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AGREEMENT NOT TO
dor of the property, but he alleged that plaintiff took the notes subject to his counter-claim, and he sought to set off the amount of his damages against the notes in its hands. The burden was on him to establish the amount of damages which he sustained in consequence of the failure of the warranty, and this he has not done. The measure of his damages is the difference between the value of the property as it actually was, and what its value would have been had it been as warranted. Pitsinowsky v. Beardsley, 37 Iowa, 9; McCormick v. Vanatta, 43 id. 389. J. J. Case Threshing Machine Co. v. Haven. Opinion by Reed, J. [Decided Dec. 10, 1884.]
CONTRACT-PUBLIC POLICY UPHOLD WILL.–An oral contract entered into by an heir and the father and grandfather of an infant legatee, providing that the heir shall pay the amount of the legacy if the others would not do any thing to uphold the will, and so defeat provisions made for other legatees, is without consideration, contrary to public policy, and void. Gruy v. McReynolds. Opinion by Rothrock, C. J. [See 30 Am. Rep. 383.] [Decided Dec. 13, 1881.]
VENDOR AND VENDEE-LIEN OF VENDOR-PRIORITY
JUDGMENT. Whether a judgment lien takes precedence of a vendor's lien, where the judgment creditors have taken judgment in igno. rance of the vendor's lien, appears to be an open one in this State. It was held in Allen v. Loring, 34 Iowa, 499, that the lien of an attachment takes precedence of a vendor's lien, where the attaching creditor acquired his lien without notice of the vendor's lien; and Gilman v. Dingeman, 49 Iowa, 311, there is an intimation that the same rule would apply in favor of the holder of a judgment lien. In Porter v. City of Dubuque, 20 Iowa, 442, it was said: “The right to a lien in favor of a vendor, upon real estate sold to a vendee, is not based upon contract, nor is it properly an equitable mortgage; neither can it be regarded as a trust resulting to the vendor by reason of the vendee holding the estate with the purchase-money unpaid. It is a simple equity raised and administered by courts of chancery.” In Allen v. Loring the court, in speaking of the vendor's lien, says: “It is never allowed to override or take priority of equities or rights of third persons which have attached in ignorance of such vendor's lien." Iu 3 Pom. Eq. Jur., § 1253, the author says: “Whether the grantor's lien is or is not superior to that of subsequent judgments recovered against the grantee, is a question upou which the American decisions are in direct conflict. On principle however, and especially when considered in connection with the universal system of registry, it seeins to me clear that the subsequent judgment liens are entitled to precedence.” See also Johnson v. (aw. thorn, 1 Dev. & B. 32; Roberts v. Rose, 2 Humph. 145 ; Gann v. Chester, 5 Yerg. 205; Gilmau v. Brown, 1 Mason, 192. While we do not regard the question presented as entirely free from doubt, wo have to say that we think that the rule which subordinates a vendor's lion to a judgment lien acquired without notice is the better rule. A person who has a claim upon two funds as security cannot be required to exhaust ono in preference to the other, except where it can be dono without injustice to him. Clarke v. Bancroft, 13 Io wa, 320. Cutler v. Ammon. Opinion by Adams, J. [Decided Dec. 9, 1884.]
