« AnteriorContinuar »
agreed that plaintiffs should have the right of absolute out intent to delay or defraud creditors, is valid, and control over the goods at all times. Held, that Mil- the assignee is entitled to priority over judgment credler had no leviable interest in such property liable to itors of the assignor. Such assignment is valid alseizure on execution. Sup. Ct., Minnesota, Sept. 28, though no money is paid; the debt upon which the 1877. Bentz v. Gussell (N. W. Rep.).
sureties are liable furnishes a sufficient consideration
to support it. It need not be registered to be availaRECENT BANKRUPTCY DECISIONS. ble against creditors, unless the time limited by statFRAUD.
ute for the registration of the bond has expired. U.
S. Dist. Ct., W. D. North Carolina. In re Reynolds, 1. False swearing and fraud : omission of worthless
16 Nat. Baukr. Reg. 158. debt from schedule.-If a bankrupt honestly regards a
2. When sureties regarded as creditors.-Where the judgment held by him as worthless, he is not charge
principal on a debt is insolvent, the sureties, in respect able with false swearing or fraud if he omit it from
to their liability, are regarded in equity as creditors, his schedule. Even if it has value as an asset, and he
and may retain any funds of the principal in their considers it as having value, still its omission must be
hands, even against an assignee for value, without nointentional in order to charge him with false swearing
tice. Ib. or fraud. U. S. Dist. Ct., W. D. Michigan. In re
3. What assignable. - An interest in lands, acquired Winsor, 16 Nat. Bankr. Reg. 152.
at an administrator's sale, where the administrator 2. Keeping proper books of account.-A merchant or
has not made title, is assignable; and such assignment trader who, prior to his becoming such, has kept books
need not be registered under the laws of North Caroof account showing the state of his affairs, is not re
lina in order to be valid against creditors. Such quired to carry their contents or any part of them
equitable interest is liable to the liens of judgment into his books opened and kept as a trader, in order
creditors, subject to the equities of a surety of the to satisfy the requirement of the statute as to a bank
debtor who holds a prior assignment thereof as inrupt keeping proper books of account while he is a
demnity for his liability. Ib. merchant or tradesman. Keeping proper books of account, within the meaning of the bankrupt act, is the
RECENT ENGLISH DECISIONS. keeping of an intelligent record of the merchant's or tradesman's affairs, and with that reasonable degree
ATTORNEY AND CLIENT. of accuracy and care which is to be expected from an
Principal and agent: solicitor receiving money for his intelligent man in that business, and a casual mistake
client: payment by solicitor in to his private account: therein will not prevent a discharge. Ib.
money earmarked.-B., a solicitor, was employed by the 3. Entry of chattel mortgage.- It is not required
trustee for the sale of an estate, his duty being to that a chattel mortgage given to secure a debt shall
receive the purchase-moneys and pay them in to the be entered upon the merchant's or trader's books.
trustees' banking account. B. received large sums,
paid them in to his private account, and died insolAn entry of notes upon the fly-leaf of the blotter is sufficient. Ib.
vent. His banking account at his death showed a large PARTNERSHIP.
credit principally made up of specific sums which cor1. Dissolution of : retiring partner must not impair
responded with receipts by him on account of sales of
the trust estate. Held, that these specific sums partnership fund to detriment of creditors.- If, on dis
could be followed by the trustees, and that there could solution of a copartnership, the retiring partner takes
not be a set-off allowed in respect of sums alleged to out a portion of the assets of the firm for his individ
have been paid by B. on account of the trust estate. ual use, he must do so without impairing the fund to
Decision of Malins, V. C., affirmed on appeal. Ch. which the creditors have the right in equity to look for
Div., April 13, 1877. Birt v. Birt, 37 L. T. Rep. (N. payment; and it must be made clearly to appear that
S.) 943. such remaining fund is ample. U. S. Dist. (t., Wis
DAMAGES. consin. In re Sauthoff & Olson, 16 Nat. Bankr. Reg.
