sonable diligence. Where these are wanting, the court is passive and does nothing; laches and neglect are always discountenanced; and therefore, from the beginning of this jurisdiction, there was also a limitation of suit in this court." Smith v. Clay, 3 Bro. C. C. 639, note. The doctrine as thus stated was enforced in a case strongly analogous to the one in hand, by the Supreme Court of the United States. Piatt v. Vattier, 9 Pet. 413. Johnson v. Commissioners of Somerville. Opinion by Van Fleet, Vice-Chancellor.

INJUNCTION-WILL NOT BE GRANTED TO RESTRAIN LAYING OF PIPE TO TRANSPORT OIL ACROSS WATERS OF STATE-NOR ACROSS RAILROAD TRACK IN PUBLIC STREET AT INSTANCE OF RAILROAD COMPANY, IT DOING NO INJURY-FRANCHISE OF RAILROAD CORPORATION

TO CARRY OIL NOT EXCLUSIVE. - A foreign corporation, without any authority whatever, laid a pipe for transporting oil on the bottom of a navigable river, on lands belonging to the State, and underneath a drawbridge of complainant. At that point the channel was so deep and wide as that the laying of the pipe there would not interfere with the bridge. A preliminary injunction to prevent such pipe-laying was denied, because, (1) the pipe had been laid before the application for the injunction was made. (2) The lands where the pipe crosses the bridge belong to the State, and the complainants have no legislative authority to reclaim them. (3) The pipe, as laid, does not interfere with or obstruct the maintenance and operation of the drawbridge nor any lawful filling. (4) The complainant's franchise of carrying oil is not exclusive, and therefore does not prevent any other company from doing so, if not in contravention of the company's franchise, much less so when it appears the defendants intend to transport only their own oil. United New Jersey Railroad and Canal Co. v. Standard Oil Co. Opinion by Runyon, Chancellor. An injunction was refused in another case on similar grounds, where the oil pipes were laid upon a street bridge built by a city across a railroad, and also upon the ground that no irreparable injury was shown, either from the leakage of oil or interference with the elevation of the bridge, if complainants should desire to raise it. See Citizens Coach Co. v. Camden Horse R. Co., 2 Stew. Eq. 299. Central Railroad Co. of New Jersey v. Standard Oil Co. Opinion by Runyon, Chancellor.

TRUST MAY RE CREATED ORALLY -MORTGAGE DEBT.- - A valid trust of personal property may be created by mere spoken words, and proved by parol evidence. A valid trust of a mortgage debt may be created by parol, for though a trust thus created will not pass any interest in the land held in pledge, yet it is good as to the debt, and will entitle the cestui que trust to the payment of his debt out of the proceeds of the sale of the land. Hooper v. Holmes, 3 Stockt. 122; Kimball v. Morton, 1 Halst. Ch. 26; Sayre v. Fredericks, 1 C. E. Gr. 205; Eaton v. Cook, 10 id. 55; 2 Story's Eq. Jur., § 972; 1 Perry on Trusts, § 86; Benbow v. Townsend, 1 M. & K. 506; Childs v. Jordan, 106 Mass. 321. Danser v. Warwick. Opinion by Van Fleet, Vice Chancellor.

PENNSYLVANIA SUPREME COURT ABSTRACT.

FRAUDULENT CONVEYANCE-VOLUNTARY CONVEYANCE BY ONE IN DEBT NOT FRAUDULENT AS TO FUTURE

CREDITORS. —Notwithstanding the many loose declarations in the books to the contrary, the statute of 18th Elizabeth does not make voluntary conveyances void as to future creditors unless there is some evidence to indicate that the grantor intended to withdraw his property from the reach of such creditors (Snyder v. Christ, 3 Wr. 499); and it is properly said in Williams v. Davis, 19 P. F. Smith, 21, that even an ex