CONTRACTOR.–Section 3314, Rev. Stat. 1878, authorizing a mechanic's lien, does not exteud to a building or machinery placed in a building constituting a part of the water-works of a municipal corporation. The public inconvenience which would result from having such machinery removed is too obvious and grave to require any discussion. The comfort, health, safety and property of the citizens would be greatly endangered by allowing the facilities for procuring water to be suspended, even for a short period. In view of the serious consequences which would result by allowing the lien to attach to machinery thus used, and which more than countervail any private advantage, we are inclined to hold that the provision does not apply in the case before us. True the city has paid into the court the price of the boilers; but suppose it had not done so; if the lien is given they might be removed. Consequently on grounds of public necessity and convenience, we must hold that the lien did not attach. The case stands upon the same ground as where material is furnished for a county court house, jail, public school building, or other publio building, which are held to be exempt from the operation of mechanic's ien laws. See Phil. Mech. Lien, $ 179, and cases oited in the notes; also Leonard v. City of Brooklyn, 71 N. Y. 498; 27 Am. Rep. 83; Board Com’rs v. Norriugton, 82 Iud. 190; Board Com’rs v. O'Conner, 86 id. 531. In Burnham v. City of Fond du Lac, 15 Wis. 193; Buffhan v. City of Racine, 26 Wis. 449; Merrell v. Campbell, 49 id. 535, it was held that a municipal corporation was not subject to the ordinary process of garnishment. In 1873 the Legislature enacted chapter 150, which is very nearly the same as section 3328, Rov. St. This section gives the subcontractor who has done work or furnished material to any priucipal contractor for the construction and repair of any building or machinery for any county, towy, city, village or schooldistrict an action therefor against such principal contractor, and such county, town, city, etc., jointly for the recovery thereof. But no judgment shall be rendered against any defendant therein other than such principal contractor, for any amount greater than the amount due from it to such principal contractor at the time of the commencement of such action." On rendition of judgment in such action against the principal contractor, the court may also render judgment against the county, town,city, etc., for the amount due from it to the principal contractor, when the suit was commenced, or to a sufficient amount to pay the judgment recovered against the principal contractor, and payment thereof shall discharge its indebtedness to such principal contractor for the amount paid. In Klaus v. City of Green Bay, 34 Wis. 629, the remedy thus given was considered to be in the nature of a garnishment proceeding against the political corporation or municipality, where it could discharge its indebtedness to the principal contractor by paying the subcontractor the amount due him from such principal contractor. But the subcontractor is expressly limited in his recovery to the amount due from the municipal corporation to the principal contractor when the suit was commenced. In this case the court finds that the city of Madison was not indebted to the Libbeys at the time of the commencement of this action. The correctness of this finding is not questioned; therefore there could not be any recovery against the city in this case. Raduenz v. School Dist., 42 Wis. 397. Wilkinson v. Hofman. Opinion by Cole, C. J. [See 37 Am. Rep. 189; 33 id. 116.-ED.] [Decided Deo. 16, 1881.]
STATUTE OF FRAUDS-CONVEYANCE BY FATHER TO son.- Whero a father executes a deed of conveyance of his real estate, and a bill of sale of his personal
WISCONSIN SUPREME COURT ABSTRACT.
MECHANICS' LIEN—MUNICIPAL PROPERTY-WATERWORKS-PRIORITY-SUBCONTRACTOR AND SURETY OF
property, to oue of his sons, upon condition that the have full power and discretion in grading or filling up sou should give him ono-half of the buildings and one their streets, and need make no provision for carrying balf of the crops during the lives of himself and wife, off the surface water of adjoining lands, or against its and whoever should first die, one-third of the crops back-flow upon such lands (Lynch v. Mayor, etc., 76 to the survivor, and pay to his other son and daughter N. Y. 60), and when it has made such provision by a certain sums of money after his decease, aud also to sower or a drain it may discontinue or abandon the liquidate a mortgage on the land, such conveyance same if such owners are left in no worso condition and transfer of his property is a trust for his use, and than they would have been if such sewer or drain had is void under the statute of frauds (Rev. St., $ 2306) as never been made. City of Atchison v. Challiss, Kan. against existing or subsequent creditors, and the fact 603. The authorities cited by the learned counsel of that the son had previously made advances of consid tho appellant are cases of nuisance and condemnation. erable sums of money to the father, does not change This is neither. The injury is caused by the occathe character of the conveyance or strengthen his titlo sional rains and melting snows, which create tempoto the property as against such creditors. Disregard-rary surface water, and the plaintiff's land is in no ing mere form, and looking only to the substance of sense taken for public use. This is the vital and only the transaction, as it is our plain duty to do, the con question in this case, and as we have seen, the injury veyance of his property by the intestate to the defend by the back flow of mero surface water, however ant created a trust in tho property conveyed for the caused, by the reasonable improvement or use of the support and maintenance of the intestate and his wife | land below by the owner thereof is without remedy. during their lives, or during the life of either of them, The principle is as well established by reason as by the and for the payment of specified sums of money after decisions of this and other courts, and may not be their decease to their other childreu, True, the con- yielded or compromised to meet seeming cases of harddition expressed in the conveyance is not, in form, for ship. Waters v. l'illage of Buy l'icu. Opinion by such maintenance, but that is its plain and obvious | Orton, J. import. Had the defendant failed to furnish the in- [Decided Dec. 16, 1881.] testate and his wife the stipulated buildings, and to deliver to them the stipulated proportion of the crops raised on the farm, thus depriving them of the means
JUDGE IIOLMES ON TIIE BEVCII AND TIIE BAR, of subsistence, a court of equity would promptly have rescinded the conveyanco and restored the property to T is strange that although some of the jokes at the the intestate. Bogio v. Bogie, 41 Wis. 209; Bresna late dinuer of the Boston bar were widely copied, ban v. Bresnahan, 46 id. 385; Bishop v. Aldrich, 48 id. the attention of few outside of Massachu621; Blake v. Blake, 56 id. 392; Delong v. Delong, id. setts has been called to the speech bhen made by 514. Severin v. Rueckerick. Opinion by Lyon, J. Judge Oliver Wendell Holmes, Jr., which we publish [Decided Dec. 16, 1884.)
