ABSTRACT.*

APRIL, 1880.

EXEMPTION-FRAUDULENT CONVEYANCE OF EXEMPT PROPERTY HOMESTEAD PURCHASE-PRICE OF EX

EMPT GOODS -- CONFUSION. (1) Where a "householder or head of a family" executes a homestead deed as a part and in furtherance of a design to hinder, delay and defraud his creditors in the recovery of their just debts, such deed will be vitiated and invalidated by such conduct. Gilleland v. Rhodes, 34 Penn. St. 187; Dieffendoffer v. Fisher, 3 Grant Cas. 30; Smith v. Emerson, 43 Penn. St. 456; Strouse v. Becker, 38 id. 190. In the last case, Woodward, J., said the rule of decision which denies the benefit of the exemption law to a dishonest debtor who shuffles and conceals his property, is founded in a sound morality and is agreeable to the

spirit and intention of the exemption law. The remark is equally applicable to the homestead law. (2) The laws of Virginia not allowing property to be claimed as exempt for debts contracted for the purchase-price of such property or any part thereof - where a large portion of goods claimed as exempt has not been paid for, and are so mingled with those that have been as to put it out of the power of the vendors to distinguish between the two, the onus is on the person claiming the exemption to show which has been paid for; and he failing to do this, they will all be treated as not having been paid for, as far as the homestead deed is concerned, and therefore not exempt under the law. Rose v. Sharpless. Opinion by Anderson, J.

MORTGAGE

TRUST DEED BY INDORSER OF NOTE TO SECURE IT-WHEN PROTEST AND NOTICE TO INDORSER NOT NECESSARY-WAIVER BY INDORSER.-B., as maker and R. and C., as indorsers, made two notes which were discounted at the E. & A. bank, and the proceeds went to the credit of B. The notes were discounted much on the faith of a deed of trust by which C. and wife conveyed to A. a tract of land in trust to secure the notes, with this covenant: "that upon the default of payment of either of said notes or any part thereof, the said A. shall upon the request of the president or other authorized officer of the said E. & A. bark, after giving thirty days' notice, etc., proceed to sell at public auction the property hereby conveyed for cash, etc., and pay off and discharge any part of the sum of $2,000 hereby secured to be paid then remaining unpaid," etc. The notes were not paid at maturity; and were not protested, nor was there any notice to the indorsers. Held, that the deed of trust with the covenant therein bound C. to the extent of the trust subject, though there was no protest or notice to the indorsers; that the bank was not bound to give notice to R., so as to hold him liable, in order to hold C. liable. Mory v. King, 7 Eng. C. L. 57; Hilton v. Catherwood, 10 Ohio St. 109; Mitchell v. Hodgson, 35 Vt. 104. In this case C. repeatedly applied to officers and directors of the bank for a postponement of the sale of the land under the deed of trust, promising to pay the debt, and never objected that the note had not been protested or that notice had not been given him. Held, a sufficient proof of an agreement to waive demand and notice. 2 Dan. Neg. Inst., §§ 1147-1162; Walker v. Laverty, 6 Manuf. 487; Pate v. McCluer, 4 Rand. 164. Cardwell v. Allen. Opinion by Staples, J.

TRESPASS3-ONE PRESENT ENCOURAGING, LIABLE AS PRINCIPAL FOR INJURY — INSISTING UPON ADMISSION TO CLOSED HOUSE TRESPASS-WILLFUL FIRING PISTOL

nances or approves the same, is in law assumed to be an aider and abettor, and is liable as a principal to the extent of the injury done. But the burden is on the plaintiff to show that the party charged was present, aiding, encouraging or inciting the trespass. Jordan v. Wyatt, 4 Gratt. 151; Parsons v. Harper, 16 id. 64; 1 Hale P. C. 438; 3 Greenl. Ev., § 40; 43 Mo. 206. Hero T. was the keeper of a restaurant in Alexandria city, firearms in its streets. He had shut his front door for which has an ordinance prohibiting the discharging of the night but his light was burning, when D., H. and

S. came there and demanded admittance about midnight. S. went around at a side door, went in and told T. that D. wanted to come in. D. and H. were at the front door. D. said to H. "fire a salute," or something of the sort. H. fired, and the ball went through the door into the leg of T., wounding him. Held, in an action by T. against D. and H. for the injury that D. was liable. Insisting on being admitted into the house of another at a late hour of the night, after it is closed and after being refused by the owner, is a trespass. The willful firing of a pistol in the streets of a city, whether done maliciously or not, is of itself an unlawful act, and the consequences must be visited on those who commit it or instigate it. Daingerfield v. Thompson. Opinion by Christian, J.

