The Albany Law Journal.

ALBANY, SEPTEMBER 22, 1877.

CURRENT TOPICS.

The New York system of procedure has been the subject of much criticism, but whatever may be its faults, it renders possible the transaction of an enormous amount of legal business. In fact, the litigation disposed of by the courts of this State is far beyond any thing known in any other State in the Union, and, we imagine, surpassing any thing known elsewhere, except perhaps in the courts of THE Court of Appeals reconvened on Monday last, Westminster and London. Our judicial force is after a vacation of about three months, and large, and is actively employed. In addition to the resumed its active duties, which it will continue seven judges who constitute the Court of Appeals, with brief interruptions until the middle of June, there are, including the thirty-three Supreme Court 1878. Under the present Constitution this tribunal judges, the judges of the Superior Courts of New is in several ways unlike any other sitting in this York and Buffalo, and the judges of the New York country. It is a purely appellate court, not only in Court of Common Pleas, and those of the city courts respect to causes coming before it, but in reference of Brooklyn and several other cities, and the county to the duties and functions of those composing it. judges, considerably more than a hundred judicial Its members never take part in any judicial proceed- officers competent to hold courts, before whom acing outside of the court. It reviews, not as in the tions of almost any nature may be tried. But a case of most appellate courts, the decisions of nisi very large number of causes are tried by referees, prius tribunals, but those which have already been who relieve the regular judges, not merely by the argued and determined by an inferior appellate number of cases which they take from the calendar, body. It is not, as would be inferred from its posi- but by the circumstance that they take those cases tion, and from analogy with similar bodies in other which are liable to consume a vast amount of time, States, a supervising court, but is simply a court of and which turn upon questions of evidence. In adlast resort, passing upon such cases as may be regu-dition, in cases in which no defense is interposed, larly brought before it, and over which it has jurisdiction. It is decidedly a court of limited jurisdiction, and a very great share of the litigation which occupies the attention of the different judicial

bodies in the State can never reach it. The intention of those who planned the system of which this court forms a part was, that only cases which might present questions of importance, or involve a sufficient amount to warrant a protracted litigation, should be argued therein, and that its time should not be taken up in the consideration of cases in which appeals were brought solely for the purpose of delay. If the result hoped for has not been completely obtained, it has been very nearly so, and but a very few unimportant cases come before this court, compared with what come before courts of last resort in other States, or with what would come before it if the rules governing appeals were more lax. Each one of the features we have mentioned may exist elsewhere, but in no State, so far as we know, do they all exist in respect to the court of last resort. In another way the court is remarkable, and that is, in the very large number of cases it hears and determines. Notwithstanding every effort is made to keep causes from being brought here, the amount of business in this State is so great that the calendar is always crowded. The court delivers opinions in over four hundred decisions per annum, besides disposing of numerous cases in which no opinions are given. As these opinions are upon law questions only, they constitute probably the most valuable collection of case law now coming into existence, in this country at least.

VOL. 16.- No. 12.

judgments may be entered either without application to the court or with an application, which, as a rule, requires but little attention. A very large number of actions are thus disposed of, which, under other systems of practice, occupy the time of judges and officers of the court, and delay more or less the litigated business. The cases in which judgments are taken by default exceed many times those appearing upon the calendar, and the amount of business actually done can only be determined by an examination of the records kept by the clerks of the courts. If to this is added the suits litigated in the two or three thousand justices' courts, many of which in other States would be brought in courts of record, there would seem to be enough going on to keep most of our lawyers busy.

The laws designed for securing the observation of Sunday as a day of religious worship have, as a rule, been efficient of late years for the purpose only of enabling dishonest men to escape the fulfillment of contracts of which they have received the benefit, and dishonest corporations to evade liability for injuries resulting from their negligence, upon the ground, in each case, that the party seeking to enforce the contract or to recover on account of the negligence, derived his right of action through a violation on his part of the laws in question. A case has arisen, however, in the courts of Wisconsin, where the laws against Sabbath breaking have operated in a manner more in accordance with justice. A railway company contracted to carry a number of church-goers to their place of worship

and back to their homes. The carriage to the place was performed, but that back was not, and the Supreme Court held that no action could be sustained against the railway company for a breach of its general duty as carrier, on the ground that it was under no obligation to carry passengers on Sunday. If the Sunday laws can be made to operate so as to defeat contracts of this kind, we imagine they will not long remain in the statute books.