for the benefit of our readers. It is refreshing in these
days when the practice of the law is viewed by so MUNICIPAL CORPORATION-SURFACE WATER-DAM many, not only of the laity, but even members of the NUM ABSQUE INJURIA.- Where the owner of land suf bar, simply as a means of bread-winning, with no fers injury from the flow of surface water caused by higher aims and ethics than those of tho traders in au improvement of the street, but the land is too re
stocks and land; and when we seem to have yielded mote to entitle tho owner to compensation for land
without a struggle to the players that distinctive title taken for public uso, the injury is consequential only, of the profession of wbich our predecessors were so and it has been too ofton decided by this court that proud to read the words of one who, after reaching siich an injury is damnum absque injuria to be au opon
eminence in the theory, tho history and the adminisquestion, and such are the decisions elsewhere, where tration of justice between man and man, still regards the common-law rule prevails. “According to that his calling with the same passion that the painter feels rulo no natural easement or servitude exists in favor for his art. Even a layman should be pleased and inof the owner of the higher ground for the flow of mere
terested by this outburst of Elizabethan English in our surface water over the lower estate, but the owver of prosaic age over what too many, eren of its students the latter may detain or divert the same without ren consider a dry and technical branch of learning. dering himself liable in damage therefor.” “An owner “ The court and tho bar are too old acquaintances to has the right to obstruct and hinder the flow of mere speak much to each other of themselves or of their surface water upon his land from tho land of other mutual relations. I hope I pay say we are too old proprietors, and he may even turn the same back upon friends to need to do it. If you did not believe it alor on to the land of his neighbor, without incurring ready, it would be useless for me to ailirm that in the liability for injuries caused by such obstructions." | judges' half of our common work the will at least is “Mere surface water, which is supplied by rains or melt not wanting to do every duty of their noble oilice; that ing snow flowing in a hollow or ravine on the land is every interest, every faculty, every energy, almost not a water-course. " O'Connor v. Fond du Lac, A. & P. every waking hour is filled with their work; that they Ry. Co., 52 Wis. 526. In that case tho chief justico re give their lives to it, more than which they cannot do. views the previous decisions of this court on that ques But if not of the bench, shall I speak of the bar? Shall tion, and no difference is made between the case of a 1 ask what a court would be, unaided? The law is railroad company grading its track and a municipal made by the bar, even moro than by the bench; yet corporation grading its streets so far as mere surface do I need to speak of the learning and varied gifts that water is concerned; and Hoyt v. City of Hudson, :37 | have given the bar of this State a reputation throughWis. 656, which is directly in point, is cited, as well out the whole domain of the common law? I think I as Pettigrew v. Village of Evansville, 25 Wis. 2:23; need not-nor of its high and scrupulous honor. The Fryer v. Warne, 29 id. 511; and Eulrich v. Richter, 37 world has its fling at lawyers sometimes, but its very id. 226. Whether this is mere surface water and not a denial is an admission. It feels what I believe to be water-course is a question of fact which the jury de the truth, that of all secular professions this has the termined agaiust the plaintiff, and there is nothing highest standards. which would even imply that the flow of such surfaco And what a profession it is! No doubt every thing water was so great or constant as to be so near a water is interesting when it is understood and seen in its course as to be an exception to the rule, which some connection with the rest of things. Every calling is authorities seem to recognize. Municipal corporations great when greatly pursued. But what other gives
such scope to realize the spontaneous energy of one's such work is indispensable to the practitioner under a soul? In what other does one plunge so deep in the Code, aud we kuow of uone better than this. It is stream of life-so share its passions, its battles, its de conveniently arranged, and generally we find the forms spair, its triumphs—both as witness and actor?
