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their joint lives be entirely appropriated by him. It is not important in this case to determine what the relation of the wife to the land in such a case now is during the life of her husband.

It is said that the reason upon which the commonlaw rule under consideration was based has ceased to exist, and hence that the rule should be held to disappear. It is impossible now to determine how the rule in the remote past obtained a footing, or upon what reason it was based, and hence it is impossible now to say that the reason, whatever it was, has entirely ceased to exist.

There are many rules appertaining to the ownership of real property originating in the Feudal ages, for the existence of which the reason does now exist, or is not discernible, and yet on that account courts are not authorized to disregard them. They must remain until the Legislature abrogates or changes them, like statutes founded upon no reason or upon reasons that have ceased to operate.

Ie was never, we believe, regarded as a mischief, that under a conveyance to husband and wife they should take as tenants by the entirety; and we have no reason to believe that it was within the contemplation of the Legislature to change that rule. Neither do we think that there is any public policy which requires that the statute should be so construed as to change the common-law rule. It was never considered that that rule abridged the rights of married women, but rather that it enlarged their rights, and improved their condition. It would be against the spirit of the statutes to cut down an estate of the wife by the entirety to an estate as tenant in common with her husband. If the rule is to be changed it should be changed by a plain act of the Legislature, applicable to future conveyances; otherwise incalculable mischief may follow by unsettling and disturbing dispositions of property made upon the faith of the common-law rule. The courts certainly ought not to go faster than the Legislature in obliterating rules of law under which many generations have lived and flourished, and the best civilization of any age or country has grown up. We are therefore of opinion that the judgment should be affirmed with costs.

"All concur, except Danforth, J., who dissents upon the ground that the common-law doctrine was abrogated by the statutes which enabled a wife to acquire and hold separate estate, and for the reasons stated by him in Meeker v. Wright and Schultz v. Schultz, and Finch, J."

H. E. SICKELS, Reporter, per C.

MINNESOTA SUPREME COURT ABSTRACT.

BILL OF EXCHANGE-BEFORE ACCEPTANCE IS NOT ASSIGNMENT OF DRAWER'S CREDIT WITH DRAWEE.-A bill of exchange or draft payable generally, and not out of any particular fund or debt, will not amount before acceptance to an assignment, to the holder, of funds in the hands of the drawee belonging to the drawer, or of a debt due from the former to the latter. And this rule is not affected by any thing said between the parties at the time of making the draft. A draft for the whole of a particular specific fund or debt amounts to an assignment of such debt or fund, even without acceptance. So also when a draft or order has been accepted, whether it be drawn on general funds or a specific fund, it is said to amount to an assignment of the fund; for in such case the acceptor, by his assent, binds and appropriates the fund for the use of the payee of the draft or order. But there is no case which holds that a bill of exchange payable gen

erally amounts before acceptance to an assignment of funds in the hands of the drawee belonging to the drawer, or of a debt due the latter from the former, or gives the holder of the draft any lien, legal, or equitable, upon such fund or debt. Mandeville v. Welch, 5 Whart. 277; Luff v. Pope, 5 Hill, 413; Harris v. Clark, 3 N. Y. 93; Cowperthwaite v. Sheffield, id. 243; Winter v. Denny, 5 id. 525; Chapman v. White, 6 id. 412; Hopkins v. Beebe, 26 Penn. St. 85. Lewis v. Lawrence. Opinion by Mitchell, J.

[Decided Jan. 18, 1883.]