Trespass: coal mine : remoteness of damage. --The 181.
defendant trespassed on the plaintiff's coal mine and 2. Insolvent partnership: retiring partner: home
worked part of the coal, leaving large pillars of coal stead.- Where a copartnership is insolvent, or is pos
unworked. Evidence having been brought to show sessed of assets not more tban adequate for the pay
that the coal left unworked was rendered practically ment of debts, one member of the firm cannot upon
worthless. Held, that damages in respect of the coal retiring rightfully withdraw beyond the reach of cred
so left were not too remote; and an inquiry ordered. itors, and to their injury, a portion of the assets and
Ch. Div., August 7, 1877. Williams v. Raggett, 37 L. T. make a personal appropriation of those assets by plac
Rep. (N. S.) 96. ing them in the form of a homestead. Under such
MARINE INSURANCE. circumstances, though it takes the form of a home Sub-agent of broker: lien on policies for premiums stead, the property is as much within the reach of a | paid by him: notice.-Plaintiff, a shipowner, employed court of equity as before; and no such change in its S. & Co., insurance brokers, to effect marine insurcharacter can give it new sacredness, or endow its | ances for him. S. & Co. had acted as plaintiff's brokers possessor with new privileges in its ownership or use. for about three years previously, and the ordinary Ib.
course of business was for plaintiff to pay S. & Co. on
monthly accounts between them. S. & Co. effected 1. When assignment of equitable estate to indemnify the insurances through defendant, as a sub-agent, who sureties valid: consideration.--In North Carolina a paid the premiums. Defendant had notice throughbond for title given on an executory contract for the out the transaction that S. & Co. were acting as purchase of lands conveys an equitable estate in the brokers for plaintiff, and also knew the ordinary land to the vendee which is assignable. An assign- course of business between plaintiff and S. & Co., as ment of such estate to indemnify sureties, made with-'to monthly payments, but the plaintiff did not know,
until after the policies had been effected, that S. & Co. not be decreed, inasmuch as there was no final conhad employed defendant or any one else to effect tract between the parties, the signing of a formal conthem. Plaintiff, in one of his usual monthly settle- tract being on the construction of the documents a ments with S. & Co., was debited with the amount of condition precedent to the parties being bound. Ct. the premiums on the policies, but the policies re App., June 8, 1877. Rossiter v. Miller, 37 L. T. Rep. mained. in defendant's hands. S. & Co. never paid (N. S.) 14. defendant the amount of the premiums. A loss oc
SHIPPING. curred on the property insured, and plaintiff brought Carriage of merchandise: warranty of seaworthiness: an action against defendant to recover the policies. ship seaworthy whilst lying in port of loading, but beHeld (reversing the decision of the Exchequer Divis coming unseaworthy at time of sailing on voyage with ion), that the defendant had a lien on the policies for cargo on board.-The implied warranty of seaworthithe amount of the premiums paid by him. Ct. App., ness into which the owner of a ship enters with the May 31, 1877. Fisher v. Smith, 37 L. T. Rep. (N. S.) owner of her cargo, attaches at the time when the 18.
perils of the intended voyage commence, that is, when RESTRAINT OF TRADE.
she sets sail with the cargo on board for her port or Covenant not to advertise former trade connection : destination; and this warranty is broken if she is breach: injunction.-A, for valuable consideration, cov: | then unfit to encounter these perils, although she may enanted with B that he would not carry on certain busi- have been seaworthy whilst lying in the port of loadnesses within ten miles of the town of ()., and would not | ing, and also at the times of starting from her anchor“by publication, advertisement, circular, or otherwise age for and arriving at the place of loading appointed hold himself out to have been, nor seek to induce by the charterer, and of commencing to take on board others to believe him to have been, formerly connected her cargo. The defendants were the owners of a vesin trade, either as partner, manager, or servant, with sel, and chartered her for a voyage to D., from the B." A and B had carried on business in copartner port of S., where she was then lying in a seaworthy ship at M. and O., and B still continued to carry on condition. Pursuant to the terms of the charterbusiness at those places. Held, that the covenant was party, and by the orders of the plaintiff, the vessel pronot unnecessarily wide for B's protection, nor in gen
ceeded to a wharf situate in the port of S., and there eral restraint of trade; and that an advertisement is
loaded on board a cargo of cement belonging to the sued by A, in which he described himself as “late of
plaintiff. At the time when she commenced taking 0. and formerly of M.," was a breach of the covenant,
in the cargo she was seaworthy; but by the time of and an injunction granted accordingly. Ch. Div.,
setting sail on her voyage she had from some unknown May 3, 1877. Wolmerhausen v. O'Connor, 36 L. T. Rep.
