« AnteriorContinuar »
ALL communications intended for publication in the and deprecates the personalities in which the Lord LAW JOURNAL should be addressed to the editor, and the Justice indulges, it must admit that there is one name of the writer should be given, though not necessa
grave charge which he makes, which, “if well rily for publication.
Communications on business matters should be ad founded and incapable of explanation, would go dressed to the publishers.
far to justify the severest strictures." The Albany Law Journal.
We have no interest in the quarrel, but the re
marks of the Lord Justice have probably much truth, ALBANY, AUGUST 11, 1877.
and confirm us in a belief which we have often ex
pressed, namely: that the “council of law reportCURRENT TOPICS.
ing” has not proved to be a success, even in England. COMPLAINTS have been made, from time to time,
What was promised by the originators of this plan, U in many parts of this country, of the manner
as we have understood them, was this: That the in which official reporters do their work. The pro
work of reporting would be well, thoroughly and fession have oftentimes, with good reason, blamed
promptly done, so that there would be no chance or these gentlemen for a lack of promptness in issu
reason for unofficial volumes. There are now in ing their volumes, or because they published too
existence, however, three or more series of outside much useless matter, or because cases were care
reports, one of which is, in our judgment, much lessly prepared, but there has, except in one or two
better done in every way than is the official one, as instances, never been a claim made that the decisions
it certainly is more promptly done. In Ireland, the given were erroneously reported. And in all our
Irish Law Times has published reported decisions, criticisms we have, with a remarkable unanimity,
under the name of the Irish Law Times Reports, and pointed to the experiments which have been made
this publication, so far as value in this country is in Great Britain, as a sure means of getting rid of
concerned, is much better than the regular official such evils as we labor under from improper
reports, though we would not go as far as the Lord official or unofficial reporting. It seems, however,
Justice did and say that these latter reports are "a that the “council of law reporting" has not, in
parcel of trash, a wanton waste of ink, paper and Ireland, at least, done away with all that is to be
printing.” condemned in law reports, and if it has proved a cure for what was wrong before, it has introduced Our own country is not the only one blessed, or other evils of as bad or even a worse character than otherwise, with lady lawyers. In both the English any we endure. For this statement we have and Scotch courts has the voice of the female the authority of the Lord Justice of Appeal, who advocate been heard. In England, Mrs. Besant contook the pains to give the Irish Reports a broadside, ducted her defense in a notorious case in which she in delivering judgment on the 17th ult., in the case and Mr. Bradlaugh were defendants. She did what of Mackey v. Scottish Widows' Fund & L. Assur. Co. | she undertook in so masterly a manner, that the He said: “The last place in the world from which I Lord Chief Justice complimented her on it, and the would advise counsel to think of procuring a correct London Echo states that those who were present at report, is in the pages of the present Irish Reports. I the trial said that it was the most remarkable distake this opportunity of informing the members of play of feminine ability ever heard. In Scotland, a the practicing bar that I shall regard it a favor if lady by the name of Betsy Mustard undertook to they throw wholly aside any thing which, at any prosecute her own case, but not with equal credit to time hereafter, shall be attributed to me in that bad herself. She presented in court some kind of petipublication. Any thing which, at any time hereafter, | tion in respect to her litigation, but when it came or which since the last May number has been or up for hearing she was not present, and it was shall be attributed to me in that publication, whether passed over. Some days afterward she appeared in in this case or in any other, I now, by anticipation, the court, dressed in a showy costume, and carrying a disown and repudiate as spurious and unauthorized." huge roll of paper, and, in a loud voice, questioned The Lord Justice sets forth at length, and with the Lord President as to her petition, and upon his examples, his reasons for this language, which are in informing her that there was no such case before substance that, in the publication named, the state the court, informed him that he was mistaken, and ments of decisions are not accurate; that the selec- the clerk knew all about it. She was then told that tion of cases is bad, and the head-notes are not well she must sit down, or she would be turned out of made. The London Times Dublin correspondent the court. She then exclaimed that if the Court of says that the “council of law reporting” has held a Sessions, the Lord Advocate and the Solicitor. special meeting to consider the observations made General allowed a person to be defrauded out of by the Lord Justice, and resolved to publish a state- her money, as she had been, the sooner they were ment in reply, etc. The Irish Law Times says, of done away with the better, and that was all she had the quarrel, that while it sides with the Irish Reports,' to say about it, and she forthwith shook the dust
VOL. 16.-- No. 6.