very good. It is well printed, and is not padded. But that is not all. What a subject is this in which we are united! This abstraction called the Law, wherein as in a magic mirror we see reflected, not only
BISHOP'S DIRECTIONS AND FORMS. our own lives, but the lives of all men that have been. Practical Directions and Forms for the grand jury room, When I think on this majestic theme my eyes dazzle. trial court and court of appeal in criminal cases, with full If we aro to speak of the law as our mistress, we who citations from the reports and other books, and a general are here kuow that she is a mistress only to be wooed index to the author's series of criminal law works. By with sustained and lonely passion-only to be won by Joel Prentiss Bishop. Boston: Little, Brown & Co., straining all the faculties by which man is likest to a 1885. god. Those who, having begun the suit, turn away un Although Mr. Bishop has a mean opinion of law-jourcharmed, do so either because they have not been
nal book notices, we shall not be deterred from giving vouchsafed the sight of her divine figure, or because
an honest opinion about his books. This seems to us, they have not the heart for so great a struggle. To the
from a cursory examination, to be like all his other lover of the law, how small a thing seem the novelist's
works, perfect in its way. We can say no more, and tales of the loves and fates of Daphnis and Chloe. How
can honestly say no less. The general index to his pale a phantom even the Circe of poetry transforming
works on criminal law is extremely valuable. The mankind with intoxicating dreams of fiery aether and
book is beautifully printed. the foam of summer seas and glowing greensward, and the white arms of women! For him no less a history will suflice than that of the moral life of his race.
LAWSON'S PRESUMPTIVE EVIDENCE. For him every text that he deciphers, every doubt that
The Law of Presumptive Evidence, including presumptions he resolves adds a new feature to the uufoldiug pano both of law and of fact, and the burden of proof, both in rama of man's destiny upon this earth. Nor will his
civil and criminal cases, reduced to rules. By John D. task be done until, by the furthest stretch of human Lawson. San Francisco: A. L. Bancroft & Co., 1885. imagination, he has seen as with his eyes the birth and growth of society, and by the furthest stretch of rea
The readers of this journal will form a good opinion son he has understood tho philosophy of its being.
of this excellent treatise from the large portions of it When I think thus of the law, I see a princess mightier originally published in these columns. It is written than she who once wrought at Bayeux, eternally weav
on the true plan of codification, and it is most admiraing into her web dim figures of the ever-lengthening
bly executed. It is hoped that the author will follow past-figures too dim to be noticed by the idle, too
it up in the same way, and his later contributions to symbolic to be interpreted except by her pupils, but to
this journal give promise that he will. Mr. Lawson the discerning eye disclosing every painful step and
now stands at the head of the younger law writers,and every world-shaking contest by which mankind has
this work will confirm his position. worked and fought its way from savage isolation to organic social life. But we who are here know the law even better in
NOTES. another aspect. We see her daily, not as anthropologists, not as students and philosophers, but as actors in a drama of which she is the providence and over
E have always been aware that it is sinful to smile ruling power. When I think of the law as we know in church; our mothers have told us that; the her in the court-house and tho market, she seems to punishment we always thought was being handed over me a woman sitting by the wayside, beneath whose over to the tender mercies of that august official, the beaBhadowing hood every man shall see the countenance dle. It seems however when we attain years of disof his deserts or needs. The timid and overborne gain cretion the punishment for smiling in church is a fine heart from her protecting smile. Fair combatants, of 5s. A well-known merchaut ventured the other day manfully standing to their rights, seo hor keeping the while in church to remark to a friend that “the oborlists with the stern and discriminating eye of even jus isters looked well in tbeir night shirts,” referring to tice. The wretch who has defied her most sacred com their surplices. The remark caused a smile; the smile mands, and has thought to creep through ways where cost 5s., being held to be “brawling.” The smile was she was not, finds that his path ends with her, and be really uncalled for; there was nothing funny in the holds boneath her hood the inexorable face of death. remark; but was not the punishment also uncalled
Gentlemen, I shall say no more. This is not the for? It is only fair to mention that the decision was moment for disquisitions. But when, for the first upset on appeal; so that we may still look amiable time, I was called to speak on such an occasion as this when in church without being fined for smiling.–Gibthe only thought that could come into my mind, the son's Law Notes. -Some Euglish magistrates decided only feeling that could fill my heart, the only words that a “crawfish " is not a fish, but the judges thought that could spring to my lips, were a hymn to her in otherwise. -The following actually occurred in court whose namo we are met horo to-night, to our mistress,
a few days ago : After a long wrangle between judge the Law.
and counsel-Judge: “Well, Mr.
if you do not
know how to conduct yourself as a gentleman, I can't NEW BOOKS AND NEW EDITIONS. teach you.” Couusel: “That is so, my lord.—Law
Times. (This really occurred in the ark.—ED.SA ESTEE'S PLEADINGS.