cause become unseaworthy. The defendants were not (N. S.) 921.
guilty of negligence in sending her to sea in the conSALE OF REAL ESTATE.
dition in which she then was. Soon after starting from Vendor and purchaser: contract by letters : descrip
S. she began to leak; but the wind being fair for the tion of vendors: "proprietors:" stipulation for formal
voyage to D., the master resolved to keep his course contract: condition precedent: statute of frauds. –
for D., and he was not guilty of any negligence in not Certain real estate was offered for sale in lots delin
returning to S. The vessel did not reach D., but eated upon a plan on which various conditions were foundered at sea, and the plaintiff's cargo of cement printed, the last of the conditious being that each
was totally lost. Held, that the warranty of seaworpurchaser would be required to sign a contract em thiness implied by law upon entering into the charterbodying the foregoing conditions, and providing (inter party had been broken, and that the plaintiff was enalia) for the completion of the purchase at the expira- titled to recover the value of the cargo shipped by him tion of not more than two months from the date of
on board the vessel. Cohn v. Davidson, L. R., 2 Q. B. the contract. A purchaser made a verbal offer to the D. 455. agent of the owners to purchase certain lots for £1,000.
STATUTE OF FRAUDS. The agent told him that he must purchase subject to Parol promise to give house : agreement in considerathe conditions on the plan, and promised to submit tion of marriage : possession: part performance : inhis offer to the proprietors. Having done so, the agent cumbrances: statute of frauds.- A father, whose wrote to the purchaser that “the proprietors" had daughter was about to be married, verbally promised agreed to accept his offer to purchase the specified her and her intended husband that he would give plots for £1,000, subject to the conditions and stipula them a certain leasehold house as a wedding present tions printed on the plan, and that he had requested | for his daughter. With this view he had just purthe solicitors to forward him the agreement for pur chased the house, which was subject to a charge in favor chase. The purchaser wrote in reply that his offer had of a building society. Immediately on the marriage better be reconsidered, unless the proprietors were the young couple entered into possession of the house, prepared to leave him at liberty to delay building if and remained there until the father's death, paying he thought fit, to which the agent replied that his the ground rent rates and taxes, but no rent being deformer letter was not intended to convey a conditional | manded of them by the father. A few years afteracceptance of the offer, and that the purchaser was at ward the father died intestate, £100 still remaining liberty to do as he might think best about building. due to the building society in respect of the charge Shortly afterward a formal contract was sent to the upon the house. Held, affirming the decision of purchaser, who thereupon wrote repudiating the con Malins, V. C., that the giving possession of the house tract and refusing to complete. On an action by the was a part performance sufficient to take the case out vendors for specific performance of the alleged con of the operation of the statute of frauds, and that the tract, held (agreeing with Jessel, M. R.), that the word agreement to give the house, without any mention of “ proprietors" was a sufficient description of the incumbrances, being established, the husband and vendors to satisfy the statute of frauds, but (differing wife were entitled to have au asssigument of the house from Jessel, M. R.) that specific performance could | free from incumbrances, and to have the balance due to the building society paid out of the intestate's cian sees and writes best when he writes as a physiestate. Ct. App., June 19, 1877. Ungley v. Ungley, 37 cian, and the lawyer, in like manner, when he confines L. T. Rep. (N. S.) 52.
himself alone to legal topics. The two most useful
works ever written upon medical jurisprudence, in BOOK NOTICES.
point of utility to lawyers, were works of combined
authorship, the first being that of Paris and FonWAIT'S ACTIONS AND DEFENSES.
blanque, in England, and the next that of Wharton A Treatise upon some of the General Principles of the Law, and Stillé, in our own country. And the merit of whether of a legal or equitable nature, including their re
these works lies in the simple fact that in each, the lations and application to actions and defenses in general, whether in Courts of Common Law or Courts in medical topics were treated by a physician and the Equity; and equally adapted to courts governed by
legal ones by a lawyer. For practical utility, thereCodes. By William Wait, Counselor at Law. Volume II. Albany: William Gould & Son, 1877.