WEST VIRGINIA SUPREME COURT OF APPEALS ABSTRACT, 1880.*

ATTORNEY-LIEN OF, UPON JUDGMENT. - An attorney has a lien on the judgment or decree obtained by him for his client for services and disbursements in the case whether the amount of his compensation is agreed upon or depends upon a quantum meruit. This lien includes not only the amount necessary to pay for his services and disbursements in the case in which the judgment or decree is rendered, but also the amount necessary for such person in any other case so connected with it as to form the basis on which such judgment or decree is rendered or which is essential to the realizing it. This lien is subject to all the equitable liens of the defendant in the judgment existing at the time of its rendition. Notice to the defendant, express or implied, of the claim of the plaintiff's attorney to such lien, before the defendant pays such judgment to plaintiff, is essential to the maintenance of such lien, but notice of the existence of such lien to the assignee of such judgment is not essential. Such lien may be waived by any arrangement or transaction made by or with the attorney which satisfactorily shows an intention to waive such lien and rely exclusively on some other security or mode of payment, but such lien will continue to exist unless an intention, and a manifest intention, that it shall not continue to exist appears. Here P., an attorney, recovered a judgment for R. against L., and after L. becomes totally insolvent, R. assigned this judgment for a valuable consideration to D., who had no notice of the attorney's lien; P., the attorney, then takes the bond of R. for his fees in the case, and at the same time R. confesses a judgment to P. for the amount, and simultaneously he assigns his judgment against L. to P., to satisfy his fees. Held, that these transactions were not a waiver by the attorney of his lien, and that he was entitled to priority over D. in the distribution by the court of the amount of the judgment. Central Land Co. of West Virginia v. Calhoun. Opinion by Green, P. J.

CONSTITUTIONAL LAW-EMINENT DOMAIN-ALTERATION OF GRADE OF STREET TO INJURY OF PROPERTY —

REMEDY. —If a municipal corporation, in changing the

*To appear in 16 West Virginia Reports.

grade by raising or depressing its streets, permanently damage private property without acquiring the right to do so, and if demanded, by paying just compensation therefor, it violates the constitutional provision, which declares that private property shall not be taken or damaged for public use without just compensation. When the Constitution forbids a damage to private property, and points out no remedy, and no statute gives a remedy for the invasion of the right of property thus secured, the common law, which gives a remedy for every wrong, will furnish the appropriate action for the redress of such grievance. Johnson v. City of Parkersburg. Opinion by Johnson, J.

CONTEMPT ADVICE OF COUNSEL HOW FAR AN EX

CUSE PROCESS MUST BE LAWFUL TO AUTHORIZE PUNISHMENT PROCESS IMPROVIDENTLY ISSUED LAWFUL.

-The advice of counsel may, under some circumstances, be a palliation of the offense of a client in disobeying the lawful process of the court, but the extent of such palliation must depend upon the character of such advice and the circumstances under which it has been given. The offense will be palliated by such advice to the extent only of making it a reckless disobedience of the process instead of a willful contempt of the court when the advice is hasty and inconsiderate, or when the party through carelessness has failed to give the counsel correct information as to the facts of the case. In order to justify any punishment in such a case, the process of the court disobeyed must have been its lawful process. By its lawful process is meant such process as the court has jurisdiction to issue. If such jurisdiction exists, its process is lawful though it be improvidently awarded, or though on the merits of the case it ought not to have been awarded. If a supersedeas, which this court has power to issue, be improvidently awarded, the defendant should move to have it quashed, and he cannot, while it is in force, disobey it with impunity. State of West Virginia ex rel. Mason v. Harper's Ferry Bridge Co. Opinion by Green, P. J.

ATTORNEY LIEN AS TO ALIMONY PENDENTE LITE PAID TO HIM.- - A solicitor's lien does not extend to alimony pendente lite paid over to him as such, i. e., for the purpose of the wife's maintenance, unless he holds her direct written authority to him to receive it as her agent under rule 94 (D. R.). Bremner v. Bremner and Brett, L. R., 1 P. & D. 257, distinguished; Leete v. Leete, 48 L. J. 61, Mat., followed; Prob. Div. and Adm'r Div., Nov. 16, 1880. Cross v. Cross. by Manisty, J., 43 L. T. Rep. (N. S.) 533.