"

pectation of future indebtedness will not render a voluntary conveyance void when there is no fraud intended by such conveyance; and so, also, in Thomson v. Dougherty, Duncan, J., citing Sexton v. Wheaton, 8 Wheat. 229, says: 'Marshall, C. J., decided that a post-nuptial settlement on a wife and children by a man who is not indebted at the time, was valid against subsequent creditors, and that the statute does not apply to such creditors if the conveyance be not made with a fraudulent intent." A similar ruling will be found in Townsend v. Maynard, 9 Wr. 198, and in Greenfield's Estate, 2 Har. 489. In the latter case, which involved a deed of trust of all the grantor's property, it was alleged by Bell, J., to be a sound rule of law that subsequent indebtedness cannot be invoked to invalidate a voluntary settlement made by one not indebted at the time, or who reserves sufficient to pay all existing debts, unless there be something to show that the settlement was made in anticipation of future indebtedness. See also Matteer v. Hassine, 3 P. & W. 161; Monroe v. Smith, 29 P. F. Smith, 459. Harlan v. Maglaughlin. Opinion by Gordan, J. [Decided Oct. Also Kimble v. Smith. Opinion by Pax

6, 1879.]

son, J.

[Decided June 19, 1880.]

PURCHASE FROM INSOLVENT BY CREDITOR KNOWING INSOLVENCY DEALINGS BETWEEN RELATIVES. A father, to secure a debt due him by a son who was insolvent, purchased of such son a farm he owned for the full value, applying the debt toward payment and paying the balance in cash. A portion of the cash the father borrowed from his daughter. The son was indebted to the daughter, and used all but a small sum of the money received from his father in payment for the farm in paying that indebtedness. Held, that if the father's motive in the purchase of the property was the security of his own debt, his purchase cannot be impeached, though he may have paid the difference between the amount of the debt and the price agreed upon for the property, in money. In this we must look to the motive of the creditor; if that was honest and lawful the intent of his debtor does not enter into the question. As was said in Scott v. Heilager, 2 Har. 238, "One man cannot be prejudiced by the fraud of another of which he has no notice nor opportunity of receiving notice." If the intention of the parties was not only to secure the debt due to the father, but also to put the balance of the property into such a shape that it could not be reached by the son's creditors, then as to such creditors the whole transaction would be void. The dealings between father, son and daughter were not evidence of fraud. Business dealings between parents and children and other near relatives are not per se fraudulent. They must be treated just as are the transactions between ordinary debtors and creditors; as in the latter case, where the bona fides of such transactions is attacked, the fraud alleged must be clearly and distinctly proved, so likewise in the former. Rechling v. Byers. Opinion by Gordon, J. [Decided May 17, 1880.]

GRANTEE REPRESENTING ESTATE TO REMAIN IN GRANTOR ESTOPPED AGAINST SUBSEQUENT CREDITOR. J. conveyed an estate to his uncle without consideration and for the purpose both on the part of the grantor and grantee of defrauding the creditors of J. The uncle subsequently declared to D. that J. still retained his interest in the property thus fraudulently conveyed, and D. loaned money to J. solely upon the faith of the representations of the uncle. Held, that D. was entitled to have his debt paid out of surplus moneys arising from the estate in preference to the claim of the uncle thereto. As between the parties to the fraudulent conveyance, neither law nor equity would lend its aid to either of them; and thus, while the uncle might as against J. claim and hold the surplus, he stands in a

very different relation to D. He is estopped from claiming the fund as against J. Mowry's Appeal. Opinion by Sterritt, J. [Decided May 24, 1880.]