The London Law Journal publishes a list of the leading cases decided by the English courts during the past legal year. They are only fourteen in number, and out of them there are only five that are of authority on this side of the water. These cases are Regina v. Keyn, 46 L. J. Rep. 17 (the Franconia case), where it is held that an English criminal court has jurisdiction to try a foreign captain of a foreign vessel for manslaughter, committed by collision with an English ship within three miles from the English shore; Randall v. Newsom, 46 L. J. Rep. 259, where the Court of Appeal hold that in every sale of goods there is an implied warranty that the article sold shall answer the description in the contract, and that this warranty is absolute, and extends to latent as well as to discoverable defects; Purcell v. Sowler, 46 L. J. Rep. 308, where the same court decide that a newspaper report of the proceedings of a public board is not privileged; Wilson v. Finch Hatton, L. R., 2 Exch. D. 336, where it is decided that in letting a furnished house there is an implied warranty that the premises are fit for occupation, and Seaman v. Netherclift, 46 L. J. Rep. 128, where it is decided that no action will lie for defamatory words spoken by a witness in the course of his evidence in a judicial proceeding. A rather small showing for a year, in which the courts of England have done more business than in any preceding one. Yet we doubt if the American courts have produced a greater number of decisions that will be found valuable as leading authorities in

other countries.

As

ever, though the circumstance that since 1860 all those chosen to the supreme bench have resided at the north or west, and the south is unrepresented, somewhat narrows the circle of candidates, and leaves only two or three prominent names as those among whom the President can properly make a selection. We have heretofore expressed our desire that Judge Dillon should receive the vacant place, but the territorial rule will exclude him. Among those names as likely to be appointed, Ex-Secretary Bristow seems to stand foremost, and we trust that he will be preferred both by the power that nomi

nates and the one which confirms.

The decision of the Rapid Transit cases by the Court of Appeals settles a matter of considerable importance to those having occasion to travel about the streets of New York city. The constitutional points involved are of general moment, but the commercial interests dependent upon the question whether the movement of individuals about the metropolis shall be slow or rapid are so great that they render the legal and constitutional bearings of the decisions given of apparently little significance. Yet the decisions given are important, as being adjudications of the court of last resort upon provisions of the Constitution of recent adoption, and which were designed to check an evil that was unknown until recently. It is to be regretted that the court did not, in each case, reach a conclusion that could be concurred in by all its members, but the result having been in favor of rapid transit, it is probable that those who have been instrumental in securing that end are as well satisfied as if they had gained their suit by a larger majority.

The newspapers are again discussing the appoint-relation to the prosecutor, which were made by ment for the vacancy now existing upon the Federal Supreme Court bench, and suggesting numerous names for the consideration of the President. the Senate has a voice in the matter, and as that body sometimes exercises its privilege in a way not in harmony with the wishes of the executive, it is perhaps well that the President has postponed his nomination, and that he does not act until the assembling of Congress, when he can consult with the leaders in the Senate, and avoid any wranglings similar to those which took place when the office of chief justice was vacant, and nominations were made by the President to fill it, which were unsatisfactory to a majority of the senators. As to the appointee, there is as much diversity of opinion as

counsel at the trial of a suit in which the prosecutor was plaintiff. The article containing these statements purported to be an account of the trial in question, and the defense set up was, that the publication was privileged. The court held it was not, saying that the speech of counsel in a judicial proceeding does not afford matter for a privileged publication, and if it contain scandalous and defamatory matter, a prosecution for libel will be maintained. See, as supporting this holding, Saunders v. Mills, 6 Bing. 213; Flint v. Pike, 10 E. C. L. R. 668; Lake v. King, 1 Saund. 120; Rex v. Greecy, 1 M. & S. 273; Rex v. Lord Aberdeen, 1 Esp. 226. In Saunders v. Mills it was held that where the libel purporting to be the report of proceedings in a court

of justice did not profess to state the facts as deposed by the witnesses, but only as stated by the counsel for the prosecution, it could not be justified as a privileged publication. So in Rex v. Greevy, a prosecution for libel was sustained, where the publication of a speech made by counsel in the course of the trial of a cause contained observations injurious to the character of a party to the suit. In Rex v. Lord Aberdeen, the prosecution was sustained where the publication, consisting of a petition presented to a committee of Parliament, was ordered by the House of Commons to be printed, but it was also published elsewhere, and it was held to be unjustifiable, because it contained matter injurious to the prosecutor, and went beyond the privilege of Parliament. See, also, Philad., Wilm. & Balt. R. R. Co. v. Quigley, 21 How. 202, where it is held that while a report of a committee of investigation to corporate stockholders is privileged, yet a publication of the same afterward in book form, and circulated among the stockholders and others, is a libel. See, also, Snyder v. Fulton, 34 Md. 128; 6 Am. Rep. 314; Purcell v. Sowler, 46 L. J. Rep. 308.

