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period which would bar an action at law for the property is, except under special circumstances, such laches as to disentitle him to the aid of a court of equity. Ib. TAXATION.

Of claim to government lands: lands not designated. Plaintiff in error was entitled to eleven leagues of government land in Colorado, but such land was not separated from the body of government land, nor could it be until a survey which was provided for should be made, when the boundaries would be fixed and the specified tract of land designated. The statute, under which plaintiff claimed, provided that the commissioner of the land office should make the surveys, but "before the confirmation provided for by this act shall become legally effective" the plaintiff should pay the expense of the surveys, etc. Held, that until plaintiff paid such expense, etc., the plaintiff had no title or perfect equitable right to title to any lands, and the same could not be taxed under the laws of Colorado. Railway Co. v. Prescott, 16 Wall. 603; Union Pacific R. R. Co. v. McShane, 22 id. 444. Judgment of Supreme Court of Colorado reversed. Cent. Colorado Improv. Co., plaintiff in error, v. County Commissioners of Pueblo. Opinion by Miller, J.

RECENT BANKRUPTCY DECISIONS.

DISCHARGE.

1. Not impeachable collaterally for fraud.-A discharge cannot be impeached collaterally for fraud in preventing notice to creditors of the pendency of the proceedings, nor on the ground that the bankrupt, before the proceedings in bankruptcy were commenced, fraudulently removed his property out of the jurisdiction of the court in which an action against him was pending, with intent to defraud his creditors. Sup. Ct. Commission, Ohio. Howland v. Carson, 16 Nat. Bankr. Reg. 372.

2. Judgment a provable debt, whether for tort or contract.-A judgment against the bankrupt, existing at the time his petition is filed, whether founded upon contract or tort, is a provable debt. Ib.

3. When court will look back of judgment: discharge will not bar judgment founded on fraud.—Where it is claimed that the collection of a judgment is not barred by a discharge in bankruptcy ou the ground that such judgment is a debt created by fraud, the court will look back of the judgment, and if it had its root and origin in fraud, the discharge will not bar it. Ib.

4. Judgment for seduction not a debt created by fraud. | -A judgment recovered by a father for the seduction of his daughter, where there was no promise of marriage, and no arts or devices were practiced to accomplish such seduction, is not a debt created by fraud within the meaning of the bankrupt act. Ib.

EXEMPTION.

estate in joint tenancy. While such an estate exists neither husband nor wife has any interest which can be sold on execution, or will pass to the assignee of either. U. S. Dist. Ct., Indiana. In re Benson, 16 Nat. Bankr. Reg. 377.

2. Effect of divorce as to real estate owned in common. -If the effect of a divorce, procured subsequent to an

adjudication in bankruptcy, is to destroy the unity of possession and turn the estate into a tenancy in common, it is simply the creation, by operation of law, of a new interest in the bankrupt, and is, to all intents and purposes, a new acquisition which the assignee cannot claim. Ib.

MORTGAGE.

Deed of trust to secure debt: trust: personal one will not pass to trustee's assignee in bankruptcy. - Where a deed of trust, given to secure a debt, contains a provision that, on the failure of the trustee to act, the cestuis que trust may appoint a new one in his stead, the power thereby conveyed is a personal trust or confidence in the cestuis que trust, and will not pass to their assignees in bankruptcy. Sup. Ct., Mississippi. Clark v. Wilson, 16 Nat. Bankr. Reg. 356.

PARTNERSHIP.

Two firms composed of same partners: insolvency of one firm: drafts by one firm on the other. -- Where all the members of one firm are partners in another firm, they cannot prove its debt against the latter. Where a bank has discounted drafts drawn by the former firm upon one who is a partner with the members of such firm in the latter firm, it cannot prove its claim thereon against the joint estate, but must look to the separate estate of the drawee. U. S. Dist. Ct., N. D. New York. In re Savage, 16 Nat. Bankr. Reg. 368.

PREFERENCE.

1. What constitutes: procuring property to be seized on execution.-An insolvent debtor, who was a trader, gave to a creditor new notes, payable on demand, sigued by himself alone, to take up others of the same amount, secured by the signature and indorsement of other responsible parties, and purchased goods of persons who were ignorant of his insolvency, in order that such goods might be taken on execution on judgments recovered on such notes. Held, that he thereby procured, or at least suffered his property to be seized on execution within the meaning of section 5,128 of the Revised Statutes, if seizure there was. U. S. Circ. Ct., N. D. New York. Sage, Jr., v. Wynkoop, assignee, 16 Nat. Bankr. Reg. 363.

