Imágenes de páginas
PDF
EPUB

dor of the property, but he alleged that plaintiff took the notes subject to his counter-claim, and he sought to set off the amount of his damages against the notes in its hands. The burden was on him to establish the amount of damages which he sustained in consequence of the failure of the warranty, and this he has not done. The measure of his damages is the difference between the value of the property as it actually was, and what its value would have been had it been as warranted. Pitsinowsky v. Beardsley, 37 Iowa, 9; McCormick v. Vanatta, 43 id. 389. J. J. Case Threshing Machine Co. v. Haven. Opinion by Reed, J. [Decided Dec. 10, 1884.]

CONTRACT-PUBLIC POLICY AGREEMENT NOT TO UPHOLD WILL.-An oral contract entered into by an heir and the father and grandfather of an infant legatee, providing that the heir shall pay the amount of the legacy if the others would not do any thing to uphold the will, and so defeat provisions made for other legatees, is without consideration, contrary to public policy, and void. Gray v. McReynolds. Opinion by Rothrock, C. J. [See 30 Am. Rep. 383.] [Decided Dec. 13, 1884.]

VENDOR AND VENDEE-LIEN ITY OF JUDGMENT.

[ocr errors]

OF VENDOR-PRIOR

Whether a judgment lien takes precedence of a vendor's lien, where the judgment creditors have taken judgment in ignorance of the vendor's lien, appears to be an open one in this State. It was held in Allen v. Loring, 34 Iowa, 499, that the lien of an attachment takes precedence of a vendor's lien, where the attaching creditor acquired his lien without notice of the vendor's lien; and Gilman v. Dingeman, 49 Iowa, 311, there is an intimation that the same rule would apply in favor of the holder of a judgment lien. In Porter v. City of Dubuque, 20 Iowa, 442, it was said: "The right to a lien in favor of a vendor, upon real estate sold to a vendee, is not based upon contract, nor is it properly an equitable mortgage; neither can it be regarded as a trust resulting to the vendor by reason of the vendee holding the estate with the purchase-money unpaid. It is a simple equity raised and administered by courts of chancery." In Allen v. Loring the court, in speaking of the vendor's lien, says: "It is never allowed to override or take priority of equities or rights of third persons which have attached in ignorance of such vendor's lien." In 3 Pom. Eq. Jur., § 1253, the author says: "Whether the grantor's lien is or is not superior to that of subsequent judgments recovered against the grantee, is a question upon which the American decisions are in direct conflict. On principle however, and especially when considered in connection with the universal system of registry, it seems to me clear that the subsequent judgment liens are entitled to precedence." See also Johnson v. Caw. thorn, 1 Dev. & B. 32; Roberts v. Rose, 2 Humph. 145; Gaun v. Chester, 5 Yerg. 205; Gilman v. Brown, 1 Mason, 192. While we do not regard the question presented as entirely free from doubt, we have to say that we think that the rule which subordinates a vendor's lion to a judgment lien acquired without notice is the better rule. A person who has a claim upon two funds as security cannot be required to exhaust one in preference to the other, except where it can be done without injustice to him. Clarke v. Bancroft, 13 Iowa, 320. Cutler v. Ammon. Opinion by Adams, J. [Decided Dec. 9, 1884.]

WISCONSIN SUPREME COURT ABSTRACT.