Opinion

BAILMENT LIABILITY OF WAREHOUSEMAN AS TO DELIVERY OF GOODS CONSIGNED TO ANOTHER -TRIPLICATE BILLS OF LADING.-The consignees and owners of a cargo to arrive in London indorsed and delivered the first of three bills of lading to the plaintiffs as a collateral security for money advanced. These bills of lading had been signed by the master of the ship in the usual set, marked respectively "First," "Second," and "Third," and they represented the goods as deliverable to the said consignees or their assigns, that freight was made payable in London, and that the master had affirmed to three bills of lading, "the one of which bills being accomplished, the rest to stand void." When the ship arrived the consignees made

entry of this cargo, and it was placed in defendants' warehouses. The master on the same day lodged with the defendants a copy of the manifest of the cargo, with an authority to defendants to deliver the goods to the holders of the bill of lading; and on the following day, notice to detain the cargo until the freight should be paid. Upon receipt from the consignees of the second of the bills of lading, the defendants entered the consignees in their books as enterers, importers, and proprietors of the goods, and after removal of the stop for freight, delivered the goods to persons other than the plaintiffs, on delivery orders signed by the consignees, the plaintiffs having no knowledge of any dealings with the cargo. Held, by Bramwell and Baggallay, L. JJ. (Brett, L. J., dissenting), that the defendants were not liable to the plaintiffs in an action to recover the value of the goods. Judgment of Field, J., reversed. Cases referred to: The Tigress, 32 L. J.

97; Fearon v. Bowers, 1 H. Bl. 364; Meyerstein v. Barber, L. R., 2 C. P. 38 and 661, and 4 H. of L. 317; Hollins v. Fowler, L. R., 7 Q. B. 616, and 7 H. of L. 757; Court of App., Nov. 19, 1880. Glyn Mills, Currie & Co. v. East and West India Dock Co., 43 L. T. Rep.. (N. S.) 584.

FALSE IMPRISONMENT - DEFENDANT NOT ACTIVELY INSTRUMENTAL IN PROSECUTION.- The defendant having missed two pairs of horse clippers from his stable, sent for a police constable and said, "I have had two pairs of clippers stolen from me, and they were last seen in the possession of Danby." Thereupon the constable, having made inquiry, and without communicating with the defendant, arrested the plaintiff, who was taken before the magistrate and committed for trial. Held, that there was no evidence that the defendant was actively instrumental in putting the criminal law in force, and therefore he was not the prosecutor and not liable in an action for false impris onment and malicious prosecution. C. P. Div., Nov. 25, 1880. Danby v. Beardsley. Opinions by Lopes and Lindley, JJ., 43 L. T. Rep. (N. S.) 103.

SURETYSHIP-WHEN DEATH OF SURETY DOES NOT DETERMINE CONTRACT CORPORATION SUCCEEDING PRIVATE ASSOCIATION- - TRUSTEE.—(1) A, desiring to become an underwriting member of Lloyd's, B gave a guarantee to the committee of that body on behalf of A, in which he held himself responsible "for all his engagements in that capacity." Held (affirming the decision of Fry, J.), that the guarantee was not determined by the death of the guarantor or by notice of his death. Calvert v. Gordon, 3 M. & R. 124, followed. Held, also, that the guarantee extended to all engagements entered into by A, as an underwriter, both with the members of Lloyd's and other persons. (2) When the guarantee was given, Lloyd's was a voluntary association, managed by a committee, to whom the guarantee was given. A few years after the members of this association were incorporated by a special act of Parliament under the name of Lloyd's, and the rights of the committee were vested in the corporation. Held, that the committee, and the corporation as their successors, were in the position of trustees for all persons with whom A had entered into engagements as an underwriter, and were therefore entitled to maintain this action. Cases referred to, Calvert v. Gordon, 2 Sim. 253; Coulthart v. Clemenson, 41 L. T. Rep. (N. S.) 798. Court of Appeal, Nov. 15, 1880. Lloyd's v. Harper. Opinions by James, Cotton and Lush, L. JJ., 43 L. T. Rep. (N. S.) 481.

The Albany Law Journal.

ALBANY, FEBRUARY 26, 1881.

CURRENT TOPICS.

