of the Court of Sessions from off her feet. Whether the different treatment received by the two lady advocates was due to extrinsic causes or to the difference between the procedure prevailing in the two countries, we are not informed, but we believe the event in each case was the same, namely, the female litigant did not succeed. We think, as a rule, the ladies will not benefit their own interests by coming into court as advocates of either their own causes or the causes of others. While a woman only now and then appears in court, such performances will be applauded, but when it becomes an every day affair, if it ever does become so, the sex will find the same difficulty in obtaining employment and the same discrimination as to remuneration as exists in respect to other kinds of business, which have always been open to male and female alike.

Certain articles have recently appeared in the New York Nation, animadverting upon some decisions made by Judge Dillon, of the United States Circuit Court, in a railroad case, and acts done by him therein, and intimating that improper influences led to such decisions and acts. In a letter written by Judge Dillon to Hon. Thos. C. Reynolds, and published in the St. Louis Republican, the charges made in the Nation are fully met and refuted. This was a proper thing for the Judge to do, but it was not needed to vindicate him before either the public or the profession. His reputation as an impartial and capable judge is too well established to suffer any thing from malicious charges, even when appearing in and sanctioned by a newspaper of high literary standing. The Central Law Journal suggests that, under a proper press law, a person making such attacks as this one would find himself behind the bars of a prison. We think, however, that a stringent press law is not needed for the protection of an upright judiciary. Slanderous charges against a well-known judge do comparatively little injury, as the public usually attribute them to their true source, namely, anger and disappointment on the part of defeated litigants, and do not believe them at all. Now and then a specific charge may, unless explained, raise a momentary doubt, but an explanation as full and satisfactory as that made by Judge Dillon, clears away every shadow of suspicion that even those who are anxious to believe the statements of his maligners may have cherished.

1st, so far as it may be necessary to supply what may be wanting to make the law governing practice in our various courts complete. The portions of the present code unrepealed are given in the edition of the new code edited by Mr. Throop, but the other editions, heretofore issued, make no mention of the fact that such portions have not been abrogated. The unrepealed sections are as follows: Sections 1 to 8, 30 (subd. 2, 10 and 11), 52 to 71, 111, 112, 118, 132, 136, 166, 167, 206 to 217, 224, 243, 244, 261, 277, 284, 292 to 309, 311 to 322, 351 to 371, 375 to 381, 427, 469, 471 to 473. Section 256 has, in part, been abrogated by Laws of 1877, ch. 417, but very many of its important provisions remain. The error into which the profession has fallen has naturally resulted from the perusal of the various irregular editions of the new code, circulated in every part of the State immediately after the adjournment of the legislature, and which purported to contain the entire statute law intended to regulate practice after the 1st of September next. Those who have consulted only the edition prepared under the supervision of the commissioners have not fallen into this error.

IN

NOTES OF CASES.

N the case of Sottomayer, otherwise De Barros v. De Barros, 36 L. T. Rep. (N. S.) 746, recently decided by the Probate, Divorce and Admiralty Division of the English High Court of Justice, two minors, who were first cousins and Portuguese subjects, and resident in England, went through the civil form of marriage at the registrar's office in London. The marriage was brought about through the earnest solicitations of the parents of them both, for the purpose of protecting some property in England. After the marriage they lived in separate rooms in the house jointly occupied by their parents, and the marriage was not consummated, the wife retaining her maiden name. By the law of Portugal, their marriage was illegal and void, first cousins being within the prohibited degrees of consanguinity. Some years after the marriage the wife brought this suit in the English court, praying for a decree of nullity, on the ground that her marriage was void by the law of Portugal. The husband not appearing, the court ordered the Queen's proctor to appear in the suit, and argue especially the following points of law: 1. Whether the parents' solicitation amounted to fraud upon the wife? 2. Whether the marriage, if good by English law, was binding upon the parties in England. 3. Whether the lex loci contractus or the lex domicilii should prevail in determining the validity of the marriage. The court held that the marriage was not obtained by fraud upon the wife; that lex loci contractus should prevail, and that, as by the law of England, the marriage was good and binding, the court was bound to uphold it. The decision was based particularly upon