COVENANT · -RUNNING WITH LAND-TO KEEP UP WATER SUPPLY IN STREAM.-A covenant on the part of a water company, which diverted for its own pur pose water accustomed to flow in a stream upon which a mill owner had a privilege, to keep the stream supplied as it formerly had been, held a continuing covenant running with the land upon which the privilege was located. A covenant runs with land when either the liability to perform it, i. e., its burden, or the right to take advantage of it, i. e., its benefit, passes to the assignee of the land. Savage v. Mason, 3 Cush. 500. To enable a covenant to run with land so as to give the assignee its benefits, the covenantee must be the owner of the laud to which the covenant relates; but the covenantor may be either a person in privity of estate with the covenantee or a stranger, while with reference to the subject of the covenant it is sufficient that it be for something to be done, or refrained from, about, touching, concerning, or affecting the covenantee's land (though not upon it), if the thing covenanted for be for the benefit of the same, or tend to increase its value in the hands of the holder. Spencer's case and notes, 1 Smith. Lead. Cas. (7th Am. ed.) 116, where all the learning upon the subject appears to be collected; Packenham's case, 42 Ed. III. 3, abstracted in 1 Barn. & C. 176; Anson, Cont. 220; Pollock, Cont. 219; Rawle, Cov. 334, and notes: Norman v. Wells, 17 Wend. 148; Norfleet v. Cromwell, 70 N. C. 634; Allen v. Culver, 3 Denio, 284; Van Rensselaer v. Smith, 27 Barb. 146; Nat. Bank v. Segar, 39 N. J. Law 173. Shaber v. St. Paul Water Co. Opinion by Berry, J.

[Decided Feb. 6, 1883.]

THE

COURT OF APPEALS DECISIONS

IE following decisions were handed down Tuesday, May 1, 1883.

Judgment affirmed with costs-People v. Home Ins Co.; Pomeroy v. Israel; Albany City National Bank v. City of Albany; Fleming v. Village of Suspension Bridge; Samuels v. Weaver.-Judgment reversed, new trial granted, costs to abide the event-Chamberlain v. Taylor.-Judgment of General Term reversed, and judgment entered for plaintiff for $1,848.45, from January 15, 1882, with costs-People v. Fire Associa tion of Philadelphia.-Orders of Special and General Terms reversed, without cost, and proceedings remitted to Special Term that discretion may be exercised upon the merits-Tilman v. Syracuse, Binghamton & New York Railroad Co.-Order of General Term affirmed, that of the Special Term affirmed with costs-Murtha v. Carley.-Appeal dismissed with costs-Milligan v. Lalance & Grosjian Manufacturing Co.; American Hosiery Co. v. Riley.-Order affirmed on the authority of the case of Phillips v. Mayor, etc., 88 N. Y. 245-People, ex rel. Clark v. French.-Motion to strike cause from calendar, granted with ten dollars costs-People ex rel. Mulaney v. Ellis.

The Albany Law Journal.

ALBANY, MAY 12, 1883.

CURRENT TOPICS.

HE New Jersey Law Lournal says: "The recent

lute, debauched and bacchanalian instrument than the fiddle, for example.

Mr. Theodore Bacon reprints from the New York State Bar Association Reports his paper on Professional Comity, on which we commented at the time it was read. He does us the honor of appending the remarks we then made upon his paper, and also

THE
Tdecision of the Court of Appeals of New York gives his own rejoinder. Mr. Bacon also prints his

in the matter of the accounting of Horace Gray, et al., executor, which we publish in this number of the Journal, is in conflict with the decision of the Mercer County Orphans' Court in the matter of Voorhees, executor, 3 N. J. L. J., 211, which was followed by the Essex Orphans' Court, in the matter of Post, executor, in November, 1882. The New York court holds that executors are not responsible for loss upon securities found in the testator's estate, merely because they have failed to convert them into money without delay, but are only required to act with prudence and discretion in the conversion of the estate within a reasonable time with a view to the condition of the market and the nature of the securities. This is certainly the rule which must prevail. The other rule would compel executors deliberately to sacrifice the estates in order to protect themselves from risk of personal loss." We agree with the Journal, and cannot conceive how the contrary view could ever have obtained. Mr. Schouler, in his work on Executors and Administrators, just published, takes the view adopted by our

court.

The same journal says: "Our Legislature seems to consider itself omnipotent, even more powerful than the British Parliament. It has passed an act entitled 'an act to limit the age and employment hours of children, minors and women.' Parliament did not attempt to carry out the Malthusian plan for limiting the production of children, but the New Jersey Legislature has undertaken to limit the age of children already produced. That part of the act which proposes to limit the age of women must have been passed for the benefit of spinsters who find themselves unable to preserve the charms of their youth." The women ought to be very thankful for any act to limit their age. This act reminds us of a bill proposed (we believe it did not pass) in our last legislature, making it penal to sell or give any dime novel or other work of fiction to any minor. This would have cut off many good and many "goody" books, such as Sanford and Merton, and the Rollo books, and Miss Edgeworth's works, and would not have interfered with the "Police Gazette," or the "Day's Doings," and the like. In Oregon they have a law "to regulate hurdy-gurdy dancehouses," and in State v. Tilley, 9 Or. 125, it is held that a house kept for public dancing simply is not a "hurdy-gurdy dance-house." The court say that "hurdy-gurdies" are a species of public dancing, but decline to define the term particularly. We are thus left in the dark, as perhaps the dancers are, and must infer that the "hurdy-gurdy" is a more dissoVOL. 27-No. 19,