2. Knowledge of agent that of principal.-Where the agent of the creditor had reasonable cause at the time to believe the debtor was insolvent, and knew that the transaction was in fraud of the Bankrupt Law, it is the same as if the creditor had himself taken part therein with the same cause to believe and the same

Bachelor supporting family: change of residence.- knowledge. Ib. A bachelor may be considered as the head of a family, so as to be entitled to a homestead exemption, when his widowed sister has resided with him, taking charge of his household and domestic arrangements, and paying no board, but regarding it as her home. The right to such exemption is not abandoned by residence of the bankrupt for a time at another place, occasioned by ill-health. U. S. Circ. Ct., E. D. Missouri. Bailey, assignee, v. Comings, 16 Nat. Bankr. Reg. 382.

HUSBAND AND WIFE.

1. Conveyance of real estate to. - In Indiana a conveyance of real estate to husband and wife creates an

BOOK NOTICE.

BIGELOW ON FRAUD.

The Law of Fraud and the Procedure Pertaining to the Redress Thereof. By Melville M. Bigelow, author of "The Law of Estoppel," etc. Boston: Little, Brown & Company, 1877.

THIS

work is well arranged and carefully written, and the statements of principle appear to be accurate. The plan of the work, as set forth in the preface, is this: The common-law doctrines of fraud, both the substantive law and the principles of procedure, have been stated. Following established divisions, the sub

stantive law has been divided into actual and presumptive or constructive fraud, the former consisting of three chapters and the latter of two. The chapters relating to actual fraud treat first of deceit as the type of all fraud, and, secondly, of frauds not necessarily turning upon the doctrines of deceit, and this second class has been divided into special instances of fraud in pais, and frauds upon the administration of the law. The doctrines of presumptive or constructive fraud are presented in two chapters, the first of which treats of confidential relations, and the second of notice. The consideration of the adjective part of the law carries the subject of procedure through all its stages from jurisdiction to damages. The treatise, however, is very deficient in its citation of authority. Not only is the case of Chandelor v. Lopus, mentioned in the preface, omitted, for which there is a sufficient reason given, but later cases, which are not referred to in the preface, and for whose omission we can conceive no possible reason. For instance, Ellis v. Andrews, 56 N. Y. 83, which is a leading case upon the question of fraudulent misrepresentation, and Holbrook v. Connor, 60 Me. 578, upon the same subject. The proof reading on the work, at least, so far as the names of the cases are concerned, has been somewhat carelessly done; for instance, the name "Canaday," in the citation Simar v. Canaday, on page 18, is wrongly spelled, and the citation is not referred to in the table of cases cited. The work is, however, in most respects, so well done that it will be accepted by the profession as a valuable contribution to the law upon the subject concerning which it treats.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down on Friday, December 21, 1877: Judgment affirmed, with costs- Leonard v. The City of Brooklyn; Wilson v. Van Pelt; Browning v. The Home Ins. Co. of Columbus, Ohio. Judgment affirmed - The People ex rel. Hayes v. The City of Brooklyn.- - Order granting new trial affirmed and judgment absolute for plaintiffs on stipulation, with costs Brennan v. Willson.- Order granting new trial affirmed and judgment absolute for defendant on stipulation, with costs- Sanxay v. Hamel. Motion for reargument denied, with $10 costs-Tone v. The Mayor; Coleman v. Crump; Shand v. Hanly.

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Order modified so as to read as follows: Orders of General and Special Term reversed and application denied without prejudice, and without costs -Collins v. Collins.

The court adjourned without day.

The following order was handed down by the court: Ordered, That a term of this court for 1878 be held at the Capitol, in the city of Albany, commencing on the third Tuesday of January next, and continued for the year with such intermissions or recesses as the court shall from time to time order.

A calendar will be made for said term, upon which the clerk will place only such appeals, the returns in which shall have been filed, or shall be duly noticed for argument by one or both parties, and due proof of the service of such notice filed with the clerk as required by the twenty-second general rule of the court, on or before the fifth day of January.

Causes which have been marked as "passed" on any

previous calendar, will be placed on the calendar to be made as of the day they were so "passed."

Members of the bar will take notice that all cases undisposed of on the present calendar must be re-noticed or they will not be placed upon the new calendar.

CORRESPONDENCE.