the case of Simonin v. Mallack, 2 Sw. & Tr. 67, which was distinguished from Brook v. Brook, 9 H. of L. Cas. 193. The following cases also sustain the same doctrine: Dalrymple v. Dalrymple, 2 Hagg. Const. Rep. 54; Herbert v. Herbert, id. 263; Scrimshire v. Scrimshire, id. 395; Gordon v. Pye, Ferguson's Const. Rep. 361; Argent v.Argent, 4 Sw. & Tr. 53; Drevan v. Drevan, 34 L. J. Eq. 129; Yelverton v. Yelverton, 1 Sw. & Tr. 574; Reg. v. Wakefield, 2 Lew. 1. See, also, Midway v. Needham, 16 Mass. 160; Putnam v. Putnam, 8 Pick. 433; Stevenson v. Gray, 17 B. Monr. 193; Ponsford v. Johnson, 2 Blatchf. 51. See, however, as holding a different doctrine where parties go abroad for the purpose of evading domestie laws, touching the essence of marriage, Williams v. Oates, 7 Ired. 535; Dupre v. Boulard, 10 La. Ann. 411. See, also, Jopp v. Wood, 34 Beav. 88; Steele v. Braddell, Milw. Ired. Ecc. R. 16; Sussex Peerage Case, 11 Cl. & Finn. 85; Warrender v. Warrender, 2 id. 488; Fenton v. Livingstone, 3 Macq. Cas. H. of L. 497; Mette v. Mette, 1 Sw. & Tr. 416; Lister v. Smith, 3 id. 202; Hull v. Hull, 15 Jur. 710; Marshall v. Marshall, 4 T. & C. 449.

In the case of Hood, plaintiff in error, v. The State, recently decided by the Supreme Court of Indiana, the plaintiff was indicted for living in adultery and fornication with a woman named Jennie Chaney. The State proved that Hood was married to one Maggie Hunter, in 1869, and that this person was still living; that, in 1876, he was, in form, married to said Jennie Chaney, and had since lived with her as his wife. Hood set up in defense a Utah divorce from his first wife. This was proved to have been granted in pursuance of the laws of Utah, and it appeared that, at the time it was obtained and for years previously, Hood had not been within the Territory of Utah, and the defendant in the divorce suit was never within the said Territory. The court held that the Utah court did not have jurisdiction to grant the divorce, and that it was inoperative and void, and furnished no defense to the indictment against Hood. It held also, that the provision

in the statute of Utah which authorizes its courts to grant divorces to citizens of foreign States and nations who are not, but merely desire to become residents of Utah, is ultra vires and void. The decision is in harmony with numerous cases in which the question of the validity of divorces of the character of the one here pleaded has been raised. In People v. Darrell, 25 Mich. 247; 12 Am. Rep. 260, to an indictment for bigamy, defendant set up a divorce obtained by his first wife in Indiana. The record in the divorce case recited that the parties were residents of Indiana. The court held, that evidence was admissible to show that they were not, in fact, such residents, and that, if they were not, the divorce was void, and no defense to the indictment. See, also, Hoffman v. Hoffman, 46 N. Y. 30; 7 Am. Rep.

299; Edson v. Edson, 108 Mass. 590; 11 Am. Rep. 393; Adams v. Adams, 51 N. H. 388; 12 Am. Rep. 134. See, also, notes to cases, 7 Am. Rep. 304; 12 id. 274; Shannon v. Shannon, 4 Allen, 134; Smith v. Smith, 13 Gray, 209; Cox v. Cox, 19 Ohio St. 502; 2 Am. Rep. 415; Leith v. Leith, 39 N. H. 20; Commonwealth v. Blood, 97 Mass. 338; Colvin v. Reed, 5 P. F. Smith, 378; Borden v. Fitch, 15 Johns. 140; Sturgis v. Fay, 16 Ind. 429; Beard v. Beard, 21 id. 321.