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paper read before the American Social Science Association, last September, on Professional Ethics. Here the essayist takes a rather but not altogether gloomy view of our profession. He deplores the excessive number of lawyers, and says that a considerable proportion of them may be "contemptible and beneath contempt in juristic learning and general attainment;" but he thinks that a larger share to-day, probably, than ever before, of the intelligence, the intellectual force, and the civic activity of the community is found in the ranks of this vast and semi-organized army," and "the influence of the bar is probably greater than a century or a generation ago." But yet he is inclined to believe that the prevalent estimate of our lawyers regards a false morality as their established standard of duty, makes a current jest of a lawyer's conscience and a lawyer's honesty, and recognizes the custom of excusing or palliating a crafty act or a disingenuous word because it is a lawyer's. He also admits the existence in the legal ranks of examples of “as base, deliberate and ingenious depravity as any that less favored by fortune or cunning have gravitated into the penitentiary," and among the respectable members "a half-sad, half-humorous consensus" as to this fact, and "an altogether sad acquiesence " in it. For this reputation and this fact he roundly blames the avowals of distinguished jurists as to the proper basis of professional conduct. He severely reprehends the extravagant utterance of Lord Brougham as to the lawyer's duty. He very successfully defends the profession against the accusation of advocating causes which they know to be wrong. To illustrate this point he argues that while he deems the usury law "barbaric" and "atrocious "(probably Mr. Bacon is not a borrower)-he deems it quite right for a lawyer to set up the defense of usury for his client, because it is the law, however much he may and should despise his client. He finds "no lower ethical basis of action for the advocate than any other member of society." Mr. Bacon has thoughts of his own, and has the honesty and independence to speak them out. That is the reason why we always admire although we may not agree with him. The appended discussion of this paper is somewhat amusing. Judge Peabody thought that lawyers seldom do any thing very wrong, and scarified those who talk of the "low tone of the profession." Prof. Wayland was more vague, because he agreed with Judge Peabody and Mr. Bacon too. Mr. Lewis S. Delafield thought there was a good deal of justice in the popular estimate of the profession, and that the profession would continue to decline unless a great many Jonahs were

thrown over board; and he took pains to say that the Jonahs are not all in the cities. Prof. Dwight thought the trouble, if there is any, springs from a low standard of professional education. Prof. Baldwin believed the tone of the legal profession was never so high as now, and said he knew of two attorneys being disbarred, one in Missouri and one in Maryland, and Rev. Dr. Wayland wanted to know if "it is not the case that in many instances the most highly educated attorneys prove the most facile and unscrupulous instruments as the advocates of large corporations and monopolists?"

The

It is a comfort to learn that lawyers are not so unpopular now as they were a hundred years ago. Just as the most saintly public men, such as Washington, were worse abused in their own times than the worst men of our day now are, so the lawyers used to be more cordially hated and despised than now. In his recent fascinating "History of the American People, " Mr. McMaster, the American Macauley, gives the following account of public feeling in Massachusetts toward lawyers in 1787: "With the merchants, in the condemnation of the multitude, were joined the lawyers. Indeed of the two classes, the members of the bar were the more hated and despised. The mere sight of a lawyer as he hurried along the street was enough to call forth an oath or a muttered curse from the louts who hung round the tavern. The reason is plain. During the years of the war the administration of justice had been almost wholly suspended. After the war, debt had increased to a frightful extent. combination of these two circumstances had multiplied civil actions, to a number that seems scarcely credible. The lawyers were overwhelmed with cases. The courts could not try half that came before them. For every man who had an old debt, or a mortgage, or a claim against a Tory or a refugee, hastened to have it adjusted. While therefore every one else was idle, the lawyers were busy, and as they always exacted a retainer, and were sure to obtain their fees, grew rich fast. Every young man became an attorney, and every attorney did well. Such prosperity soon marked them out as fit subjects for the discontented to vent their anger on. They were denounced as banditti, as blood-suckers, as pick-pockets, as wind-bags, as smooth-tongued rogues. Those who having no cases had little cause to complain of the lawyers, murmured that it was a gross outrage to tax them to pay for the sittings of courts into which they never had brought and never would bring an action. Meanwhile the newspapers were filled with inflammatory writings. The burdens that afflicted the State were attributed to the attorneys. One paper repeatedly insisted that this class of men should be abolished. Another called upon their electors to leave them out of office, and to bid their representatives annihilate them. The advice was largely followed. In almost every country town a knowledge of the law was held to be the best reason in the world why a man should not be made