MECHANICS' LIEN-MUNICIPAL PROPERTY-WATERWORKS-PRIORITY-SUBCONTRACTOR AND SURETY OF

CONTRACTOR.-Section 3314, Rev. Stat. 1878, authorizing a mechanic's lien, does not extend to a building or machinery placed in a building constituting a part of the water-works of a municipal corporation. The publio inconvenience which would result from having such machinery removed is too obvious and grave to require any discussion. The comfort, health, safety and property of the citizens would be greatly endangered by allowing the facilities for procuring water to be suspended, even for a short period. In view of the serious consequences which would result by allowing the lien to attach to machinery thus used, and which more than countervail any private advantage, we are inclined to hold that the provision does not apply in the case before us. True the city has paid into the court the price of the boilers; but suppose it had not doue so; if the lien is given they might be removed. Consequently on grounds of public necessity and convenience, we must hold that the lien did not attach. The case stands upon the same ground as where material is furnished for a county court house, jail, public school building, or other public building, which are held to be exempt from the operation of mechanic's lien laws. See Phil. Mech. Lien, § 179, and cases cited in the notes; also Leonard v. City of Brooklyn, 71 N. Y. 498; 27 Am. Rep. 83; Board Com'rs v. Norrington, 82 Ind. 190; Board Com'rs v. O'Conner, 86 id. 531. In Burnham v. City of Fond du Lac, 15 Wis. 193; Buffham v. City of Racine, 26 Wis. 449; Merrell v. Campbell, 49 id. 535, it was held that a municipal corporation was not subject to the ordinary process of garnishment. In 1873 the Legislature enacted chapter 150, which is very nearly the same as section 3328, Rev. St. This section gives the subcontractor who has done work or furnished material to any principal contractor for the construction and repair of any building or machinery for any county, town, city, village or schooldistrict an action therefor agaiust such principal contractor, and such county, town, city, etc., jointly for the recovery thereof. "But no judgment shall be rendered against any defendant therein other than such principal contractor, for any amount greater thau the amount due from it to such principal contractor at the time of the commencement of such action." On rendition of judgment in such action against the principal contractor, the court may also render judgment against the county, town, city, etc., for the amount due from it to the principal contractor, when the suit was commenced, or to a sufficient amount to pay the judgment recovered against the principal contractor, and payment thereof shall discharge its indebtedness to such principal contractor for the amount paid. In Klaus v. City of Green Bay, 34 Wis. 629, the remedy thus given was considered to be in the nature of a garnishment proceeding against the political corporation or municipality, where it could discharge its indebtedness to the principal contractor by paying the subcontractor the amount due him from such principal contractor. But the subcontractor is expressly limited in his recovery to the amount due from the municipal corporation to the principal contractor when the suit was commenced. In this case the court finds that the city of Madison was not indebted to the Libbeys at the time of the commencement of this action. The correctness of this finding is not questioned; therefore there could not be any recovery against the city in this case. Raduenz v. School Dist., 42 Wis. 397. Wilkinson v. Hofman. Opinion by Cole, C. J. [See 37 Am. Rep. 189; 33 id. 116.-ED.]

[Decided Dec. 16, 1884.]

STATUTE OF FRAUDS-CONVEYANCE BY FATHER TO SON.-Where a father executes a deed of conveyance of his real estate, and a bill of sale of his personal

[ocr errors][merged small]

have full power and discretion in grading or filling up their streets, and need make no provision for carrying off the surface water of adjoining lands, or against its back-flow upon such lands (Lynch v. Mayor, etc., 76 N. Y. 60), and when it has made such provision by a sewer or a drain it may discontinue or abandon the same if such owners are left in no worse condition than they would have been if such sewer or drain had never been made. City of Atchison v. Challiss, Kan. 603. The authorities cited by the learned counsel of the appellant are cases of nuisance and condemnation. This is neither. The injury is caused by the occasional rains and melting snows, which create tempo

property, to one of his sous, upon condition that the
son should give him one-half of the buildings and one-
half of the crops during the lives of himself and wife,
and whoever should first die, one-third of the crops
to the survivor, and pay to his other son and daughter
certain sums of money after his decease, aud also to
liquidate a mortgage on the land, such conveyance
and transfer of his property is a trust for his use, and
is void under the statute of frauds (Rev. St., § 2306) as
against existing or subsequent creditors, and the fact
that the son had previously made advances of consid-
erable sums of money to the father, does not change
the character of the conveyance or strengthen his title
to the property as against such creditors. Disregard-rary surface water, and the plaintiff's land is in no
ing mere form, and looking only to the substance of
the transaction, as it is our plain duty to do, the con-
veyance of his property by the intestate to the defend-
ant created a trust in the property conveyed for the
support and maintenance of the intestate and his wife
during their lives, or during the life of either of them,
and for the payment of specified sums of money after
their decease to their other children. True, the con-
dition expressed in the conveyance is not, in form, for
such maintenance, but that is its plain and obvious
import. Had the defendant failed to furnish the in-
testate and his wife the stipulated buildings, and to
deliver to them the stipulated proportion of the crops
raised on the farm, thus depriving them of the means
of subsistence, a court of equity would promptly have
rescinded the conveyance and restored the property to
the intestate. Rogie v. Bogie, 41 Wis. 209; Bresna-
ban v. Bresnahan, 46 id. 385; Bishop v. Aldrich, 48 id.
621; Blake v. Blake, 56 id. 392; Delong v. Delong, id.
514. Severin v. Rueckerick. Opinion by Lyon, J.
[Decided Dec. 16, 1884.]