fore, these works, other things being equal, may be THIS is the second volume of Mr. Wait's great work
considered as models of what a legal treatise on this I now in process of publication, and which is intended
subject should be. Should any lawyer, however, deto embrace the whole body of the law relating to civil
sire to sound the depths of such physical topics as are
treated in this volume, he will be abundantly reactions and defenses. This volume covers these subjects: Carriers, Action on the Case, Cemeteries, Cer
warded. It is not only well written, but profusely tiorari, Charities, Charter-Party, Chattel Mortgages,
illustrated by colored drawings, thus giving an excepNature and Ownership of Chattels, Choses in Action,
tionally high value to the discussion of the subjects Churches (including religious corporations), Commoda
embraced in the text. tum or Loan for use, Common Law, Contribution, Cor
MAINE REPORTS, VOL. LXVI. porations, Action of Covenant, Covenants, Creditor's
Reports of Cases in Law and Equity determined by the SuBill, Damages, Death, Action of Debt, Deeds, Deposit, preme Judicial Court of Maine. By Josiah D. Pulsifer, Detinue, Bill or Suit for Discovery, Divorce, Domicile,
Reporter to the State. Maine Reports, Volume LXVI.
Portland, Me.: Dresser, McLellan & Co., 1877. and Easements. The plan, purpose and scope of this
This volume appears to contain a large number of work were noticed and explained by us in a review of
valuable cases. Among them we notice the following: the first volume at page 215 of volume 15 of this jour
Adams v. Blethen, p. 19: The liabilities implied by innal, and we need only say that the present volume is, in every respect, fully up to the promise made in the
dorsing a promissory note can be qualified or restricted first volume. The work, when completed, will be a
only by express terms. Wing v. Wing, p. 62: The valuable addition to the legal compilations of the age.
words "AB stole windows from C D's house," are not
in themselves actionable as imputing either a charge of WOODMAN & TIDY's FORENSIC MEDICINE.
larceny, or an act of malicious mischief upon real es
tate. Haverly v. Bass, p. 71: A statute conferring Forensic Medicine and Toxicology. By W. B. Woodman, M. D., and C. M. Tidy, M. B. 1 val., 8vo., pp. 1083. Phila
upon municipal officers power to remove a person indelphia: Lindsay & Blakiston, 1877.
fected with a disease dangerous to public health, is not This is a valuable work, but for medical experts unconstitutional. Meader v. White, p. 90: A loan of only, for, instead of being, as its title imports, a money made on the Lord's day is void, and a promise treatise on Forensic Medicine, it is more properly a to repay it cannot be enforced. Ladd v. Patten, p. 97: treatise on the practice of medicine in its incidental A contracted to pay B a stipulated price to do certain relations to chemistry and the administration of jus
work, and “to find help" to aid him, B used a matice. The authors must have so intended it them chine owned and invented by him in the work, which selves, when in their volume of 1,083 pages they de dispensed with the need of "help.” Held, that A was voted nearly 500 to the chemistry of poisons alone,
not liable to pay for the use of the machine. Dillingwith chapters upon the surgery of wounds, surgical
ham v. Blood, p. 140: A note given for intoxicating fever, diet-tables, the law of projectiles, and only some
liquors sold in violation of law, is good in the hands of seventy-five pages to the great subject of mental un- | a bona fide purchaser for value and without notice, and soundness. Even on this topic they have given us of his assignee who had notice when he took the note. descriptions alone of the medical aspect in gross of Ryder v. Mansell, p. 167 : The rule forbidding a tenant insanity, represented by some forty cases, while at the
to deny his landlord's title applies between the hirer same time omitting to give us the judicial aspects of
and letter of a house standing upon the land of a third these cases or telling us what principles they serve to person as personal estate. Inhabitants of Stockton v. illustrate in the law of insanity. We have no fault to