LIEN OF ARTISAN FOR REPAIRS TO DIFFERENT ARTICLES.—It cannot be doubted that a lien is given by the common law to a tradesman or artisan who in the course of his trade or occupation receives personal property upon which he bestows labor, etc., and his right to a lien on the property is equally good whether there be an agreement for a stipulated price, or only an implied contract to pay a reasonable compensation. Story on Bailm., §§ 440, 441, a; Mathias v. Sellers, 5 Nor. 486. It is equally clear on principle as well as authority that where there is an entire contract for making or repairing several articles for a gross sum, the tradesman has a lien on any one or more of the articles in his possession, not only for their proportionate part of the sum agreed upon for repairing the whole, but for such amount as he may be entitled to for labor, etc., bestowed upon all the articles embraced in the contract. Blake v. Nicholson, 3 Maule & Sel. 167; Chase v. Westmore, 5 id. 180. Hensel et al. v. Noble. Opinion by Sterritt, J. [Decided Oct. 25, 1880.]

RECENT ENGLISH DECISIONS.

ATTORNEY AND CLIENT-DUTY OF SOLICITOR AS TO CONFLICTING RIGHTS OF CLIENTS-NOTICE. S. borrowed 6,000l. of B., his solicitor. Of this money 8001. belonged to R., another client of B. B. took a mortgage in his own name without disclosing to S. that any part of the money belonged to B., but gave R. a declaration that he held 800l. on trust for him. The mortgage of 8,000l. was paid off in B.'s life-time. B. appropriated R.'s 8001., but continued to pay interest till his death, when his estate was found to be hopelessly insolvent. An action was then brought by the trustees of S. for the administration of his estate. R. claimed

to have his debt paid out of the estate of S. on the ground that S. had constructive notice that the 8001. belonged to him. Held, that it was the duty of B., as the solicitor of S., to give him notice that part of the mortgage money belonged to R., but it was more incumbent upon him to give such notice as the solicitor of R., and therefore R. must suffer for the breach of duty which was committed by B. as his solicitor. Ch. Div., Dec. 4, 1880. Allen v. Lord Southampton Roper's claim. Opinion by Malins, V. C., 43 L. T. Rep. (N. S.) 625.

CARRIER OF PASSENGER-LIABILITY FOR INJURY TO BAGGAGE. The plaintiff took a through ticket at S., on the Great Western Railway, to Euston. At B., where the Great Western and London and North-Western Railways meet, the plaintiff's portmanteau was put into a van belonging to the London and North-Western Company, but upon the arrival of the train at Euston it could not be found. About three months afterward the portmanteau was delivered to the plaintiff by the defendants much damaged, and the contents destroyed. Held, that the defendants were bound to take proper care of the portmanteau, and were liable for negligence irrespective of any express contract. Cases referred to, Mylton v. Midland R. Co., 33 L. T. Rep. 287; | Foulkes v. Metropolitan Dist. R. Co., 42 L. T. Rep. (N. S.) 345. C. P. Div., Dec. 2, 1880. Hooper v. London & North-Western Railway Co. Opinions by Denman and Lindley, JJ., 43 L. T. Rep. (N. S.) 570.

CORPORATION ACT OF LESS THAN REQUIRED NUMBER OF DIRECTORS VOID — FORFEITURES. — By the articles of association of a limited company, it was provided that the office of director should be vacated if any director ceased to be the holder of twenty shares in the company, or if he became bankrupt or insolvent,

and also that the business of the company should be conducted by not less than five or more than seven directors. In 1877, B., a director of the company and the holder of 250 shares partly paid up, filed a petition for the liquidation of his affairs. At this time there were only five directors including B. Subsequently to the liquidation, a resolution was passed at the usual quarterly meeting of the shareholders that the business of the company should be conducted by four directors; and shortly afterward the remaining four directors made a call on the shares, and the call not

having been paid in respect of B.'s shares, the same directors passed a resolution declaring that the 250 shares standing in the name of B. were forfeited in accordance with certain clauses in the articles of association. B. paid his creditors a compensation, and the Afterward B.