of the Court of Sessions from off her feet. Whether 1st, so far as it may be necessary to supply what the different treatment received by the two lady ad may be wanting to make the law governing practice vocates was due to extrinsic causes or to the differ- in our various courts complete. The portions of the ence between the procedure prevailing in the two present code unrepealed are given in the edition of countries, we are not informed, but we believe the the new code edited by Mr. Throop, but the other event in each case was the same, namely, the female editions, heretofore issued, make no mention of the litigant did not succeed. We think, as a rule, fact that such portions have not been abrogated. The the ladies will not benefit their own interests by unrepealed sections are as follows: Sections 1 to 8, 30 coming into court as advocates of either their own (subd. 2, 10 and 11), 52 to 71, 111, 112, 118, 132, 136, causes or the causes of others. While a woman 166, 167, 206 to 217, 224, 243, 244, 261, 277, 284, 292 only now and then appears in court, such perform to 309, 311 to 322, 351 to 371, 375 to 381, 427, 469, 471 ances will be applauded, but when it becomes an
to 473. Section 256 has, in part, been abrogated by every day affair, if it ever does become so, the sex Laws of 1877, ch. 417, but very many of its importwill find the same difficulty in obtaining employ- ant provisions remain. The error into which the ment and the same discrimination as to remunera profession has fallen has naturally resulted from the tion as exists in respect to other kinds of business, perusal of the various irregular editions of the new which have always been open to male and female code, circulated in every part of the State immealike.
diately after the adjournment of the legislature, and
which purported to contain the entire statute law Certain articles have recently appeared in the New
intended to regulate practice after the 1st of SepYork Nation, animadverting upon some decisions
tember next. Those who have consulted only the made by Judge Dillon, of the United States
edition prepared under the supervision of the comCircuit Court, in a railroad case, and acts done by
missioners have not fallen into this error. 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
NOTES OF CASES. published in the St. Louis Republican, the charges I n the case of Sottomayer, otherwise De Barros v. made in the Nation are fully met and refuted. This ! De Barros, 36 L. T. Rep. (N. 8.) 746, recently was a proper thing for the Judge to do, but it was decided by the Probate, Divorce and Admiralty not needed to vindicate him before either the public Division of the English High Court of Justice, two or the profession. His reputation as an impartial | minors, who were first cousins and Portuguese suband capable judge is too well established to sufferjects, and resident in England, went through the any thing from malicious charges, even when appear civil form of marriage at the registrar's office in ing in and sanctioned by a newspaper of high London. The marriage was brought about through literary standing. The Central Law Journal sug the earnest solicitations of the parents of them both, gests that, under a proper press law, a person mak for the purpose of protecting some property in ing such attacks as this one would find himself England. After the marriage they lived in separate behind the bars of a prison. We think, however, rooms in the house jointly occupied by their parents, that a stringent press law is not needed for the pro- and the marriage was not consummated, the wife tection of an upright judiciary. Slanderous charges retaining her maiden name. By the law of Portuagainst a well-known judge do comparatively little gal, their marriage was illegal and void, first cousins injury, as the public usually attribute them to their being within the prohibited degrees of consanguintrue source, namely, anger and disappointment on ity. Some years after the marriage the wife brought the part of defeated litigants, and