Staples, p. 197: The domicile of a party in any particufind with the authors, because being physicians they lar locality is acquired by a union of intent and of write as physicians, and we take pleasure in bearing presence. Lindsay v. Hill, p. 212: In order to render witness to the great variety of physical topics they a contract void for usury, it must be tainted with that have embraced in their work, and the skillful manner offense at its inception, but a subsequent receipt of in which they are handled. It cannot be otherwise usurious interest upon a valid contract will render the than a most valuable contribution to the boundless lender liable to the penalty or forfeiture incurred. subject of medical jurisprudence, but must always Averill v. Longfellow, p. 237: A claim for damages for remain a practically incomprehensible volume to law assault and battery is not assignable. Little v. Boston yers, por is this to be wondered at. It has long ago and Maine Railroad, p. 230: A common carrier is liabeen admitted that no work on medical jurisprudence ble for the loss of a parcel, however valuable, though can be successfully written either by a physician or a ignorant of its contents, unless he make a special aclawyer, and the history of the literature of that sub ceptance. White v. Bradley, p. 254: Ways of necessity ject fully justified this assertion. In every case where over adjoining land of a grantor do not include ways this has been attempted it will be found to be the in- of convenience to all parts of the lot granted. State variable rule, and one in complete consistency with v. Haynes, p. 307: The owner of a dwelling-house who the despotism of professional training, that the physi- I burns it in the night time is not liable to indictment for arson under the common law. Larabee v. Sewall, ences to every thing of value that has ever been decided p. 376: Where two alternatives to avoid collision are in this country. And it embraces not only such cases presented to the traveler on the highway, either of as pertain to practice in bankruptcy, but also those which might be chosen by a prudent person, it is not having to do with collateral questions arising out of negligence to take either. Proprietors of Baptist bankrupt cases, such as constitutional law, the rights Meeting-House v. Webb, p. 398: A corporation is not of the assignee, suits to recover choses in action, the dissolved by merely neglecting to exercise its corporate limitation of two years, and the effect of a discharge, powers. Proprietors of Union Meeting-House v. questions that are continually arising in litigations in Powell, p. 400: The owners of pews in a meeting-house State courts. The volume is, therefore, of value, not owned by a corporation have simply an easement in merely to those of the profession who attend to bankthe freehold. Shanny v. Androscoggin Mills, p. 420: | rupt practice, but to every practicing lawyer. The aim The servant whose duty it is to keep machinery in re of the author hąs been, as he states in his preface, to pair is not a fellow-servant with the one using it, so make a practical, not a theoretical work, to show what as to exempt the master for liability to the latter for is established, not what may be decided, to follow the neglect of the former. State v. Maine Cent. R. R. rather than anticipate decisions, to furnish a useful Co., p. 488: Immunity from taxation is not one of the guide rather than brilliant theories. The success which franchises of a corporation. Cragin v. Cragin, p. 517: | the work has met has justified the wisdom of this aim. A procured a policy upon his life “for the benefit of | As the work in its previous editions is well known to his wife and children,” and had it made payable to the profession, we need only say that the present edithem, and died intestate. Held, that the policy will tion is fully up to the former ones in execution, and not go to the administrator as assets, but to the bene | superior to some of them in the style in which it is ficiaries by virtue of the contract, and not by descent. I produced. We would, however, make a criticism upon The reporting is excellently done, and the volume is the author's method of citation. He denotes the well printed and bound.
Pennsylvania State Reports as simply “Penn." The
official name of the reports is “Pennsylvania State,'' SMITH'S ELEMENTS OF THE LAWS.
and they should always be cited as “ Penu. St." or Elements of the Laus, or Outlines of the System of Civil “Pa. St.” Any other way of citing them is apt to and Criminal Laws in force in the United States and in
mislead. the several States of the Union. Designed as a text book and for general use, and to enable any one to acquire a competent knowledge of his legal rights and privileges ANGELL ON WATER-COURSES, SEVENTH EDITION. in all the most important political and business relations of the citizens of the country, with the principles A Treatise on the Law of Water-Courses ; with an Appendix upon which they are founded, and the ineans of assert
containing Statutes of Flowing and Forms of Declaraing and maintaining them in civil and criminal cases. tion. By Joseph KAngell. Seventh edition, revised By Thomas L. Smith, late one of the Judges of the Su
and very much enlarged by the addition of new matter preme Court of the State of Indiana. New and revised to the text, and notes. By J. C. Perkins, LL. D. edition. Philadelphia: J. B. Lippincott & Co., 1877.