The case of First National Bank of Carlisle v. Graham, 4 W. N. Cas. 205, decided on the 26th of June last, was an action against a national bank for the loss of bonds deposited with it for safe-keeping. At the time the bonds were left, the plaintiff below took a receipt signed by the cashier of the bank and reading as follows: "Miss Fannie L. Graham has left in this bank, for safe-keeping, four thousand dollars ($4,000.00) in U. S. 5-20 bonds of 1867, to be returned on return of this receipt." The bonds were placed in the bank safe and were subsequently stolen therefrom with other valuables. It was shown that some of the directors of the bank knew that the cashier was in the habit of receiving bonds for safe-keeping, and that after the loss the president and cashier told Miss Graham that she should lose nothing, that the loss would fall on the bank and that she should come and get her interest as usual. This interest was credited to her on the books of the bank and paid to her for about two years after the loss. It was argued, on the part of the defendant below, that the bank was not authorized under the law to take deposits for safe-keeping and was not, therefore, liable for their loss. The court however said, that "looking at the almost universal practice of banks of all kinds to accept special deposits of valuable securities from their customers, and the evidence in this case that such was the habit of this bank, with the privity and knowledge of the directors and officers, we are of opinion that a liability for safe-keeping is raised by the receipt given to the plaintiff in this case for her bonds. If the bonds be lost or stolen through the gross negligence of the bank, this liability becomes fixed." The doctrine here advanced seems to be in conflict with the reasoning in First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 283, 292; see, also, as not agreeing with the principal case, Giblen v. McMullen, L. R., 2 P. C. Cas. 327; Foster v. Essex Bank, 17 Mass. 479; Scott v. Nat. Bank of Chester, 72 Penn. St. 471; Lloyd v. West Branch Bank, 15 id. 172; Badger v. Bank of Cumberland, 26 Me. 428; Merchants' Bank v. State Bank, 10 Wall. 604; Bank of Genessee v. Patchin Bank, 13 N. Y. 309. And Judge Story also limits the authority of bank officers to bind the corporation to acts and contracts within the ordinary sphere of their duties and the scope of the ordinary business. Minor v. Mech. Bank of Alexandria, 1 Peters, 46, 70; Fleckner v. Bank of United States, 8 Wheat. 328; see, also, Fulton Bank v. N. Y. and S. Canal Co., 4 Paige, 127; Leach v. Hale, 31 Iowa, 69; 7 Am. Rep. 112.

CONTEMPT - COMMITMENT BY BODIES
OTHER THAN LEGISLATIVE
OR JUDICIAL.

IN the case of The People v. Learned, 5 Hun, 626, two justices of the Supreme Court held, overruling the opinion of the other at Special Term, that a commitment for contempt, by the Canal Investigating Commission, was legal.

The case was taken to the Court of Appeals, where, to the surprise of every one, the successful counsel asked the court not to review it, and stipulated not to enforce the determination against either the person or the property of Dennison, the party committed for contempt.

The Court of Appeals held, in substance, that if the successful party waived all rights and claims under the determination appealed from, it would not sit to hear the case merely to determine an abstract question of law of no consequence, so far as the case in hand was concerned, to either party. The principle has recently been under consideration by the Supreme Court of Massachusetts. That court has arrived at a contrary result. In Whitcomb's Case, 120 Mass. 118, the legislature of Massachusetts, by bill, instead of by resolution, had authorized the common council of the city of Boston to imprison contumacious witnesses for contempt. On an investigation as to the receipt of moneys by members of the common council, Whitcomb refused to answer and was committed by that body for contempt. Upon habeas corpus, the Supreme Court discharged him, holding the act to be unconstitutional. The court approving the language of the Supreme Court of the United States, in Anderson v. Dunn, 6 Wheat. 204, 233, said: "Neither analogy nor precedent would support the assertion of such powers in any other than a legislative or judicial body;" and proceeds, "To such a subject the words of Lord Coke apply with peculiar force: When authority and precedent is wanting, there is need of great consideration before that any thing of novelty shall be established, and to provide that this be not against the law of the land.' The city council is not a legislature. It has no power to make laws, but merely to pass ordinances upon such local matters as the legislature may commit to its charge, and subject to the paramount control of the legislature. Neither branch of the city council is a court, or in accurate use of language, vested with any judicial functions whatever. Nor are its members chosen with any view to their fitness for the exercise of such functions. To allow such a body to punish summarily by imprisonment the refusal to answer any inquiry which the whole body, or one of its committees, may choose to make, would be a most dangerous invasion of the rights and liberties of the citizen. The legislature may also provide for the punishment, upon indictment and