do not believe this suit in the English court, praying for a decree them at all. Now and then a specific charge may, of nullity, on the ground that her marriage was unless explained, raise a momentary doubt, but an void by the law of Portugal. The husband not apexplanation as full and satisfactory as that made by pearing, the court ordered the Queen's proctor to Judge Dillon, clears away every shadow of sus appear in the suit, and argue especially the followpicion that even those who are anxious to believe ing points of law: 1. Whether the parents' solicitathe statements of his maligners may have cherished. tion amounted to fraud upon the wife? 2. Whether
the marriage, if good by English law, was binding Many of the profession have the impression that, upon the parties in England. 3. Whether the lex with the incoming of the new Code of Procedure, loci contractus or the lex domicilii should prevail in the entire code now in force is repealed, and that determining the validity of the marriage. The court in those respects wherein the new code is defective, held that the marriage was not obtained by fraud we shall be without any rule to govern us. This upon the wife; that lex loci contractus should prevail, impression is erroneous, for a considerable portion and that, as by the law of England, the marriage of the present code is not expressly repealed, and, was good and binding, the court was bound to upconsequently, will remain in force after September I hold it. The decision was based particularly upon
the case of Simonin v. Mallack, 2 Sw. & Tr. 67, 299; Edson v. Edson, 108 Mass. 590; 11 Am. Rep. which was distinguished from Brook v. Brook, 9 H. | 393; Adams v. Adams, 51 N. H. 388; 12 Am. Rep. of L. Cas. 193. The following cases also sustain the 134. See, also, notes to cases, 7 Am. Rep. 304; 12 same doctrine: Dalrymple v. Dalrymple, 2 Hagg. id. 274; Shannon v. Shannon, 4 Allen, 134; Smith Const. Rep. 54; Herbert v. Herbert, id. 263; Scrim v. Smith, 13 Gray, 209; Cox v. Cox, 19 Ohio St. 502; shire v. Scrimshire, id. 395; Gordon v. Pye, Fergu- 2 Am. Rep. 415; Leith v. Leith, 39 N. H. 20; Comson's Const. Rep. 361; Argent v. Argent, 4 Sw. & Tr. monwealth v. Blood, 97 Mass. 338; Colvin v. Reed, 5 53; Dreoan v. Drevan, 34 L. J. Eq. 129; Yelverton v. P. F. Smith, 378; Borden v. Fitch, 15 Johns. 140;
Yeverton, 1 Sw. & Tr. 574; Reg. v. Wakefield, 2 Sturgis v. Fay, 16 Ind. 429; Beard v. Beard, 21 id.
The case of First National Bank of Carlisle v. 17 B. Monr. 193; Ponsford v. Johnson, 2 Blatchf. 51.
Graham, 4 W. N. Cas. 205, decided on the 26th of See, however, as holding a different doctrine where
June last, was an action against a national bank for parties go abroad for the purpose of evading domes
the loss of bonds deposited with it for safe-keeping. tic laws, touching the essence of marriage, Williams
At the time the bonds were left, the plaintiff below v. Oates, 7 Ired. 535; Dupre v. Boulard, 10 La. Ann.
took a receipt signed by the cashier of the bank and 411. See, also, Jopp v. Wood, 34 Beav, 88; Steele v.
reading as follows: “Miss Fannie L. Grabam has Brodiell, Milw. Ired. Ecc. R. 16; Sussex Peerage Case,
left in this bank, for safe-keeping, four thousand 11 Cl. & Finn. 85; Warrender v. Warrender, 2 id.
dollars ($4,000,00) in U. S. 5-20 bonds of 1867, to 488; Fenton v. Livingstone, 3 Macq. Cas. H. of L.
be returned on return of this receipt.” The bonds 497; Mette v. Mette, 1 Sw. & Tr. 416; Lister v. Smith,
were placed in the bank safe and were subsequently 3 id. 202; Hull v. Hull, 15 Jur. 710; Marshall v. Mar
stolen therefrom with other valuables. It was shall, 4 T. & C. 449.
shown that some of the directors of the bank knew In the case of Llood, plaintiff in error, v. The State,
| that the cashier was in the habit of receiving recently decided by the Supreme Court of Indiana,
bonds for safe-keeping, and that after the loss the the plaintiff was indicted for living in adultery and
president and cashier told Miss Graham that she fornication with a woman named Jennie Chaney.