MUNICIPAL CORPORATION-SURFACE WATER-DAMNUM ABSQUE INJURIA.—Where the owner of land suffers injury from the flow of surface water caused by an improvement of the street, but the land is too remote to entitle the owner to compensation for land taken for public use, the injury is consequential only, and it has been too often decided by this court that such an injury is damnum absque injuria to be an open question, and such are the decisions elsewhere, where the common-law rule prevails. "According to that rule no natural easement or servitude exists in favor of the owner of the higher ground for the flow of mere surface water over the lower estate, but the owner of the latter may detain or divert the same without rendering himself liable in damage therefor." "An owner has the right to obstruct and hinder the flow of mere surface water upon his land from the land of other proprietors, and he may even turn the same back upon or on to the land of his neighbor, without incurring liability for injuries caused by such obstructions." "Mere surface water, which is supplied by rains or melting snow flowing in a hollow or ravine on the land is not a water-course." O'Connor v. Fond du Lac, A. & P. Ry. Co., 52 Wis. 526. In that case the chief justice reviews the previous decisions of this court on that question, and no difference is made between the case of a railroad company grading its track and a municipal corporation grading its streets so far as mere surface water is concerned; and Hoyt v. City of Hudson, 27 Wis. 656, which is directly in point, is cited, as well as Pettigrew v. Village of Evansville, 25 Wis. 223; Fryer v. Warne, 29 id. 511; and Eulrich v. Richter, 37 id. 226. Whether this is mere surface water and not a water-course is a question of fact which the jury determined against the plaintiff, and there is nothing which would even imply that the flow of such surface water was so great or constant as to be so near a watercourse as to be an exception to the rule, which some authorities seem to recognize. Municipal corporations

sense taken for public use. This is the vital and only question in this case, and as we have seen, the injury by the back flow of mere surface water, however caused, by the reasonable improvement or use of the land below by the owner thereof is without remedy. The principle is as well established by reason as by the decisions of this and other courts, and may not be yielded or compromised to meet seeming cases of hardship. Waters v. Village of Bay View. Opinion by Orton, J.

[Decided Dec. 16, 1884.]

JUDGE HOLMES ON THE BENCH AND THE BAR.

T is strange that although some of the jokes at the late dinner of the Boston bar were widely copied, the attention of few outside of Massachusetts has been called to the speech then made by Judge Oliver Wendell Holmes, Jr., which we publish for the benefit of our readers. It is refreshing in these days when the practice of the law is viewed by so many, not only of the laity, but even members of the bar, simply as a means of bread-winning, with no higher aims and ethics than those of the traders in stocks and land; and when we seem to have yielded without a struggle to the players that distinctive title of the profession of which our predecessors were so proud to read the words of one who, after reaching eminence in the theory, the history and the administration of justice between man and man, still regards his calling with the same passion that the painter feels for his art. Even a layman should be pleased and interested by this outburst of Elizabethan English in our prosaic age over what too many, even of its students consider a dry and technical branch of learning.

"The court and the bar are too old acquaintances to speak much to each other of themselves or of their mutual relations. I hope I may say we are too old friends to need to do it. If you did not believe it already, it would be useless for me to affirm that in the judges' half of our common work the will at least is not wanting to do every duty of their noble office; that every interest, every faculty, every energy, almost every waking hour is filled with their work; that they give their lives to it, more than which they cannot do. But if not of the bench, shall I speak of the bar? Shall I ask what a court would be, unaided? The law is made by the bar, even more than by the bench; yet do I need to speak of the learning and varied gifts that have given the bar of this State a reputation throughout the whole domain of the common law? I think I need not-nor of its high and scrupulous houor. The world has its fling at lawyers sometimes, but its very denial is an admission. It feels what I believe to be the truth, that of all secular professions this has the highest standards.

And what a profession it is! No doubt every thing 18 interesting when it is understood and seen in its connection with the rest of things. Every calling is great when greatly pursued. But what other gives

such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life—so share its passions, its battles, its despair, its triumphs-both as witness and actor?

But that is not all.