a legislator.

*

This folly was combated with ridicule. One writer remarked that it was truly laughable to hear his townsmen gravely voting that the lawyers were a grievance. Did not every man of sense know they were a result, not a cause of public evils? They grew out of laziness, out of dilatoriness in paying debts, out of breaches of contracts, out, in short, of the vices of the people, just as mushrooms sprang out of dung-hills after a shower, or distilleries from a taste for New England rum. The sober and frugal Dutchmen of New York had no use for lawyers. Before the war, there was in the whole of Orange county but one action for debt tried in eighteen years. The industrious Quaker and Germans of Pennsylvania had no use for lawyers A tax-collector never called on them twice. They had no grievances. Neither would the New England man when he learned to save."

The Legislature passed the partisan bill for letting the contracts for printing the Court of Appeals Reports, by the skin of their teeth. It was squeezed through the Senate by one vote, one Senator who had loudly and publicly denounced the bill saving it at the last gasp. It is an indecent and desperate job, and its constitutionality is by no means clear. We hope the Governor will look well to the policy and the constitutionality of it. We believe that a majority of the judges are strongly opposed to it. We believe that it will saddle them with an undignified and odious burden. We fear that it will subject them to accusations of partisanship and favoritism which have never before been made against them. This court has been peculiarly free from such suspicion, and its usefulness would be hurt by any scent of jobbery. If the judges should themselves award the contract, undoubtedly they would do it honestly and judiciously; but if it happened to fall into the hands of persons of the same political faith as a majority of the court, what would be the natural cry? Politicians, like the Secretary of State and the Comptroller, are not hurt by charges of partisanship; judges are. To put this power into the hands of the clerk and reporter would be intolerable; to put it into the unwilling hands of the judges is very improper.

IN

NOTES OF CASES.

N Combe v. De la Bere, English Court of Appeal, December 1, 1882, 48 L. T. Rep. (N. S.) 298, it was contended that a sentence of the court of arches, depriving a clergyman of his benefice, was void because pronounced in committee-room E of the House of Lords, a place privileged from ecclesiastical jurisdiction because it is within a "peculiar," is part of a royal residence, and part of a royal palace, it being part of the old palace of Westminster. The contention was not supported. Jessel, M. R., started off thus: "Although I do not find fault with the appellant for taking such a point—for a clergyman who has been deprived of

his living is entitled to take any technical point that by any possibility will avail him -- I am sorry to say the time of the ccurt has been consumed for a whole day by what I will admit to be a very interesting argument on the part of Dr. Phillimore, showing great antiquarian and legal research on the question whether a judge who pronounced a sentence, which is not otherwise found fault with, was sitting in the right room. That is the whole point. I suppose, if he had walked into the street outside and delivered his sentence there, no possibility of objection could have arisen. But it is said, that because he sat in Committee-room E of the House of Lords, that was a sitting in a Royal palace, which was a place exempt from the ecclesiastical jurisdic-| tion which he exercised as Dean of Arches, and therefore that his sentence is a nullity. I regret to have to decide such a point, but as it has been raised on the part of a man who has been deprived of his living by the sentence, of course the point must be treated seriously, and we must consider whether there is any legal foundation for the argument of the appellant's counsel."