Boston: Little, Brown & Company, 1877. This work is intended as an elementary treatise cov The editor of this edition of this standard work has ering the entire field of legal science, and giving gen- | made numerous important additions to the case law eral principles in a concise form fitted for popular embodied therein, all the important and leading study and reading. It appears to us to be a very excel cases on the subject that have been published since lent book; the best that we have yet seen for the pur the sixth edition was issued in 1869, being embraced. pose it is designed. Most treatises purporting to give | Besides, he has added, in an appeudix, various concise the law in a shape fitted for popular study, are very and convenient forms adapted to proceedings to obunsatisfactory productions, and do little to aid an un tain redress for injuries done by water and waterprofessional man in obtaining an insight into the mys courses, collected from authentic and approved sources. teries of the law. The book, however, if carefully These forms are peculiarly adapted to the method of read, cannot fail to impart an excellent knowledge of procedure prevailing in Massachusetts, but will be the general principles - enough to meet the needs of found useful in the way of suggestion to practitioners those not designing to become lawyers. It will also in other States. The work in its earlier editions has be found useful to the law student, being as good a been so long before the profession, and is so well book as he can start in, and we would recommend it known, that any thing we might say in its commendato every young man who hopes to join our profession. tion would be needless. It is, as formerly, elegantly The book is well printed aud bound, but lacks an index, printed and bound, and is a book that every lawyer of which detracts from its value.
learning or taste would love to see in his library.
BUMP ON BANKRUPTCY, TENTH EDITION.
TOWNSHEND'S LAW OF SLANDER AND LIBEL. Law and Practice in Bankruptcy. The Practice in Bank.
A treatise on the Wron os called Slander and Libel and on the ruptcy; with the Bankrupt Law of the United States as
Remedy by Civil Action for these Wrongs. To which is amended, and the Rules and Forms, together with Notes referring to all decisions, reported to Septem
added in this Edition a chapter on Malicious Prosecu
tion. By John Townshend. Third Edition, New York: ber 1, 1877. By Orlando F. Bump, Register in Bank
Baker, Voorhis & Co., 1877. ruptcy. Tenth edition, New York: Baker, Voorhis & Co., 1877.
There are few American law writers deserving of Bump on Bankruptcy has long been recognized as more unstinted commendation than Mr. Townshend. the standard work upon the subject upon which it While his performauces have not been numerous, they treats, and each succeeding edition places it farther have been uniformly good. The work that his bands out of the reach of rivalry. The present edition is, find to do is done with a pains-taking and an honesty in many respects, much superior to any of its prede which are the exception and not the rule arnong the cessors. It contains references to all cases reported up law writers of to-day. This Treatise on Slander and to September 1, 1877, and in addition all cases decided Libel is his chief work, and it is one on which he may under the acts of 1800 and 1841, so far as they are ap safely rest his reputation. In the scientifio method plicable, are cited, so that the work contains refer- | in which he has treated his subject, in the excellence of the arrangement, in the clear statement of legal examine every authority, and to say, with Mr. Brightly principles, in the lucid analysis of cases, and in the | in the preface to his Federal Digest, “in no case has thorough and complete research evinced, he has in the syllabus of a reporter been implicitly relied on, this edition equaled at least the efforts of Mr. Starkie but the case itself has been collated, and the result and of Mr. Folkard in the same field.
given in the author's own language.” That this is the The present edition differs from the preceding in Messrs. Abbott's view of a digester's duty is apparent containing several hundred additional references to from the fact that Bathgate v. Haskin is found under decisions in the American, English, Irish, Scotch, the head of “Set-off," at p. 157 of the “Addenda” to Canadian and Australian reports, and also in the addi- | their New York Digest. tion of a chapter upon Malicious Prosecutions. It Brightly's New York Digest closes with the 58 N. contains a very complete collection of the cases to the Y., and cannot, therefore, embrace the present case, present time. Of the merits of the book it is unneces which is reported in vol. 59 of those reports. Thus sary to speak in detail, since a work that has so soon fortifying his previous position, the complainant here reached a third edition cannot be a stranger to the rests his case. profession.