What a subject is this in which we are united! This abstraction called the Law, wherein as in a magic mirror we see reflected, not only our own lives, but the lives of all men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be wooed with sustained and lonely passion-only to be won by straining all the faculties by which man is likest to a god. Those who, having begun the suit, turn away uncharmed, do so either because they have not been vouchsafed the sight of her divine figure, or because they have not the heart for so great a struggle. To the lover of the law, how small a thing seem the novelist's tales of the loves and fates of Daphnis and Chloe. How pale a phantom even the Circe of poetry transforming mankind with intoxicating dreams of fiery aether and the foam of summer seas and glowing greensward, and the white arms of women! For him no less a history will suffice than that of the moral life of his race. For him every text that he deciphers, every doubt that he resolves adds a new feature to the unfolding panorama of man's destiny upon this earth. Nor will his task be done until, by the furthest stretch of human imagination, he has seen as with his eyes the birth and growth of society, and by the furthest stretch of reason he has understood the philosophy of its being. When I think thus of the law, I see a princess mightier than she who once wrought at Bayeux, eternally weaving into her web dim figures of the ever-lengthening past-figures too dim to be noticed by the idle, too symbolic to be interpreted except by her pupils, but to the discerning eye disclosing every painful step and every world-shaking contest by which mankind has worked and fought its way from savage isolation to organic social life.

But we who are here know the law even better in another aspect. We see her daily, not as anthropologists, not as students and philosophers, but as actors in a drama of which she is the providence and overruling power. When I think of the law as we know her in the court-house and the market, she seems to me a woman sitting by the wayside, beneath whose overshadowing hood every man shall see the countenance of his deserts or needs. The timid and overborne gain heart from her protecting smile. Fair combatants, manfully standing to their rights, see her keeping the lists with the stern and discriminating eye of even justice. The wretch who has defied her most sacred commands, and has thought to creep through ways where she was not, finds that his path ends with her, and beholds beneath her hood the inexorable face of death.

Gentlemen, I shall say no more. This is not the moment for disquisitions. But when, for the first time, I was called to speak on such an occasion as this the only thought that could come into my mind, the only feeling that could fill my heart, the only words that could spring to my lips, were a hymn to her in whose name we are met here to-night-to our mistress, the Law.

NEW BOOKS AND NEW EDITIONS.

ESTEE'S PLEADINGS.

Estee's Pleadings, Practice and Forms. Adapted to actions and special proceedings under Codes of Civil Procedure. By Morris M Estee. Third edition, revised, enlarged and rewritten by Carter P. Pomeroy. Three volumes. San Francisco: A. L Bancroft & Co., 1885. This we believe is the most elaborate and complete work on this subject, and it is of good repute. Some

such work is indispensable to the practitioner under a Code, and we know of none better than this. It is conveniently arranged, and generally we find the forms very good. It is well printed, and is not padded.

BISHOP'S DIRECTIONS AND FORMS.

Practical Directions and Forms for the grand jury room, trial court and court of appeal in criminal cases, with full citations from the reports and other books, and a general index to the author's series of criminal law works. By Joel Prentiss Bishop. Boston: Little, Brown & Co., 1885.

Although Mr. Bishop has a mean opinion of law-journal book notices, we shall not be deterred from giving an honest opinion about his books. This seems to us, from a cursory examination, to be like all his other works, perfect in its way. We can say no more, and can honestly say no less. The general index to his works on criminal law is extremely valuable. The book is beautifully printed.

LAWSON'S PRESUMPTIVE EVIDENCE.

The Law of Presumptive Evidence, including presumptions both of law and of fact, and the burden of proof, both in civil and criminal cases, reduced to rules. By John D. Lawson. San Francisco: A. L. Bancroft & Co., 1885. The readers of this journal will form a good opinion of this excellent treatise from the large portions of it originally published in these columns. It is written on the true plan of codification, and it is most admirably executed. It is hoped that the author will follow it up in the same way, and his later contributions to this journal give promise that he will. Mr. Lawson now stands at the head of the younger law writers,and this work will confirm his position.

WE

NOTES.

E have always been aware that it is sinful to smile in church; our mothers have told us that; the punishment we always thought was being handed over to the tender mercies of that august official, the beadle. It seems however when we attain years of discretion the punishment for smiling in church is a fine of 5s. A well-known merchaut ventured the other day while in church to remark to a friend that "the choristers looked well in their night shirts," referring to their surplices. The remark caused a smile; the smile cost 5s., being held to be "brawling." The smile was really uncalled for; there was nothing funny in the remark; but was not the punishment also uncalled for? It is only fair to mention that the decision was upset on appeal; so that we may still look amiable when in church without being fined for smiling.-Gibson's Law Notes.- -Some English magistrates decided that a "crawfish "' is not a fish, but the judges thought otherwise.The following actually occurred in court a few days ago: After a long wrangle between judge and counsel-Judge: "Well, Mr. - if you do not know how to conduct yourself as a gentleman, I can't teach you." Counsel: "That is 80, my lord.-Law Times. (This really occurred in the ark.-ED.)-A Legal Subtlety.-At Hastings a respectably-dressed man, in a hopeless state of intoxication, was found in a bath chair, drawn by a chairman, and was taken into custody. It appeared however that the accused was not removed from the bath chair until he got to the police station, and the bench holding that the prisoner had not been found drunk in the highway, dismissed the case.