should lose nothing, that the loss would fall on the The State proved that Hood was married to one
bank and that she should come and get her interest Maggie Hunter, in 1869, and that this person was
as usual. This interest was credited to her on the still living; that, in 1876, he was, in form, married
books of the bank and paid to her for about two to said Jennie Chaney, and had since lived with her
years after the loss. It was argued, on the part of as his wife. Hood set up in defense a Utah divorce
the defendant below, that the bank was not authorfrom his first wife. This was proved to have been
ized under the law to take deposits for safe-keeping granted in pursuance of the laws of Utah, and it
and was not, therefore, liable for their loss. The appeared that, at the time it was obtained and for
| court however said, that “looking at the almost years previously, Hood had not been within the
universal practice of banks of all kinds to accept Territory of Utah, and the defendant in the divorce special deposits of valuable securities from their suit was never within the said Territory. The court
customers, and the evidence in this case that such held that the Utah court did not have jurisdiction
was the habit of this bank, with the privity and to grant the divorce, and that it was inoperative
knowledge of the directors and officers, we are of and void, and furnished no defense to the indict
opinion that a liability for safe-keeping is raised by ment against Hood. It held also, that the provision
the receipt given to the plaintiff in this case for her in the statute of Utah which authorizes its courts to
bonds. If the bonds be lost or stolen through the
gross negligence of the bank, this liability becomes grant divorces to citizens of foreign States and na
fixed.” The doctrine here advanced seems to be in tions who are not, but merely desire to become resi conflict with the reasoning in First Nat. Bank v. dents of Utah, is ultra vires and void. The decision Ocean Nat. Bank, 60 N. Y. 283, 292; see, also, as is in harmony with numerous cases in which the
not agreeing with the principal case, Giblen v. Mo
Mullen, L. R., 2 P. C. Cas. 327; Foster v. Essex Bank, question of the validity of divorces of the character
17 Mass. 479; Scott v.Nat. Bank of Chester, 72 Penn. of the one here pleaded has been raised. In People St. 471; Lloyd v. West Branch Bank, 15 id, 172; v. Dawell, 25 Mich. 247; 12 Am. Rep. 260, to an in- Badger v. Bank of Cumberland, 26 Me. 428; Merdictment for bigamy, defendant set up a divorce
chants’ Bank v. State Bank, 10 Wall. 604; Bank of
Genesscev. Patchin Bank, 13 N. Y. 309. And obtained by his first wife in Indiana. The record in
Judge Story also limits the authority of bank the divorce case recited that the parties were resi officers to bind the corporation to acts and contracts dents of Indiana. The court held, that evidence within the ordinary sphere of their duties and the was admissible to show that they were not, in fact,
scope of the ordinary business. Minor V. Mech. such residents, and that, if they were not, the divorce
Bank of Alexandria, i Peters, 46, 70; Fleckner v.
Bank of United States, 8 Wheat. 328; see, also, was void, and no defense to the indictment. See, Fulton Bank v. N. Y. and S. Canal Co., 4 Paige, also, Hoffman v. Hoffman, 46 N. Y. 30; 7 Am. Rep. I 127; Leach v. Hale, 31 Iowa, 69; 7 Am. Rep. 112.
CONTEMPT - COMMITMENT BY BODIES
trial in the courts of justice, of any person who, OTHER THAN LEGISLATIVE
being duly summoned, refuses to appear and testify
before any board or tribunal upon any matter which OR JUDICIAL.
it is authorized by law to investigate or decide. IN the case of The People v. Learned, 5 Hun, 626,
But the legislature cannot delegate to or confer two justices of the Supreme Court held, over upon municipal boards or officers that are not courts ruling the opinion of the other at Special Term, that
of justice, and whose proceedings are not an exercise a commitment for contempt, by the Canal Investi
of judicial power, the authority to imprison and gating Commission, was legal.
punish, without right of appeal, or trial by jury. The case was taken to the Court of Appeals, where,
The result is, that so much of the statute of 1863, to the surprise of every one, the successful counsel
chap. 158, as undertakes to confer such authority asked the court not to review it, and stipulated not
upon either branch of a city council, or upon the to enforce the determination against either the per
selectmen of a town, is inoperative and void, beson or the property of Dennison, the party commit- | cause it is a violation of the constitution of the comted for contempt.
monwealth and contrary to the law of the land. The Court of Appeals held, in substance, that if
Prisoner discharged.” the successful party waived all rights and claims | The Canal Investigating Commission of New under the determination appealed from, it would
termination appealed from, it would York was not a court of justice in any sense. It had not sit to hear the case merely to determine an
no power to make any decision or determination abstract question of law of no consequence, so far
binding upon the State or any of its citizens, or to as the case in hand was concerned, to either party. I decide any issue between them. It is difficult to see The principle has recently been under considera
why the principle determined by the Massachusetts tion by the Supreme Court of Massachusetts. That court is not in direct conflict with the decision of court has arrived at a contrary result. In Whit
that of New York. comb's Case, 120 Mass. 118, the legislature of Massachusetts, by bill, instead of by resolution, had HOMESTEAD EXEMPTIONS - CONSTRUCTION authorized the common council of the city of Boston - LEGISLATIVE INTENT – FRAUD IN RELAto imprison contumacious witnesses for contempt. TION TO THE DEALINGS WITH THE HOMEOn an investigation as to the receipt of moneys by
STEAD. members of the common council, Whitcomb refused DRIOR to 1850 this now important branch of the law to answer and was committed by that body for con I was but little known, having no place in the digest tempt. Upon habeas corpus, the Supreme Court dis
or reports until about that time. Since then many
decisions have been made bearing upon the varied charged him, holding the act to be unconstitutional.