liquidation proceedings were closed. applied to be reinstated on the register as the holder of the 250 shares in the company, which had gone into voluntary liquidation, and made a tender to the liquidator of the amount due for calls on such shares. On a summons taken out by the liquidator for a declaration that B. was not entitled to be registered as the holder of the shares, held, that, as the articles provided that the business of the company should be conducted by not less than five directors, four directors had no power to make the call or to enforce it, and that the forfeiture was invalid. Garden Gully Co. v. McLister, 1 App. Cas. 39; Kirk v. Bell, 16 Q. B. 290; Thames Haven Dock, etc., Co. v. Rose, 4 Man. & G. 552. Ch. Div., Nov. 15, 1880. Re Alma Spinning Co. Opinion by Jessel, M. R., 43 L. T. Rep. (N. S.) 620.

SPECIFIC PERFORMANCE - WHERE IT INVOLVES FRAUD ON PUBLIC WILL NOT BE ENFORCED. - Where a person who had undertaken to edit a guide-book to London, refused to deliver up his manuscript (for which he had received the agreed price) unless his employer consented to abandon his intention of stating on the title-page that the work was "edited" by a person who had taken no part in the preparation of the work, "assisted" by the true editor. Held, that the editor could not be compelled to carry out his agreement under circumstances which involved the committal of a fraud upon the public. Ch. Div., Dec. 3, 1880. Post v. Marsh. Opinion by Fry, J., 43 L. T. Rep. (N. S.) 628.

NEW BOOKS AND NEW EDITIONS.

SICKELS' MINING LAWS.

The U. S. Mining Laws, and the Decisions of the Commissioners of the General Land Office and the Secretary of the Interior thereunder; together with the circular instructions from the General Land Office, and forms for establishing proof of claims; also the decisions of the Supreme Court of the United States under the Mining Acts. By D. K. Sickels, General Land Office, Washington, D. C. San Francisco: A. L. Bancroft & Co., 1881. Pp. xii, 677. HIS is probably a useful and important manual for the mining country, where they dig the money for us to spend. It is arranged in an orderly manner, has indices of contents and cases, and is well printed.

THIS

LEE'S HAND-BOOK FOR CORONERS. Hand-book for Coroners; containing a digest of all the laws in the thirty-eight States of the Union, together with a historical resume from the earliest period to the present time. A guide to the Physician in Post-mortem Examinations and Valuable Miscellaneous Matter never before collated. By John G. Lee, M. D., Coroner's Physician of the City and County of Philadelphia, Penn. Published by Wm. Brodhead, Agt., Philadelphia, 1881.

The title-page pretty fully describes the scope and contents of this book. The introductory chapter on the history of the office is instructive and interesting. The practical hints to physicians as witnesses as to the

The Albany Law Journal.

A

ALBANY, MARCH 12, 1881.

CURRENT TOPICS.

He had

N interesting question in the law of perjury was passed upon by Justice Westbrook, at the Albany Oyer and Terminer last week. The prisoner was indicted for perjury in an affidavit. called on the notary early in the day, and told him he wanted to swear to some affidavits, and the notary being busy told him to call later. He accordingly called again, and the notary asking, "where is the paper?" he laid before him the paper already signed, or signed it in the notary's presence, and the notary then signed the jurat, without any other words or formality. Justice Westbrook held that if the jury were satisfied that the prisoner meant to swear to the affidavit, this was perjury if the affidavit was false. But the indictment is for false swearing, not for intending to swear falsely. And the difficulty seems to be that this evidence shows no intention to take an oath. Undoubtedly the prisoner meant the notary to understand that he had come to swear, but did he swear? was there any attestation ? — did the prisoner call God to witness? --can an oath be administered unless the person appointed to administer and certify the oath says something to which the affiant by words or signs assents, or the affiant himself declares that he swears? The Court of Appeals held in Case v. People, 76 N. Y. 242, that the affiant and the officer must be face to face; that the affiant cannot send the signed affidavit to the officer by another person. But Justice Westbrook says: "When, however, the officer and the would-be affiant are face to face, and when communication is thus clearly directly established between them, thought and intent can be expressed by the one to the other, either in uttered words or in writing, and when conveyed in either way, the one is as clear and as forcible as the other. The statutes require no particular form of oath.” And he details the essentials of the ceremony as follows: "1st. The meeting of the prisoner and the officer for the avowed and declared purpose of