on the part of the lessees toward the tenant would arise. But the lessees were held liable, upon the ground that they knew that their mode of using their property was productive of damage to the lawful rights of the tenant, which they were bound to respect. The conclusion of the court is supported by Greenland v. Chapin, L. R., 5 Exch. 248. See, also, Grumott v. Williams, 32 L. J. Rep. (N. S.) 237; Losee v. Buchanan, 51 N. Y. 476; 10 Am. Rep. 623; Wilson v. City of New Bedford, 108 Mass. 261; 11 Am. Rep. 352; Cahill v. Eastman, 18 Minn. 324; 10 Am. Rep. 184; Rysand v. Fletcher, L. R., 3 E. & J. | App. 350.

In the case of Wilson et ai. v. Finch Hatton, L. R., 2 Exch. D. 336, the defendant agreed to rent the plaintiffs' furnished house for three months, from the 7th of May, but having at the beginning of the intended tenancy discovered that the house was, owing to defective drainage, unfit for habitation, refused to occupy. The plaintiffs repaired the drains, and on the 26th of May tendered the house in a wholesome condition to the defendant, who refused to occupy or to pay any rent. The plaintiffs having sued for the rent and for use and occupation, the In the case of Firth v. The Bowling Iron Co., recourt held that, in an agreement of this kind, there cently decided in the Bradford (England) County is an implied condition that the house shall be fit Court, the lessees of a colliery, who were under for occupation at the time at which the tenancy is covenant with their lessor to erect fences either by to begin, and if the condition is not fulfilled, the stone walls or posts and rails, erected a fence of lessee is entitled thereupon to rescind the contract, posts and two lines of wire rope which had become and that the state of the house in question, at the unfit for colliery purposes. The fence divided the beginning of the intended tenancy, entitled defendcolliery works from pasture lands in the occupation ant to rescind, and that he was not liable for the of a tenant under the same lessor. The wire rope rent or for use and occupation. The rule in this in course of time rusted, decayed, dropped in case forms an exception to the one governing conpieces, and fell upon the pasture. The tenant's cat- tracts of leasing in general. The principal authority tle, in grazing, got pieces of the wire with their for the exception is the case of Smith v. Marrable, food into their system, and were injured. In 1867 11 M. & W. 5; 12 L. J. (Ex.) 223, where Lord Abintwo heifers died from eating this wire. With the ger says: "A man who lets a ready-furnished house lessor's sanction, complaint was made by the tenant surely does so under the implied condition or oblito the lessees, and compensation asked for, but no gation that the house is in a fit state to be innotice was taken by the lessees, and they continued habited," and he further says that "no authorities to use the wire rope as before, doing such repairs are wanted, and the case is one which common sense only as were required for their own purposes. In enables us to decide." This doctrine was adhered 1876 a cow of the tenant, which was pastured into in Sutten v. Temple, 12 M. & W. 52, and in Hart the same field, became ill, and was ultimately killed, being pronounced by a veterinary surgeon to be incurable. In the carcase a piece of wire was found imbedded in the under fold of the pericardium, which the cow must have taken up with the grass when feeding. For this cow, compensation was demanded, and refused, and thereupon this action was brought. The court held that the action could not be maintained on the ground that the wire fence was not a proper performance of the covenants in the lease, there being no privity of contract between the tenant and the lessor, nor upon the ground of negligence merely, there not being any relation between the parties out of which any duty

v. Windsor, id. 68. In the case of Dutton v. Gerrish, 63 Mass. 89, Shaw, J., says that in the case of furnished rooms in a lodging-house, let for a particular season, a warranty may be implied that they are suitably fitted for such use. See, also, Campbell v. Wenlock, 4 F. & F. 716. In Tully v. Howling, L. R., 2 Q. B. D. 182, the same principle was applied to a contract for the charter of a ship. See, however, Francis v. Cockrill, L. R., 5 Q. B. 501; Jones v. Just, L. R., 3 Q. B. 197; Keates v. Earl Cadogan, 10 C. B. 591; Surplice v. Farnsworth, 8 Scott (N. R.), 307; Heard v. Camplin, 15 L. T. (O. S.) 437; Searle v. Laverick, L. R., 9 Q. B. 122; Hart v. Windsor, 12 M. & W. 68; Westlake v. De Graw, 25 Wend. 669; Foster v. Peyser, 63 Mass. 243; McGlashan v. Tallmadge, 37 Barb. 313; Murray v. Mace, Ir. Rep., 8 C. L. 396.

VOLUNTARY CONVEYANCES.