questions which have arisen, and in view of the disThe court approving the language of the Supreme
tressed condition of the finances of the country, this Court of the United States, in Anderson v. Dunn, 6 branch of the law will receive in the future far greater Wheat. 204, 233, said: “Neither analogy nor pre attention than even heretofore, both from the profescedent would support the assertion of such powers
sion and the bench. in any other than a legislative or judicial body;" and
The homestead is in substance an estate tail; first, to
the survivors, husband or wife; and second, to the proceeds, “To such a subject the words of Lord
issue of either, and is in derogation of the common Coke apply with peculiar force: When authority and precedent is wanting, there is need of great 1 The removal of the burden imposed upon the debtor consideration before that any thing of novelty shall by the common law is the object of these homestead be established, and to provide that this be not statutes, the mischief to be remedied. against the law of the land.' * * * The city
Chief Justice Dixon in Phelps v. Rooney, 12 Wis. 698,
says: “By the common law, an indigent debtor could be council is not a legislature. It has no power to
compelled, in satisfaction of his debts, to part, not make laws, but merely to pass ordinances upon such
only with the necessary comforts, but with the most local matters as the legislature may commit to its meagre means of the support of life. This rigorous charge, and subject to the paramount control of the and unrelenting system for enforcing obligations was legislature. Neither branch of the city council is a
felt to be a great social and political evil. Beside the court, or in accurate use of language, vested with
misery and suffering which it brought upon the debtor
and his family, it was often injurious to society at any judicial functions whatever. Nor are its mem
large, by rendering them not only useless, but somebers chosen with any view to their fitness for the
times burdensome members of it. This was the misexercise of such functions. To allow such a body to chief which had been the subject of complaint, and punish summarily by imprisonment the refusal to which the legislature, by the section of the statute unanswer any inquiry which the whole body, or one
der consideration, designed in part to remedy; it was
the disease of the body politio which they resolved to of its committees, may choose to make, would be a
cure.” * * “But while a rigid and exact compliance most dangerous invasion of the rights and liberties
with contracts and obligations was esteemed a matter of the citizen. * * * The legislature may also
of general publio good, to enforce which it behooved provide for the punishment, upon indictment and 'the State to furnish its citizens with adequate means and facilities, still, in view of the unfortunate condi- lot within the city also exempted ten acres of this tion of many debtors, and the social and political suburban property if not laid off in lots and blocks, is evils which it engendered, it was considered better for not the intention of the legislature then very clear, society at large to withdraw from creditors so much and the outside lot, no matter what its size, if within of that coercive power which had theretofore re the ten acre limit, comes strictly within the purview of mained in their hands, as was requisite to enable the act? The objects to be attained - and we have debtors, if they chose, by retaining those necessary seen what they are and what was said by the lawcomforts to ameliorate their condition and relieve the makers - are, especially in this class of cases, to be public of an unwelcome burden."
taken as our guide in solving the question of intent. While this distinguished jurist makes these observa In the passage of such a law, how many members of tions as a basis of his dissenting opinion in the case, the law-making body, who voted for its passage, had it will no less be recognized as a perspiouous and accu in view the questions put? Even if it could be ascerrate statement of the law, and the objects to be at taived just how their minds revolved the question tained in the enactment of these statutes. Such be which would ultimately arise in the due administraing the humane objects had in view, how are statutes tion of such a law, would it be a satisfactory mode of granting the exemption to be construed ?
arriving at the intention? How futile such an atCONSTRUCTION.