* * *

* * *

trial in the courts of justice, of any person who, being duly summoned, refuses to appear and testify before any board or tribunal upon any matter which it is authorized by law to investigate or decide. But the legislature cannot delegate to or confer upon municipal boards or officers that are not courts of justice, and whose proceedings are not an exercise of judicial power, the authority to imprison and punish, without right of appeal, or trial by jury. The result is, that so much of the statute of 1863, chap. 158, as undertakes to confer such authority upon either branch of a city council, or upon the selectmen of a town, is inoperative and void, because it is a violation of the constitution of the commonwealth and contrary to the law of the land. Prisoner discharged."

The Canal Investigating Commission of New York was not a court of justice in any sense. It had no power to make any decision or determination binding upon the State or any of its citizens, or to decide any issue between them. It is difficult to see why the principle determined by the Massachusetts

court is not in direct conflict with the decision of that of New York.

HOMESTEAD EXEMPTIONS-CONSTRUCTION - LEGISLATIVE INTENT - FRAUD IN RELATION TO THE DEALINGS WITH THE HOMESTEAD.

PRIOR to 1850 this now important branch of the law

was but little known, having no place in the digest or reports until about that time. Since then many decisions have been made bearing upon the varied questions which have arisen, and in view of the distressed condition of the finances of the country, this branch of the law will receive in the future far greater attention than even heretofore, both from the profession and the bench.

The homestead is in substance an estate tail; first, to the survivors, husband or wife; and second, to the issue of either, and is in derogation of the common law.

The removal of the burden imposed upon the debtor by the common law is the object of these homestead statutes, the mischief to be remedied.

Chief Justice Dixon in Phelps v. Rooney, 12 Wis. 698, says: "By the common law, an indigent debtor could be compelled, in satisfaction of his debts, to part, not only with the necessary comforts, but with the most meagre means of the support of life. This rigorous and unrelenting system for enforcing obligations was felt to be a great social and political evil. Beside the

misery and suffering which it brought upon the debtor and his family, it was often injurious to society at large, by rendering them not only useless, but sometimes burdensome members of it. This was the mischief which had been the subject of complaint, and which the legislature, by the section of the statute under consideration, designed in part to remedy; it was the disease of the body politic which they resolved to cure." "But while a rigid and exact compliance with contracts and obligations was esteemed a matter of general public good, to enforce which it behooved the State to furnish its citizens with adequate means

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and facilities, still, in view of the unfortunate condition of many debtors, and the social and political evils which it engendered, it was considered better for society at large to withdraw from creditors so much of that coercive power which had theretofore remained in their hands, as was requisite to enable debtors, if they chose, by retaining those necessary comforts to ameliorate their condition and relieve the public of an unwelcome burden."

While this distinguished jurist makes these observations as a basis of his dissenting opinion in the case, it will no less be recognized as a perspicuous and accurate statement of the law, and the objects to be attained in the enactment of these statutes. Such being the humane objects had in view, how are statutes granting the exemption to be construed?

CONSTRUCTION.

There has undoubtedly been great conflict of opinion as to the construction to be given to this and kindred statutes, i. e., those affecting married women in their separate property. Some courts holding to a strict construction, Perkins v. Perkins, 62 Barb. 531; Rue v. Alter, 5 Denio, 119, others regarding them as highly remedial, following the spirit rather than the letter, De Voies v. Conklin, 22 Mich. 255. The former class, says Sedgwick, "seem to regard the common law as recognizing the constitution, rather than the constitution the common law."

The better view is, that these statutes should receive a liberal construction. Judge Dillon, 1 Am. Law Reg. (N. S.) 647, and cases there cited; Banker v. Collins, 4 Neb. 494; Cox v. Wilder, 2 Dillon's C. C. 49; Charles et al. v. Lamberson, 1 Clark (Ia.), 441; White v. Carpenter, 2 Paige, 229; Deer v. Chapman, 25 Ill. 610.