[ocr errors][merged small][ocr errors][ocr errors][ocr errors]

The Albany Law Journal.

ALBANY, MAY 30, 1885.

CURRENT TOPICS.

YOMMON law is uncertain as to what constitutes larceny. The St. James Gazette says: "If a sovereign is given to a cabman by his fare, both parties believing it to be a shilling, and an hour later the cabman discovers the mistake and keeps the sovereign, has he stolen it? The argument of this question before the Court for Crown Cases Reserved last week afforded excellent entertainment to a professional audience. The difficulty is, that to 'take and carry away animo furandi' is an essential part of the common-law definition of larceny, and that in this case the cabman did not form a felonious intention about the sovereign when he took it and carried it away, because he then believed it to be a shilling. On behalf of the Crown it was argued that either he took it when he knew it was a sovereign or the felonious intention which he subsequently formed relates back to the time when he took it. Before the argument had gone far it was apparent that the five judges who were hearing the case were not agreed, and while Lord Coleridge had no doubt that the sovereign was stolen, Mr. Justice Stephen was equally positive that it was not. Mr. Justice Cave further complicated matters by throwing out a suggestion that the cabman might perhaps have committed the statutory offense called larceny by a bailee. In the result the Lord Chief Justice announced that the Bench was so seriously divided in opinion that there must be a further argument before the full court- that is the whole Queen's Bench Division; so that the frequenters of the law courts will again be gratified by the most impressive legal spectacle left to us in these prosaic days, that of twelve or fourteen judges all sitting together to decide a question of criminal law." It would be bad indeed to have a statute exactly defining larceny, for then suitors could not be treated to this "impressive legal spactacle."

Lord Bramwell thinks the contract between Shylock and Antonio was contra bonos mores and void. In this he is not alone nor original. We have adVocated that view for years. The present comment came about in this way, as we learn from the London Telegraph "The Home Secretary lately ventured to assert that Lord Bramwell entertained so vast a reverence for all kinds of property that if he had been called upon to decide the legal dispute in 'The Merchant of Venice,' he would infallibly have declared that Antonio's pound of flesh must be given to his creditor. Lord Bramwell, with the frankness which usually characterizes him, has met Sir William Harcourt's little joke by an answer delivered from the judicial bench. In the course of an Appeal Court case the learned judge took occasion to VOL. 31-No. 22.

respond to the witty illustration of the Home Secretary. Far from expressing the slightest shame or penitence for the views which he holds as to the sacredness of property of all descriptions, Lord Bramwell actually seems to glory in them. The session of the Court of Appeal was probably the earliest opportunity that was presented to him of answering Sir William Harcourt's banter; but at all events, he seized on the opportunity and turned it to the best account. * * * Portia's statement of the case would, Lord Bramwell tells us, have induced him to give the pound of flesh to the usurer, except for one little flaw in her argument. The flesh had not been 'appropriated,' and could not, therefore, be regarded as property to which Shylock had a good legal right until it had been cut from Antonio's quivering body. Supposing Lord Bramwell to have been sitting in banco with the Doge of Venice on the occasion of the famous trial, and the pound of flesh had been lying on a table, ready cut; in that case the decision of the English judge would have been in favor of the plaintiff's claim to the possession of the horrible piece of 'property.' But then, as Lord Bramwell truly remarks, in order to get the flesh, assault, and even murder, would have had to be committed, and therefore the contract was null and void from the beginning. * The moment Shylock had advanced toward his victim, knife in hand, he would have been technically guilty of an assault with intent, and would have been obliged to appear at the police court of the period next morning to hear what the sitting magistrate thought of the offense."

* *

[blocks in formation]

Dr. Hammond, the younger- - not the novelist has discovered that hanging, producing strangulation without breaking the neck, is a humane, not to say very pleasant mode of execution. It is the breaking of the neck that is barbarous, painful, and not instantaneous. This - at least, the part relating to mere strangulation - he has demonstrated by experiments on his own person, by means of a silken cord, a tourniquet and trustworthy friends to relax the pressure. Dr. Hammond has experienced the most delightful sensations. His gifted father ought to put them in his next novel. But this

seems dangerous trifling -- something like jumping off Brooklyn bridge -- and if the assistants should miscalculate or any thing should go wrong, the world would be deprived of an enterprising young physician. Beside, we fear that this will inspire others to try the same experiments without the same precautions and experience, with fatal results. This would be bad for the bystanders surviving. All this nonsense ought to stop. Let us go on hanging after the old fashion, and let us not be persuaded not to break necks because strangulation is pleasanter.