verifying the account in the manner prescribed by statute. 2d. A declaration, partly printed and partly written, subscribed by the prisoner, in which he distinctly states he has been duly sworn' and on his oath deposes. 3d. The delivery of the declaration thus subscribed to the commissioner, who reads it, and thereby is fully informed of what the prisoner states to him by written and printed words. 4th. The acceptance by such commissioner to and in the presence of the party deposing, of such written and printed statement as a verbal declaration and oath before him, as evinced by the officer's signature to the jurat. And 5th. The declaration of the officer to the prisoner that an oath has been administered, by the delivery of the statement to him as one duly verified, and its acceptance as such by VOL. 23.- No. 11.

the prisoner, with his proclamation to the world that he has been duly sworn, evinced by its delivery to the board of supervisors for action thereon." This looks to us like predicating perjury upon estoppel, which, we take it, cannot be done. If it is necessary to have the parties face to face, this must be for some other purpose than merely conveying the paper. That could be done just as well by a messenger. If the judge's position is correct, that the intent can be expressed in writing, we do not see why a letter from the prisoner, addressed to the officer, and accompanying the signed affidavit, and saying that he swore to it, would not answer the purpose. We think the intent to swear must be gathered from something outside the affidavit itself.

The Court of Appeals have unanimously sustained the position of Attorney-General Ward and Justice Westbrook in the Belden-Dennison case. The point decided is, that in an action by the State against a citizen, on contract, in which the citizen sets up a counter-claim, the State failing to recover at all, the citizen cannot in any event have judgment for his counter-claim. This interesting question was argued by Senator Conkling for the State, and Mr. W. C. We have received and Ruger, for the defendants. read their arguments, printed in pamphlet, with great interest. Mr. Ruger's argument is very ingenious, acute, and lawyer-like. Senator Conkling's is very senatorial and eloquent. Mr. Ruger had the better in morals; the senator the better in the law. The senator's appearance in the case was because the attorney-general's conduct of the original case had been impugned by partisans and political newspapers, and as the senator remarked, that his "presence might defend him from the licentious and truthless insinuation that in some way or other, he had been in sympathy with, or in lenity with the interests of somebody concerned in this case. " We do not exactly see, however, why the senator "should have liked a professional brother to have come to my side had I been gibbeted for nothing at the crossroads of public condemnation." That would seem a rather late appearance to help the attorney-general. But the senator wound up rotundly, if rather con

fusedly, by declaring that he appeared to testify

"that there is nothing so valuable, nothing so honest, nothing so void of offense in these times that it should not be dragged through the hurricane and the surfeit of mire and detestable accusation." The attorney-general scarcely needed this distinguished championship, and has been amply vindicated by

the result. We call attention in this connection to Mr. Royall's article, in another column, on the Enforceability of State Contracts.

Senator Astor's bill to make Good Friday a legal holiday does not seem to us advisable. There is really no religious reason for compelling a man whose note falls due on Good Friday to pay it the next day before-for that is about what the bill amounts to. To be sure, the bank officers may shut

up the bank on that day, but they have to work twice as hard the next in consequence. We never met with a bank officer who did not regret these holidays. The notary is the only man who favors them, and he may well do so, for he reaps an unaccustomed harvest of fees from the protests accruing through the forgetfulness of the business community of the occurrence of the holiday. We already have New Year's, Washington's Birth-day, Decoration | Day, Thanksgiving, the glorious Fourth," and Christmas, and this is enough, if not too much. God knew what was best when he appointed one day's rest in seven. A multiplication of holidays is a sure indication of the decadence of a nation. As for the matter of sentiment, it is purely sectarian, for only the Catholics and Episcopalians set store by the day, and we can see no reason why a Presbyterian, a Methodist or a Baptist should be compelled to pay his note one day ahead of time, simply in deference to the sentimental regard of these other sectarians for a day not sacred by divine appointment, and destitute of national or patriotic significance. There is no legal obstacle to the Episcopalian's paying his note a day beforchand, if he desires; the Presbyterian wants all the "grace" the

law allows him.