THE NORTH CAROLINA SUPREME COURT. To the Editor of the Albany Law Journal: SIR-In your number of the LAW JOURNAL of the date of December 1st, there is an interesting review of the 21st American Law Reports. Your comments upon the two cases cited from this State, I am sure, meet the approbation of the North Carolina bar. But let one seeming error be corrected. Your idea, evidently, is, that the court is Democratic. Such is not the case. The court, as now constituted, is composed of five judges, all of whom are Republicans. It would be hard to find a Democratic lawyer in the State who would agree with the chief-justice's opinion in the case of the State v. Neely, 74 N. C.

In justice to our bar, will you publish this statement? F.

SALISBURY, N. C., December 19, 1877.

THE GRAMMAR OF THE NEW CODE.

To the Editor of the Albany Law Journal:

SIR-Your correspondent, T. C., this week, makes an extraordinary attack upon the grammar of the New Code of Procedure, upon the ground that instead of using the old fashioned statutory subjunctive, and saying "if an action shall be brought," it says "if an action is brought," whereupon, "T. C." denounces the codifiers as guilty of ignorance which "would disgrace a schoolboy."

The difficulty is, that "T. C." has been too long out of school, and is not familiar with the new grammars. I think it safe to say that all the best authorities now discard the old form of subjunctive, and use the precise form adopted by the new Code. The author of the Code of Procedure of 1848 (which "T.C." admires) deliberately abandoned the old style in preparing the later codes, which represent his mature judgment. The Civil Code, reported in 1865, uniformly rejects the old subjunctive. Thus, section 875 says: "If a seller agrees to send, * *if he follows such directions,"

*

etc., etc. The same form is used in sections 52, 122, 872, 874, 1530, 1782, and indeed throughout. This form is also adopted by those very "ignorant" gentlemen, the judges of the court of appeals. Chief Justice Church says, "if this argument is sound (66 N. Y. 13). Judge Rapallo says, "if the article is attached, * * if it is placed" (66 N. Y. 495). Judge Allen says, "if a conveyance is made" (66 N. Y. 381). All of which forms of expression are, according to "T. C.," proof of ignorance disgraceful to any boy.

But this frightful ignorance is not confined to our own courts, it darkens the bench in England. Those ignoramuses, Lord Chief Justice Cockburn, and Lord Justice Mellish, habitually blunder in the same manSee Law Rep., 1 Q. B. D. 230, 262, 541, for several melancholy instances, sometimes occurring twice on a page. Macaulay and Emerson make the same "disgraceful blunder."

ner.

It is obvious that the new Code should be repealed at once, and that "T. C." should be made the next

judge of the Court of Appeals, to reform its grammar.
In the hope of which, I remain
Yours penitently,

AN ENLIGHTENED IGNORAMUS.
NEW YORK, Dec 22, 1877.

NOTES.

THE
HE Illinois State Bar Association meets at Spring-
field, in that State, on the 3d of January, 1878.
The Chicago Legal News says that though not one
year old, "it has exercised an influence upon the legis-
lation of the State that has remodeled its judicial sys-
tem, that will, as soon as the accumulated cases of the
past are disposed of, relieve our Supreme Court of its
overwork, and has caused many and valuable changes
to be made in the laws relating to the practice of the
courts."

We take the following from The (Brussels) Nord of the 5th of December, 1877: "The chamber began on Wednesday the discussion of the first book of the new penal Code. The vote on the article which abolished the death penalty was greeted with prolonged applause. Almost all the deputies, except some members of the Right, rose in favor of the adoption of the articles. Mr. Pierantoni having asked as the crowning of the edifice that the chamber should decide that, when there shall be a question as to the delivery of a criminal to a foreign power, the condition shall be imposed that the criminal shall not be executed. Mr. Marcini, minister garde des Sceaux, declared that he accepted the recommendation of the Hon. Mr. Pierantoni, and the latter thereupon withdrew his motion." The passage of the measure by the Senate is regarded as certain, says The Nord, in another column.