Legal Subtlety.-At Hastings a respectably-dressed Estee's Pleadings, Practice anıl Forms. Adapted to actions man, in a hopeless state of intoxication, was found in
and special proceedings under Codes of Civil Proceduro. a bath chair, drawn by a chairman, and was taken into By Morris M Estee. Third edition, revised, enlarged custody. It appeared however that the accused was and rewritten by Carter P. Pomeroy. Three volumes. not removed from the bath chair until he got to the San Francisco: A. L. Bancroft & Co., 1885.
police station, and the bench holding that the prisoner This we believe is the most elaborate and complete had not been found drunk in the highway, dismissed work on this subject, and it is of good reputo. Some the case.
The Albany Law Journal.
ALBANY, ULAY 30, 1885.
respond to the witty illustration of the Home Secretary. Far from expressing the slightest shame or penitence for the views which he holds as to the sacredness of property of all descriptions, Lord Bramwell actually seems to glory in them. The session of the Court of Appeal was probably the earliest opportunity that was presented to him of
tutes larceny. The St. James Guzette says: “If events, he seized on the opportunity and turned it
to the best account. a sovereign is given to a cabman by his fare, both
Portia's statement parties believing it to be a shilling, and an hour
of the case would, Lord Bramwell tells us, have inlater the calman discovers the mistake and keeps luced liim to give the pound of flesh to the usurer, the sovereign, has he stolen it? The argument of cxcept for one little flaw in her argument. The this question before the Court for Crown Cases
flesh had not been appropriated,' and could not, Reserved last week afforded excellent entertainment therefore, be regarded as property to which Shylock to a professional audience. The dilliculty is, that had a good legal right until it had been cut from to 'take and carry away animo rurumii' is an essen
Antonio's quivering body. Supposing Lord Bramtial part of the cominon-law definition of larceny,
well to have been sitting in banco with the Doge and that in this case the cabman did not form a
of Venice on the occasion of the famous trial, and felonious intention about the sovereign when he
the pound of flesh had been lying on a table, ready took it and carried it away, because he then believed
cut; in that case the decision of the English judge it to be a shilling. On behalf of the Crown it was
would have been in favor of the plaintiff's claim to argued that either he took it when he knew it was
the possession of the horrible piece of property.' a sovereign or the felonious intention which he But then, as Lord Bramwell truly remarks, in order subsequently formed relates back to the time when
to get the flesh, assault, and even murder, would he took it. Before the argument has gone far it
have had to be committed, and therefore the conwas apparent that the five judges who were hearing
tract was null and void from the beginning. * the case were not agreed, and while Lord Coleridge The moment Shylock had advance toward his vichad no doubt that the sovereign was stolen, Jr.
tim, kuife in hand, he woulil have been technically Justice Stephen was equally positive that it was not. guilty of an assault with intent, ind would have IIr. Justice Cave further complicated matters by been obliged to appear at the police court of the throwing out a suggestion that the cabman might period next morning to hear what the sitting magisperhaps have committed the statutory offense called trate thought of the offense." larceny by a bailee. In the result the Lord Chief Justice announce that the Bench was so seriously divided in opinion that there must be a further
The Chief Justice of Ontario has given the lawyers argument before the full court -thit is the whole
“ fits." The Cumaliim Lum Iimes says: “The Queen's Bench Division; so that the frequenters of speeches were «xcellent without exception, the the law courts will again be gratifier by the most
chief justice of Ontario throwing his andience into impressive legal spectacle left to us in these prosaic successive fits of laughter with his brilliant wittidays, that of twelve or fourteen juges all sitting
(isms." together to decide a question of criminal law." It would be bad indeed to have a statute exactly de
Mid-ship mite” pats "the ruler of the fining larceny, for then suitors could not be treated queen's navee” on the back -- The Columbia Jurist to this "impressive legal spactacle."
calls us its “ esteemed contemporary.” This is too, too much.