THE
HE rules regulating voluntary conveyances in
this State, as they were understood in 1867,
were very fully and clearly stated by Judge Ingra-
ham, in Holmes v. Clark, 48 Barb. 237, as follows:

"1st. A conveyance made to children, for love or affection, is not fraudulent or void against subsequent creditors, if, at the time of the conveyance, the grantor had sufficient property otherwise to pay then subsisting debts.

"2d. Such conveyance would be void as to existing creditors at the date of the conveyance, if their debts are not otherwise paid.

"3d. It is not necessary that the grantee should be a participator in the fraud to avoid the deed. He may have received the conveyance honestly, and ignorant of the fraud, and yet the conveyance might

be void.

"4th. If the grantee, without knowledge of the intended fraud, becomes the purchaser for value, he should be protected, although the grantor acted from fraudulent motives.

"5th. A grant, made without other considerations than love or affection, cannot be set aside in favor of subsequent creditors, unless the transaction was fraudulent as between the parties, and made to defraud subsequent creditors."

In connection with these rules it will be useful to examine three prominent cases in the Court of Appeals, illustrating this doctrine :

ment.

being in 1847; otherwise it would have been a case of a conveyance to one and the purchase price paid by another, where a resulting trust does not arise, under our statute, except in favor of contemporaneous creditors.

Second. Savage v. Murphy, 34 N. Y. 508, A. D. 1866. Here the defendant, without consideration, transferred all his real estate to his wife and children, but continued in possession, without any apparent change of ownership, and continued in business, paying past indebtedness by obtaining new credit, and contracting new debts, until he failed. The transfer was held void as to subse

quent creditors. The court held that the fraud consisted in a design to obtain a credit by means of continued possession and apparent ownership, after · attempting to place the legal title of his property beyond the reach of creditors, and that the canceling of old debts by new credits is only a transfer, and not a payment of the past indebtedness. This is a very noticeable case, as the two principles enunciated in the last sentence seem to be new. The case does not disclose that the grantees participated in the fraud, and it would seem to fall under Judge Ingraham's fifth principle, in Holmes v. Clark, and until now it would have been supposed a case of valid conveyance, except as to antecedent creditors. It is our impression that this fifth principle, consonant, indeed, with the general opinion of the profession, is really applicable only to the cases embraced in statute of resulting trusts, where the price is paid by one and the conveyance taken to another, and where it is explicitly provided that there shall be no resulting trust, except to the then existing creditors of the persons paying the price. If our views of Savage v. Murphy are correct, the case is a highly important one, and takes a step forward on the questions at issue.

First. Carpenter v. Roe, 10 N. Y. 227, A. D. 1851. Here a corn merchant purchased real estate on the 1st of May, 1847, taking the title to his wife. He was then unembarrassed, and believed himself able to meet all his engagements at maturity. On the 15th of June next following he purchased of the plaintiff a lot of corn, giving his check, post-dated the 27th, in payment. On the 16th of June, being largely indebted, but, as he supposed, in solvent circumstances, he joined with his wife in a conveyance of the real estate in question, to their son-in- Third. Case v. Phelps, 39 N. Y. 164, A. D. 1868, law, in trust for the use and benefit of the defend- is a very radical and peculiar case. The defendant, ant's wife. On the 23d of June, in consequence of owning real estate worth $5,500, but mortgaged for the sudden fall of the price of corn, occasioned by $3,500, and owing about $700 in addition, volunnews from Europe, the defendant suspended pay-tarily and without consideration conveyed the same immediately to his wife, without any intent to defraud his creditors then existing, but with a view to engaging in a new business, and to secure the property to himself and his family in the event of losses in such business. His own deed was not recorded, but that from his grantee to his wife was recorded. There was no change of possession, but he continued to occupy the property with his family. The plaintiff, without knowledge of the conveyances, became surety for money which the defendant subsequently borrowed. The defendant engaged in the new business and became insolvent. Judge Woodruff, giving the opinion, says: "I cannot regard this question as in substance other than the inquiry; many a man, for the purpose of preventing his future creditors from collecting their demands out of his prop

It was held that the trust for the wife, as well as the original conveyance to her, was fraudu- | lent and void as to the plaintiffs. The leading principle of this case is thus expressed in the opinion: "To avoid the conveyance and trust to and in favor of his wife, it was not necessary that the debtor should be insolvent, or believe himself to be so, when they were executed or created. It was sufficient that he was indebted, and that insolvency would be the inevitable, or probable result of want of success in the business in which he was engaged. He could not, legally or honestly, in this manner, provide for himself or family, and cast upon his creditor the hazard of his speculation." The original conveyance must have been regarded by the court as ineffectual to vest the title in the wife, it