It will be interesting to the great class of "drum

mers," or to speak more respectfully, commercial travellers, to learn that when on salary they are not "laborers," at least not such within the meaning of a constitutional provision which makes stockholders liable for labor debts. Such is the holding in Jones v. Avery, Michigan Supreme Court, April 18, 1883. The court said: "The plaintiff's connection with the company and the nature of his occupation were fully explained by him as a witness. He said: "The kind of labor I rendered to the said company was that of travelling salesman or agent, selling their goods. My duties consisted in soliciting orders for the sale of the company's goods from customers, who were using those or similar goods in different

towns through the country. I carried samples with

me always; I carried this assortment of samples

with me to each customer or man I solicited. I was to receive a salary or compensation at the rate of $1,000 per year; that was my agreement.' From this it seems evident to the court that he was not a labor performer for the corporation in the sense contemplated in the provisions for holding stockholders liable. He had no part in carrying on the establishment, nor in the manufacture. He was a mere outside agent or representative of the company to bring business to it, upon a salary. As regards the present question, his position was nearer the position of an officer of the corporation than that of a laborer." See Browne's Common Words and Phrases," tit. "Laborer." As to the construction of the same word in mechanics' tien law, see 21 ALB. LAW. JOUR. 405.

In Bradley v. Western Union Telegraph Company, Hamilton (Ohio) Common Pleas, 9 Cin. Law Bull., 223, it was held that the business of collecting and selling "commercial news," is not part of the public

duty of a telegraph company, as a carrier of messages for hire, and the court will not enjoin it from discontinuing to furnish such "commercial news " to one of its customers, or from removing from his office the ticker through which the quotations are furnished. The news in question was quotations of the price of grain, etc. The court said: "This business of collecting and furnishing 'commercial news' is entirely separate and distinct from the business of the defendant as a common carrier of messages for hire from one person to another, over its wires, and I cannot see that it differs in its nature from the business of any of our merchants who purchase goods and merchandise, in the cast and elsewhere, and bring them here to dispose of to their customers. The fact that one is tangible in its nature, and the other intangible, does not, I think, make any difference in principle. I use the words 'common carrier,' not as applicable generally to telegraph companies, but only to their duty to receive and transmit messages for the public. The law of bailment is the foundation of the law governing common carriers, and the ordinary definition of bailment is, a delivery of something of a personal nature by one to another upon a contract, express or

implied, that that other will dispose of the thing according to the instructions given him. 2 Bl. Com. But in 451; Story Bailm, § 2; 2 Kent Com. 559. this case, the quotations collected by the defendant are its own property until delivered into the possession of the plaintiff, and are not in any sense the subject of a bailment. I am not aware of any adjudicated case on the subject, but it seems to me clear on principle, that in collecting and furnishing the quotations which are the subject of this controversy, the defendant was engaging in a business entirely distinct from its public duties. If I am correct in my conclusion, then as to the business which is the subject of this controversy, the defendant occu

pied the same relation to the plaintiff that any private individual would, and as the alleged contract had no definite time to run, the defendant might rightfully discontinue furnishing the quotation at any time, subject of course to the provision as to notice, and as to that, I think the plaintiff's remedy would be adequate at law in an action for the breach of the contract, and the court would refuse the aid of its extraordinary powers. I think this would apply to the removal of the ticker as well."

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The present volume, 13th, contains a considerable number of interesting cases, to some of which we have possibly referred before. We now particularly note the following: Bradbury v. Furlong, p. 15.-The statute giving a cause of action for death inflicted by the wrongful act of another does not cover the case of mere passive neglect or omission of duty. Von Storch v. Winslow, p. 23. - A sewing machine and a piano are articles of "household furniture." Boston & Colorado Smelting Co. v. Smith, p. 27. —An agreement to loan money or indorse for the borrower's business, in consideration of a certain percentage of the net profits of the business, does not constitute the parties partners as between themselves or as to third persons. Sprague v. Tripp, p. 38. —A city owning land on both sides of a private way, its highway commissioners took gravel from the land and the way, for repairing other and remote highways, rendering the private way impassable. Held, that an action would lie in favor of another owner on the