tempt would be I need not stop to discuss. There is There has undoubtedly been great conflict of opin
but one mode, one safe rule, and that is: “The legislaion as to the construction to be given to this and
tive intent must be taken as expressed by the words
which the legislature has used, all attempts by any kind kindred statutes, i. e., those affecting married women
of evidence to get at a legislative meaning different in tbeir separate property. Some courts holding to a
from that embodied in the words of the enactment strict construction, Perkins v. Perkins, 62 Barb. 531;
would, from the nature of things, prove illusory and Rue v. Alter, 5 Denio, 119, others regarding them as
vain." Sedgwick's Stat. Con. 338. highly remedial, following the spirit rather than the letter, De Voies v. Conklin, 22 Mich. 255. The former
In Supervisors, etc., v. T'he People, 7 Hill, 511, Sena
tor Porter uses this language: “I hold that in respect class, says Sedgwick,“ seem to regard the common law as recognizing the constitution, rather than the con
to the intention of the legislature, where the language stitution the common law."
of the act is explicit, the courts are bound to seek for The better view is, that these statutes should receive
it in the words of the act, and are not at liberty to supa liberal construction. Judge Dillon, 1 Am. Law Reg.
pose that they intended any thing different from what (N. S.) 647, and cases there cited; Banker v. Collins,
their language imports." Authorities might be mul4 Neb. 494; Cox y. Wilder, 2 Dillon's C. C. 49; Charles
tiplied upon this question, but it would seem too obet al. v. Lamberson, 1 Clark (Ia.), 441; White v. Car
vious to need further attention, and that in the case penter, 2 Paige, 229; Deer v. Chapman, 25 Ill. 610.
put, the entire lot, without regard to its size or value,
would be exempt. The rules of interpretation as reLEGISLATIVE INTENT.
solved by the Barons of the Exchequer are especially I propose to put a case, in relation to which it may applicable as the guide in the case under considerabe fair to say there is a chance for argument. Sup tion: 1. “What was the common law before the makpose the legislature has exempted from forced sale one ing of the act?" 2. “What was the mischief and delot in an incorporated town or city, together with all fect for which the common law did not provide ?” the improvements; and these lots generally, at the 3. “What remedy the Parliament hath resolved and time of the passage of the law, being of a particular appointed to cure the disease of the Commonwealth ?” size – say fifty by one hundred feet- none larger. 4. "The true reason of the remedy." Did the legislature intend to limit the lot thus ex. 1 In Iowa, Finley v. Deitrick, 12 Iowa, 516, a someempted to the particular size mentioned ? Was the what analogous question was determined. In 1853 the intention to exempt any sized lot, no matter how large, legislature extended the limits of Dubuque, so as to if in the addition thereafter attached and the plat re take in a tract of six acres, owned by the judgment corded, it was called a lot, and so treated for the gen debtor. In April, 1857, the debtor moved upon the eral purpose of the city government? Suppose, after premises and occupied the whole tract as his homethe passage of such a homestead law, suburban prop stead. The homestead law, passed prior to the act of erty, then within the corporate limits, but not subdi extension, limited the exemption to one-half acre if vided, should afterward be laid off into lots and within town plot. In July, 1857, the debt was conblocks—the lots containing five acres - recorded, and tracted upon which judgment was obtained, and it in all respects forming part of the city proper at the was sought to subject this property to the payment of time of the question of exemption occurring, is such the debt. The court held that the entire tract was a lot within the purview of the statute referred to? | exempt from judicial sale, the same never having been Was it the intention that, for all time to come, no lot subdivided into smaller parcels, and not being within greater in size than those forming part of the city at the town plat as contemplated by the statute. The the time of the passage of the law should be exempt? late decision by Cooley, J., Barber v. Rooraback, 15 Alb. Was it not, rather, the intention, that in view of the Law Jour. 497, sustains this view. greater value of land, within the more thickly settled Fraud in relation to the dealings with the homestead. portions of the city, the suburban property owner -If it be conveyed in fraud of creditors, does that his land being of less value per acre, or foot--would fact destroy the homestead right of the debtor? It is eventually, as the growing demands of the city re- a familiar doctrine, that when a debtor conveys propquired, lay off and plot his land into lots having a lerty, subject to sale, with intent to defraud creditors, greater area, and when so done, and becoming a part that equity will treat the conveyance void, and deal of the city by addition, the lots, whatever the size, with the property as though it remained in the debtor. came within, not only the letter, but the spirit of the But how is it, if property, not subject to sale on judiaw? Suppose that the act which exempted the one 'cial process, be conveyed in alleged fraud of creditors ?