An interesting decision in criminal practice was rendered in the Supreme Court at Columbus, Ohio, on the 19th inst. Sarah M. Victor, convicted of poisoning her brother, Joseph Parquet, in order to obtain $2,000 life insurance, was originally sentenced to be hanged, but as there were symptoms of insanity the Governor commuted her punishment to imprisonment for life. While she was in the penitentiary her reason was restored and she refused to assent to the commutatien of the sentence. Having obtained a writ of habeas corpus, she asked the court to release her; but the bench ruled that although she was detained in the penitentiary without warrant of law inasmuch as she had not consented to the commutation of sentence, she was not entitled to liberty, but was an escaped prisoner after conviction, and must, therefore, be delivered to the sheriff and the original sentence be carried out. In a word, the prisoner who was trying to crawl out of the courts through the knot-hole of a technicality, was ordered to be hanged. This was more than she and her lawyer had bargained for. As soon as she was taken to the county jail, she opened proceedings in error and applied for a reversal of the judgment and order which she had herself procured. The Supreme Court now rules that the decision of the court below was wrong in affirming that a prisoner must consent to a commutation of sentence, and decides that Mrs. Victor must be sent back to the penitentiary for life.

A singular decision of Vice Chancellor Bacon in the case of German v. Chapman, 25 W. R. 802, has, says The Solicitors' Journal, been reversed by the Court of Appeal. The question turned on the construction of a covenant in a conveyance of a piece of land, whereby the purchaser undertook that "no house or other building to be erected on the land should be used or occupied otherwise than as and for a private residence only, and not for any purpose of trade." This covenant the Vice-Chancellor held would not be broken through the erection by the institution, for the education of the daughters of missionaries, of a building intended to be used for the board, lodging, and education of 100 girls; but the Court of Appeal has taken the contrary view. There is, probably, no person of ordinary common sense, outside the profession, who would have adopted the view held by the learned ViceChancellor; that is to say, there is no one who would have dreamt of calling such an institution a private residence. But to a mind trained in legal fictions, the fact that the committee of the institution might be regarded as standing in loco parentis to the children, and that the building might be called their "home," seemed to have come with all the force of an argument, especially when the keen professional instinct for analogous instances had discovered that there might be such a thing in rerum naturæ as a real father of 100 daughters. Accordingly the Vice-Chancellor imported, for the occasion, a Turkish pasha with

An unusual legal question has arisen in Philadelphia | growing out of the case of John H. Brown, a negro barber, who assaulted and shot the son of Hon. William D. Kelley in a street car, while under the influence of liquor, and without any provocation on the part of young Kelley, who was an entire stranger to him. The negro was sentenced to one year's imprisonment by Judge Pierce, after his trial and conviction early last week. But it was not known at the time that Brown was an old offender. As the judge believed him to be repentant for his offense and to have been more drunk than he really was, he passed a light sentence upon him. Since the sentence it has been ascertained that he has been guilty of murderous assaults upon several preceding occasions. A motion has, therefore, been made that the prisoner's sentence be reconsidered, a proceeding said to be unprecedented, except where such a motion was made in the prisoner's behalf with a view of reducing his punishment. The judge, after some consideration, granted the order, and the matter came up to-day. Testimony was introduced to show the bad antecedents of the negro, Mr. Kelley himself testifying upon information and belief as to previous crimes committed by the barber. Mr. Benjamin H. Brewster, as a friend of Mr. Kelley, stated, for the information of the court, that the reconsidering of a sentence and the imposi-dence, according to a just interpretation of that tion of a severer one was not altogether without precedent, the question having once come before the Supreme Court while he was attorney-general, and it was decided that the court was justified in reconsidering the act before the close of the term.

several of his wives and a hundred children," and set him to build a house on the land; and, warming up in his contest with common sense, came at last to ask: "What is this house to be if not a private resi

phrase?" One is almost sorry to see that this beautiful instance of full-developed and trained legal instinct has met with so little admiration in the Court of Ap peal. "The proposed use," said Lord Justice James, was not, in any sense of the words, a use as a private residence."

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ACTION:

another action pending; husband and wife; when
process does not protect sheriff..
promise to pay debt of another; stranger to consid-
eration; when agreement does not run with lands, 223
recovery back of money paid on illegal assessment;
involuntary payment; coercion in fact and by law
defined; what necessary to warrant action to re-
cover moneys paid on erroneous assessment
to set aside lien of assessment; when it will not lie;
stating bad ground of complaint does not invali-
date complaint as to good ground...
tort for taking clay from pit by vendee under parol
contract..

102

PAGE.

301

ARREST:
assault by police officer; aggravated assault..
disposition of goods to prevent replevin; what nec-
essary to authorize arrest; paid check not sub-
ject of replevin......

352

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(see Action.)

(see Attorney and Client; Contract; Practice; Tort.)
ADMINISTRATOR-When not guilty of devasta-

ASSIGNMENT:

vit...

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under State law in New York city...

of lease (see Suretyship).

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