private way against the city. National Exchange Bank v. Watterson, p. 91. — To avoid an ante-nuptial settlement as against the settlor's creditors it must be shown that both parties knew of the intended fraud. King v. Baltimore, p. 117. A proposal by A. that if B. contracts with C. for materials to be used in building, promising to pay therefor from moneys received by him for such building, A. will guarantee the faithful performance of such contract with C., is conditional, and not binding until notice of acceptance. Bennett v. Fifield, p. 139. - A. left in a highway an object calculated to frighten horses; the town negligently suffered it to remain; B.'s horse was frightened by it and ran away, causing injury to B.; held, that A. and the town were not joint wrong-doers, and B. might recover against the town alone. Sawyer v. Brownell, p. 141. — For accommodation and to enable A. to borrow money, B. and C. indorsed his note payable on demand with interest. Held, that C. was liable only as indorser. Bowden v. Lewis, p. 189. -The plaintiff built an oyster house in a tidal river in front of the defendant's villa lots. The defendant pulled it down, claiming that it obstructed his prospect and the access to his lots, and its use would diminish the value of his lots. Held, that he could not justify because of obstructions to the prospect; nor as the building had never been used, because of diminution of value; nor as no one had used the water way for access, because of obstruction of access.

In State v. Beswick, p. 211, it is held that a statute providing that in a prosecution for illegally selling spirituous liquors, it shall not be necessary to prove that such liquors were kept for sale, but the notorious character of the premises, or the notoriously bad or intemperate character of the frequenters, or the keeping of implements or appurtenances usual to tippling shops shall be prima facie evidence of such keeping, is unconstitutional. In State v. Higgins, p. 330, it was held that a statute providing that evidence of the sale or keeping of intoxicating liquors for sale shall be prima facie evidence that such sale or keeping is illegal, is constitutional. In State

v. Kartz, p. 528, it was held that a statute providing that every person keeping a place in which it is reputed that intoxicating liquors are sold without a license, shall be punished, is unconstitutional. In State v. Mellor, p. 666, it was held that a statute providing that evidence of the sale or keeping for sale of intoxicating liquors shall be evidence of illegal sale or keeping, is valid.

No action lies to recover a minor's wages earned in violation of a statute prohibiting the employment of certain minors in certain employments.—Birkett v. Chatterton, p. 299. Furniture was insured, being described as "all contained in house number M. street," etc. The insured, without the insurer's knowledge, removed it to a house in another street, where it was consumed by fire. Held, that he could recover.-Lyons v. Providence, Washington Ins. Co., p. 347. (See 27 Alb. Law Jour. 263.) A pupil in a city public school has no action against the city for a personal injury sustained by reason of a defect in the heating apparatus of the school building.— Wizon v. Newport, p. 454. An oral contract for service for one year, to begin as soon as the employee could, and not begun until a week after the agreement, is within the statute of frauds.-Sutcliffe v. Atlantic Mills, p. 480. An attorney at law has no implied power to settle his client's suit, but a fair and reasonable compromise, made by the attorney with the assent of the party in interest but without the knowledge of the plaintiff of record, will not be disturbed. Whipple v. Whitman, p. 512. (See 41 Am. Rep. 846.) A carrier is prima facie responsible only for his own route; and where there are several connecting carriers each may demand payment in advance, and may pay back charges and have a lien therefor and for his own.-Knight v. Providence & Worcester R. Co., p. 572. The defense of fraud in the procur ing of a note is not available to one who bought the note for less than its face value and not in the usual course of business.-Millard v. Barton, p. 601. No action lies for preventing one from attending his wife's funeral.—Neilson v. Brown, p. 651.

THE LATE LORD CAMPBELL.

II.

REATHING out mysteriously from some un

known quarter, ever and anon, this provoking jargon would smite upon the ear of the irate domine, and enacting for his own use a private statute of hue and cry, he did not hesitate to visit upon the whole school the sins of the particular offenders who found accessories after the fact in all their companions. The flagellations thus administered must have been bestowed with uncommon vivacity, if one might judge by the lively recollection of their infliction retained by the chief justice to his latest hour.

Later, but at the still early age of eleven, John and George Campbell were sent to the university of St. Andrews, where the former acquired most of his scholastic education, and where, in respect to his father's most eager predilection, he entered upon the study of divinity. Writers arrogating to themselves very superior and thorough classical instruction, refer to Campbell's education as "deficient," but such

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