THERE is a too general belief among clergymen

that lawyers are heathen, and among lawyers that clergymen are fanatic and credulous. Оссаsionally a member of each profession does a particularly silly act which strengthens the belief of the

gentlemen of the other profession. Thus, Judge Forbes, deceased, late of the Massachusetts Supreme Court, gives Northampton $200,000, by will, for the establishment of a public library, provided that no minister of religion shall have any thing to do with the management of the institution. In case of nonacceptance of the condition, the money goes to Harvard College, which the testator seems to consider the next most irreligious institution. He does not seem to have gone quite so far as Girard, who, if we remember right, would not even let a minister into the grounds. Judge Forbes has thus written himself down a particularly bigoted and shortsighted person. If he wanted an unsectarian library, it was easy to effect it, without such a rigid and illiberal exclusion. A public library ought to contain all sorts of books, not absolutely indecent, and a board of library management ought to contain representatives of the four learned professions -the editorial is the fourth, of course- - besides scientific and business men and teachers. For some very sensible views of a court on the subject of the exclusion of atheistic or materialistic books from a public library, see 21 Alb. L. J. 243, the case of Manner's Appeal.

The clergy certainly cannot complain of any theological unsoundness of Judge Comegys, of Delaware, who recently charged a jury to punish what he calls "blasphemy," that is to say, such doctrines as Col. Bob Ingersoll utters. We do not ourselves at all approve of the Colonel's opinions, but we think it would be a very foolish and wicked thing to indict him for blasphemy. There is a difference between maliciously reviling God and religion, and denying the existence of God and the credibility and reasonableness of the christian religion. We even think that the conviction of Chandler, in Delaware, for blasphemy in calling the Virgin Mary a whore and Jesus Christ a bastard (2 How. 553), was of very doubtful policy, however disgusting and abominable that utterance seems to most people. Christianity is not now believed to be a part of the common law, as was formerly believed. But aside from this, there can be no doubt that words used in the course of a serious discussion, and with intent to make known or recommend opinions entertained by the accused, are not blasphemy. This is the restriction made by the old cases. The New York Code commissioners said that the favor which the law shows to liberty of speech and free discussion VOL. 23.- No. 9.

of religious opinions forbids that the sincere expression of belief, however erroneous, should be embarrassed by the penalty of blasphemy. Opinion changes. There are good Calvinistic ministers nowa-days who give such a definition of the trinity as would have subjected them to being burned a few centuries ago. It may well be said that Judge Comegys himself is unsound on this point. He should recall the best definition of "orthodoxy" and "heterodoxy" ever given; "'orthodoxy' is my As for Col. Ingersoll we expect to see him a good doxy; 'heterodoxy' is every other kind of doxy." Calvinist before we die. He must even now occa

sionally find his own disbelief in hell extremely inconvenient. His reply to Judge Comegys leads us to suspect that for him he would "consent to a mild form of damnation," as Horace Greeley used to concede for the slaveholders.

Our correspondent, Mr. Dawson, has already got us into trouble by his new science of "Psycometry." The Ohio Law Journal says: "We find in that highly influential periodical, the ALBANY LAW JOURNAL, an earnest demand for judicial recognition of Psycometry as a science and its consequent use as a means of determining the guilt or innocence of persons charged with forgery." "If the ALBANY LAW JOURNAL is really the champion of this new science, we sincerely hope it will give us something definite concerning it, and sign the thesis Now if our contemporary had Irving Browne.'" read our "current topics" that week as attentively as he read our correspondent's article, he would have seen that we did not adopt our correspondent's views. The Ohio Law Journal very pertinently asks, why confine the application of the new science to forgery? "The article states that 'Psycometry is a science from which no mortal man can conceal his real thoughts, if he will dare to write what he pretends are his real convictions upon paper.' Now that would indicate a general power which ought to scorn confinement to forgery alone. Possibly the thing is patented and the claim does not cover other crimes." We do not at present see what answer can be made to this.

A writer in The Nation thinks he has discovered the cause of the decline of greatness, including eloquence, we suppose, among our public men. He does not adopt the levelling theory that fewer men are great by comparison because all men are greater than formerly, but he believes that it is because our common-school system dwarfs rising greatness, cuts it to a set pattern, and fits it to a Procrustean bed, and thus affords no scope for the development of peculiar genius. He says: "The school itself is a well-kept hedge-row. Every tree in that human hedge is trimmed down to the regulation standard; and while there may be many stunted, dwarfed shrubs which will never attain to that standard, the strong, robust plant which would overtop its fellows and look up to the sun must have its branches mercilessly lopped off, its growth checked, and its