meant in the simplest terms, and their faithful

souls and shadows would accept as a second Current Lopics.

edition of the Arabian Nights the judicial con[All communications intended for the Editor should be ad

struction of their "intent" expressed in the dressed simply to the Editor of THE ALBANY LAW JOURNAL. Constitution. Those same framers of the ConAll lotters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAWstitution were conversant with the writers of JOURNAL COMPANY.]

the time, and accepted the general ideas of the Sthe Supreme Court did not, on Monday last, political economists who expounded their views

hand down a decision on the Income Tax at the time of the making of the fundamental case, there is still an opportunity to comment

law. on several points which have suggested them

Another idea which impresses the public is, selves recently. In the first place we think that if Congress has the power to divide the there has been too much attempt to throw mys- persons taxed into two classes, viz., those with tery and ambiguity around the meaning of the $4,000 income and those with less, and to colwords which are now to be construed by the lect from the one a part of the revenue of the court of last resort, and that too much credence government and to require the other to pay is given to the theory that the framers of the nothing, that it may at any time contend that Constitution sought to find some strange and it has the power to divide the country into hidden meaning in the words which they many classes, taking from one a greater or less placed in the Constitution. It is true that the proportion of their property, and accepting members of that constitutional convention little or none from the others; giving to him were not able to see all the exigencies which that hath and taking away from him that hạth might arise and to which certain provisions of not, thus encouraging anarchists and socialists, the Constitution would have to apply, but of recognizing the vast body of communists and the ideas which they had on the subject of tax- those who believe in confiscating enough from ation there seems to be no doubt, and it is the rich to properly support their shiftless and useless for any court to attempt to per

useless existences. As Mr. Choate most ably suade an intelligent public that any unusual put it in his argument, in speaking of those meaning was given to the words which are who sympathized with the law: "that spirit found in the Constitution in regard to taxation. which invaded the halls of Congress is now Why should the framers of the Constitution seeking, as we see by its representatives here have attempted to raise some new and unusual this morning, to throw up its entrenchments in form of taxation, or why should they have this court. They are watching for the result sought to clothe their meanings in peculiar of this case. If they carry this they will carry language? They certainly did not intend to their first parallel, and then how easy it will be give the power to the Supreme Court to alter for the whole fortress upon which the rights of the nomenclature and to try to give a meaning the people depend to be overcome.” to a word which it never possessed and which it never could have in the minds of thinking A statement of the condition of the movemen. The members of the convention never ment in favor of a revision of the Code of desired to be understood to say that, while all Procedure is given in this issue.

The unanthe rest of the world understood that an income imity with which the different bar associa

a direct tax, they intended that it tions of the State have acted in this matter is should be considered an indirect tax. Nor so unusual as to be quite extraordinary in view could they have thought that when they said of the fact that upon all questions of practice that all excises, imposts and taxes should be and procedure the bar is exceedingly conservauniform throughout the United States that any tive. The concerted action of the State Bar judicial officers would later attempt to quibble Association, the Association of the City of New with the meaning of the word “uniform" and York and the associations of Brooklyn, Roches

VOL. 51 - No. 14.

tax was

The argu

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ter and Syracuse must be deemed to fairly rep- enlarged upon the theories and arguments resent the sentiment of the bar of the State, and against the sanctioning of the law by the Suwhen to this is added the fact that the action preme Court of the United States. of the State Bar Association upon this subject, ment of Mr. Choate was replete with wit, logic, after an agitation of two years, was unani- discrimination and good judgment. In speakmously in favor of the movement at the close ing of the difference between real estate and of a discussion of the topic, of which notice had the rent of real estate, Mr. Choate said : been given several weeks in advance, it being

If a man seized of land in fee by his deed one of the features of the programme of the granteth to another the profit of those lands to annual meeting, the conclusion is inevitable have and to hold to him and his heires and that the lawyers of the State are decided in maketh livery secundum forman charta, the their views that some action must be taken at

whole land itselfe doth passe.

For what is the a very early day for a revision and rearrange-land but the profits thereof?” That is from ment of the present cumbrous Code of Pro-Coke upon Littleton. That has been law ever cedure. Nor is this action an expression of sentiment confined to the associations of law. It is applied now just the same as it was in the

since in every court in English Christendom. yers throughout the State, but individual mem

time of Coke. It was applied in the State of bers of the bar of standing in the profession, as

New York to the matter of a devise. “A dewell as those occupying official positions, are vise of the interest, or of the rents and profits,

, pronounced in their views in the same direc- is a devise of the thing itself, out of which that tion. The extracts from correspondence of

interest or those rents and profits may issue.” prominent lawyers throughout the State indi- That is the law as administered by the Supreme cates a strong feeling in every section on behalf

Court of the State of New York when your late of the movement. Apparently but a single fear

associate, Mr.Justice Nelson, was a member of it. is expressed with regard to the matter; that is,

The act of 1894 ($ 27) specifies the rents as to the effect that there is danger of greater

a cardinal part and element of this income recomplications in case the work of revision should be confided to incompetent hands. This turn, and every man who goes up to make his

return has to state under oath what rent he got view we do not think is well founded, since Governor Morton may certainly be trusted to

This fiction this difference between the select from the members of the bar of the State

name and the thing, between the substance and competent men who have the confidence of the lawyers and judges, and who are best equipped the shadow — urged by the attorney-general, is for the work proposed.

that, though you cannot tax rent, you can tax There can certainly be no question of poli- the money in the owner's pocket received from

If there is one factitious argument, one tics entering into this matter, more particularly as no compensation is provided for the persons pretense of a reason, one attempt to make a as no compensation is provided for the persons distinction without a difference, that this court to be designated, as they are to be allowed only has uniformly stamped upon with all its might, the expense incurred in the work. We venture to say Mr. O'Grady's bill, with it is just that. This court has repeatedly de

cided that such an argument is wholly unsound. the support of the associations of the bar and

What did the court mean, in Brown v. Marythe lawyers, will receive substantially the unani

land, when it held that a tax on the occupation mous approval of the Legislature, and we hope of an importer is the same as a tax on imports, to see it become a law at a very early day.

and is therefore void ? It is the source, the

substance, that the act strikes at, that the court To fully appreciate the magnificent argu- always looks to, and always has looked to, in ment of the Hon. Joseph H. Choate in regard every form and case that has ever come before to the constitutionality of the Income Tax law, it until now. Chief Justice Marshall said — I it must be remembered that when he began his read from the twenty-eighth page of our princlosing address to the court many learned cipal brief: counselors had been heard who amplified and “It is impossible to conceal from ourselves

last year.


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