His sole object in pointing out these errors is the
fulfillment of that duty which every lawyer owes to CORRESPONDENCE.
his profession, viz.: to lessen the labors of his breth
ren, by calling attention to these inaccuracies, which MR. BARBOUR'S DIGEST.
are inseparable from digests of the law. To the Editor of the Albany Law Journal:
NEW YORK, October 22, 1877. SIR - Referring to my complaint that certain cases
Very truly yours,
J. D. bearing upon the question of "Set-off," are not to be found under that head in the “Digest of New York THE NEW RULES GOVERNING ADMISSION TO THE Reports," "0. L. B." (Mr. Barbour I presume), in
BAR. your issue of October 20th, says: “It ought to be held
To the Editor of the Albany Law Journal: a sufficient answer (if it be true) that they do not be
SIR-I was one of the members of the graduating long there."
class of the law department of the University of the How effectually he disposes of his parenthetical “if
city of New York; but at the time I graduated, I was it be true,” and proves the cases to belong where I not a citizen of the United States, and therefore could placed them, I leave the readers of your valuable
not take the oath of office. journal to determine, while I assign a few reasons why
Under the then existing rules of the Court of Apthe disagreements of digesters respecting “the precise
peals, I was entitled to be (assuming that I was a citimethod of marshaling cases decided," have nothing to
zen) admitted to the bar by taking the oath of office do with the subject of my complaint.
and being sworn in, aud the question now arises, what First. The cases of Smith v. Felton and Smith v. Fox
effect will the new rules of the Court of Appeals have admit of no such disagreement, because the sole ques
in this case. tion in each case is one of set-off, which the court be
Hoping, Mr. Editor, that you will kindly inform me low refused. As reported, the decision in the latter
what, in your opinion, will the effect of said new rules case is simply: “ Held error, on authority of Smith
be in my case, I remain, v. Felton, 43 N. Y. 419," which plainly will not admit
A STUDENT. of its being cited elsewhere than under such prior
NEW YORK, Oct. 15, 1877. ruling.
Second. In point of fact there exists no such dis [We have received a number of communications of agreement among the digesters in regard to these like tenor with the above, from young men who had cases.
commenced the study of the law with the anticipation In Brightly's Digest of New York Reports, both are of an early admission to the bar, and for one reason found under "Set-off," vol. 2, p. 3435, and nowhere else. | or another, had not acquired the right to style themSee table of cases. In Abbott's New York Digest, the selves attorneys and counselors, when the new rules former case is found under “Set-off," in vol. 5, p. 514, regulating admission went into effect. To all these and nowhere else; the latter case, strange to say, is not communications we would return this answer: Those to be found in that valuable work. See table of cases. who were not members of the bar when the new rules In the index to 43 N. Y., Smith v. Felton is found went into effect must be admitted under those rules, under “ Equitable Set-off," " Partnership,” and “ As and in no other way. And the fact that the candidate signee for Benefit of Creditors," and in the index to was almost over the boundary line which divides the 48 N. Y., Smith v. Fox is found under “Set-off”. profession from the rest of the world on the last and “ Assignment for Benefit of Creditors." So far, day of September, 1877, gives him no advantage over no disagreement among the digesters is manifest, for others not in that position. The attendance at the all agree in placing the cases under “Set-off," where law school by our correspondent will be counted in they properly belong. It was specially reserved for estimating the time of his clerkship, either one or two Mr. Barbour, by misplacing the cases, to furnish the years, as the case may be, precisely as it would had he disagreement, and for “0. L. B." to advance it in not been graduated until after the adoption of the mitigation of the mistake.
rules. Some of those who have written us intimate " Bathgate v. Haskin," says “ O. L. B.," " is not a that the new rules, so far as they apply to those who case of set-off, but of counter-claim. The reporter's were already entered as students at the law schools,are head-note contains not one word respecting set-off.” unconstitutional, as violative of a contract. There is, Are we to infer from this statement that the “Digest however, nothing in this idea. The State has full of New York Reports” is based upon the reporter's power to determine who may practice as attorneys in head-potes? If so, its value as an original work is its courts, and the Federal Constitution imposes no considerably impaired, for a digester is supposed to l limit upon this power.-ED. A. L. J.]