The question of delays in the administration of justice is to be reported upon, at the next meeting of the American Bar Association, by a committee of which we believe Mr. David Dudley Field is chairman. This topic, under the title of "The Tardiness of Justice," is discussed by our townsman, Judge W. L. Learned, in the current number of the North American Review. The writer alludes to many of the well recognized causes of delay, and suggests some ameliorations, which we have not space to dwell upon. The most striking point made by him is the following: "But under our system, following the English, appellate courts seem at times to care more about making precedents than about deciding the case in hand justly. This comes from the fact, so often discussed, that our law is largely 'judgemade' law. Instead of being guided by the rules of codes of law, or by a sound judgment as to the merits of the case, appellate courts are constantly searching for precedents in other cases, and are anxiously making a precedent out of the case in hand. When a case is argued, the question is not whether justice was done in the court below; but it may be whether some witness said something which might be considered irrevelant- perhaps no more important to the merits than whether he stood at right angles to the jury when he testified." The article is intelligent and timely, and will enhance the interest with which the report and discussion on the subject at Saratoga are awaited.

The English journals do not treat our ex-dignitaries with due reverence. Here is what the London Law Times says of our late president: "The American journals announce that Mr. Arthur, the late president of the United States, has resumed his law practice with his old firm,' and give interesting details as to the furniture of his office, which is stated to be of 'mahogany, with cheery trimmings.' Litigants across the Atlantic may be congratulated on the opportunity thus afforded of obtaining for six and eightpence (or the American equivalent) the opinion of the late chief magistrate of one of the greatest States in the world, and the taxing officers of the American courts will find peculiarly fascinating employment in cutting down the bills of costs of an ex-president." We are sure that the material of the office furniture of so good a cabinet-maker as Mr. Arthur is not irrelevant. But

we guess that the "trimmings rather than "cheery."

IN

[ocr errors][merged small]

NOTES OF CASES.

́N Johnson v. Rogers, 35 Hun, 267, it was held that a deed from husband to wife is void at law. The court said: "In other words can a husband deed to his wife? The authorities are conflicting and leave the question in doubt. In the case of Meeker v. Wright, 76 N. Y. 262, the argument of Danforth J., would seem to support the deed, but his opinion was not concurred in by a majority of the court. In the case of Thompson v. Commissioners, etc., 79 N. Y. 54-63, the plaintiff at the time of the execution of the mortgage was the owner in fee of one-third of the premises. She subsequently received a deed from her husband of the other two

thirds. It was held that the defendants were not in a position to raise the question as to plaintiff's right as guarantee of her husband; and Miller, J., in concluding his opinion, says: "Under recent legislation the husband has a right to convey to his wife," citing the case of Meeker v. Wright, supra. In the case of Bertles v. Nunan, 92 N. Y. 152; S. C., 44 Am. Rep. 361, Earl, J., in delivering the opinion of the court, says that the common-law disability of husband and wife, growing out of their unity of person, to convey to each other still exists. Inasmuch as the determination of this question was not necessarily involved in the case of Bertles v. Nunan, we must regard the question as unsettled by the Court of Appeals and consequently open for consideration in this court. At common law neither husband nor wife could convey to each other for the reason that in law they were regarded as one person. It thus becomes a question as to how far the unity of person between husband and wife has been abrogated by the statutes upon that subject. And in construing these statutes we must bear in mind the rule that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language of the statute absolutely requires." (See ante, 361). "It is now argued that because of the amendment of 1862 of section 7, leaving out the words 'except her husband,' that discloses a legislative intent to abrogate the common-law rule of unity of person to the extent that a husband may now convey real estate directly to his wife. Such however does not appear to us to have been the purpose of the amendment. If it was, why should the words have been retained in section 8 of the act, and why is section 3 of the act of 1849 left unchanged? The reason is quite apparent; the section (§ 7 chapter 90 of 1860) provided that any married woman may while married sue and be sued in all matters having relation to her property which may be her sole and separate property, or which may hereafter come to her by descent, devise, bequest, purchase, or the gift of any person except her husband,' etc. Under this provision,

« AnteriorContinuar »