Bills have been introduced in both houses of our

Legislature to define more particularly the word "land" in the chapter of the Revised Statutes on taxation, and to make it include wharves and piers, wharfage, cranage and dockage; bridges; telegraphs; railways, on, under or above ground; and all their structures and appurtenances; and all kinds of mains and tanks for gas, air, oil, steam or water.

In connection with the decision of our Court of Appeals in Cowley v. People, ante, p. 182, upon the admission in evidence of the photographs of the boy whom the gentle shepherd maltreated, we call attention to a similar decision of the Iowa Supreme Court, in Reddin v. Gates, 52 Iowa, 213, an action of assault and battery, where the court admitted a ferrotype showing the condition of the defendant's back three days after the injury. The court said: "The person who took the picture testified it was a correct representation of the plaintiff's back at the time it was taken. If it had been possible, it would have been competent for the jury to have examined the back at the time the picture was taken, for the purpose of more readily understand ing the other evidence. The ferrotype was therefore admissible.”

nomination for the vacancy in the Federal Supreme Court. Why, we cannot conceive, unless because he is also a clever middle-aged lawyer, a son of the late Judge Isham of the Vermont Supreme Court, utterly without judicial experience, and because Illinois is determined to have this place. We shall probably hear of a great many similar strong movements" in different parts of the West. Our readers already know our preference, and we simply reiterate that Judge Cooley is our candidate. There are probably five hundred lawyers as fit for this post as Mr. Isham; there are probably not fifteen so fit as Judge Cooley. The appointment of Mr. Wayne McVeagh as Attorney-General is generally deemed a highly respectable one.

We commence this week, and shall continue at intervals of perhaps a month, the publication of abstracts of the more important local practice decisions. We have never proposed to make this taken by our profession generally which supply this department a specialty, for there are publications want, such as the Practice Reports, the New York Daily Register, and the like; but we yield to the

suggestion from a number of subscribers that such a course would be useful. As for keeping up with the myriad decisions under the new Code and involving its construction, we do not undertake it.

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NOTES OF CASES.

NOTHER contribution on the vexed question of the effect of a stipulation for attorney's fees in a note, is the decision by the North Carolina Supreme Court, in the very recent case of First National Bank of New Windsor v. Bynum, where it is held that a paper, to be negotiable, must be certain as to the time of payment and the amount to be paid; and an instrument (in other respects) in the form of a note which contains a promise to pay a certain sum, with current rate of exchange on New York, together with counsel fees and expenses in collecting it, if placed in the hands of an attorney for collection, and which further provides that the payees shall have power to declare said note due at any time they may deem it insecure, even before maturity, is non-negotiable for uncertainty, (1) as to the amount to be paid, by reason of the stipulation for attorney's fees and rate of exchange, and (2) as to the time of payment, by reason of the provision which makes it payable before maturity at the future option of the payee. The court cited Woods v. North, 84 Penn. St. 407; S. C., 24 Am. Rep. 201; Bank v. Gay, 63 Mo. 33; S. C., 21 Am. Rep. 430; Brooks v. Hargreaves, 21 Mich. 255; 1 Pars. on Bills and Notes, 30, 46. See ante, 163.

In National Bank of Fayette County v. Dushane, Pennsylvania Supreme Court, November, 1880, 9 W. N. C. 472, it is held that usurious interest paid to a National bank cannot be set off in a suit on the note, but the remedy is by action of debt against