LEGISLATIVE INTENT.

I propose to put a case, in relation to which it may be fair to say there is a chance for argument. Suppose the legislature has exempted from forced sale one lot in an incorporated town or city, together with all the improvements; and these lots generally, at the time of the passage of the law, being of a particular size-say fifty by one hundred feet-none larger. Did the legislature intend to limit the lot thus exempted to the particular size mentioned? Was the intention to exempt any sized lot, no matter how large, if in the addition thereafter attached and the plat recorded, it was called a lot, and so treated for the general purpose of the city government? Suppose, after the passage of such a homestead law, suburban property, then within the corporate limits, but not subdivided, should afterward be laid off into lots and blocks the lots containing five acres-recorded, and in all respects forming part of the city proper at the time of the question of exemption occurring, is such a lot within the purview of the statute referred to? Was it the intention that, for all time to come, no lot greater in size than those forming part of the city at the time of the passage of the law should be exempt? Was it not, rather, the intention, that in view of the greater value of land, within the more thickly settled portions of the city, the suburban property ownerhis land being of less value per acre, or foot - would eventually, as the growing demands of the city required, lay off and plot his land into lots having a greater area, and when so done, and becoming a part of the city by addition, the lots, whatever the size, came within, not only the letter, but the spirit of the aw? Suppose that the act which exempted the one

lot within the city also exempted ten acres of this suburban property if not laid off in lots and blocks, is not the intention of the legislature then very clear, and the outside lot, no matter what its size, if within the ten acre limit, comes strictly within the purview of the act? The objects to be attained- and we have seen what they are and what was said by the lawmakers-are, especially in this class of cases, to be taken as our guide in solving the question of intent. In the passage of such a law, how many members of the law-making body, who voted for its passage, had in view the questions put? Even if it could be ascertained just how their minds revolved the question which would ultimately arise in the due administration of such a law, would it be a satisfactory mode of arriving at the intention? How futile such an attempt would be I need not stop to discuss. There is but one mode, one safe rule, and that is: "The legislative intent must be taken as expressed by the words which the legislature has used, all attempts by any kind of evidence to get at a legislative meaning different from that embodied in the words of the enactment would, from the nature of things, prove illusory and vain." Sedgwick's Stat. Con. 338.

In Supervisors, etc., v. The People, 7 Hill, 511, Senator Porter uses this language: "I hold that in respect to the intention of the legislature, where the language of the act is explicit, the courts are bound to seek for it in the words of the act, and are not at liberty to suppose that they intended any thing different from what their language imports." Authorities might be multiplied upon this question, but it would seem too obvious to need further attention, and that in the case put, the entire lot, without regard to its size or value, would be exempt. The rules of interpretation as resolved by the Barons of the Exchequer are especially applicable as the guide in the case under consideration: 1. "What was the common law before the making of the act?" 2. "What was the mischief and defect for which the common law did not provide?" 3. "What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth?" The true reason of the remedy."

4.

In Iowa, Finley v. Deitrick, 12 Iowa, 516, a somewhat analogous question was determined. In 1853 the legislature extended the limits of Dubuque, so as to take in a tract of six acres, owned by the judgment debtor. In April, 1857, the debtor moved upon the premises and occupied the whole tract as his homestead. The homestead law, passed prior to the act of extension, limited the exemption to one-half acre if within town plot. In July, 1857, the debt was contracted upon which judgment was obtained, and it was sought to subject this property to the payment of the debt. The court held that the entire tract was exempt from judicial sale, the same never having been subdivided into smaller parcels, and not being within the town plat as contemplated by the statute. The late decision by Cooley, J., Barber v. Rooraback, 15 Alb. Law Jour. 497, sustains this view.

Fraud in relation to the dealings with the homestead. -If it be conveyed in fraud of creditors, does that fact destroy the homestead right of the debtor? It is a familiar doctrine, that when a debtor conveys property, subject to sale, with intent to defraud creditors, that equity will treat the conveyance void, and deal with the property as though it remained in the debtor. But how is it, if property, not subject to sale on judicial process, be conveyed in alleged fraud of creditors?