Lord Bramwell thinks the contract between Shy
Judge Elliott Anthony is publishing in the Chilock and Antonio was contr'u bonos mores and void.
cago Legal Advisor a remarkably interesting series In this he is not alone nor original. We have ad
of articles on the “ Courts of England." vocated that view for years. The present comment came about in this way, as we learn from the London Dr. Hammond, the younger not the novelist Telegraph — "The llome Secretary lately ventured has discovered that hanging, producing strangulato assert that Lord Bramwell entertained so vast :1 tion without breaking the neck, is a humane, not to reverence for all kinds of property that if he had say very pleasant mode of execution. It is the been called upon to decide the legal clispute in • The breaking of the neck that is barbarous, painful, and Merchant of Venice,' he would infallibly have de not instantaneous. This at least, the part relatclared that Intonio's pound of flesh must be given ing to mere strangulation – he has demonstrated to his creditor. Loril Bramwell, with the frankness by experiments on his own person, by means of a which usually characterizes him, has met Sir Wil- silken cord, a tourniquet and trustworthy friends liam IIarcourt's little joke by an answer delivered to relax the pressure.
Dr. Hammond has experifrom the judicial bench. In the course of an Appeal | enced the most delightful sensations.
Ilis gifted Court case the learned judge took occasion to father ought to put them in his next novel. But this
Vol. 31 No. 22.
seems dangerous trilling -- something like jumping we guess that the "trimmings” are "cherry " off Brooklyn bridge. and if the assistants should rather than “cheery.” miscalculate or any thing should go wrong, the world would be deprived of an enterprising young physician. Beside, we fear that this will inspire others to
NOTES OF CASES. try the same experiments without the same precau
N Johnson v. Roger's, 35 Hun, 267, it was held that tions and experience, with fatal results. This would
a deed from husband to wife is void at law. be bad for the bystanders surviving. All this nonsense
The court said: “In other words can a husband ought to stop. Let us go on hanging after the ol«l
deed to his wife? The authorities are conflicting fashion, and let us not be persuaded not to break necks because strangulation is pleasanter.
and leave the question in doubt. In the case of Hecker v. Wright, 76 N. Y. 262, the argument of
Danforth J., would seem to support the deed, but The question of delays in the administration of
his opinion was not concurred in by a majority of justice is to be reported upon, at the next meeting the court. In the case of Thompson v. Commissioners, of the American Bar Association, by a committee of etc., 79 N. Y. 54–63, the plaintiff at the time of which we believe Mr. David Dudley Field is chair
the execution of the mortgage was the owner in fee This topic, under the title of - The Tardiness of one-third of the premises. She subsequently of Justice,” is discussed by our townsman, Judge received a deed from her husband of the other twoW. L. Learned, in the current munber of the North
thirds. It was held that the defendants were not American Rerior. The writer alludes to many of in a position to raise the question as to plaintiff's the well recognized causes of delay, and suggests right as guarantee of her husband; and Miller, J., some ameliorations, which we have not space to in concluding his opinion, says: “Under recent dwell upon. The most striking point made by him legislation the husband has a right to convey to his is the following: “But under our system, following wife," citing the case of Veeker v. Wright, supra. the English, :ppellate courts scem at times to care
In the case of Bertles v. Vunan, 92 N. Y. 152; S. C., more about making precedents than about deciding 41 im. Rep. 361, Earl, J., in delivering the opinthe case in hand justly. This comes from the fact,
ion of the court, says that the common-law disabilso often discussell, that our law is largely “judge- ity of husband and wife, growing out of their unity made 'law. Instead of being guided by the rules of person, to convey to cach other still exists. Inof codes of law, or by a sound judgment as to the
asmuch as the determination of this question was merits of the case, appellate courts are constantly not necessarily involved in the case of Bertles v. searching for precedents in other cases, and are
Vinum, we must regard the question as unsettled anxiously making a precedent out of the case in by the Court of Appeals and consequently open for hand. When a case is argueil, the question is not
consis ion in this court. At common law neither whether justice was done in the court below; but it ushand nor wife could convey to each other for may be whether some witness said something which
the reason that in law they were regarded as one might be considered irrevelant -- perhaps no more
person. It thus becomes a question as to how far important to the merits than whether : stood at the unity of person between husband and wife has right angles to the jury when he testified." The been abrogated by the statutes upon that subject. article is intelligent and timely, and will enhance And in construing these statutes we must bcar in the interest with which the report and discussion mind the rule that statutes changing the common on the subject at Saratoga are awaited.
law must be strictly construed, and that the common law must be held no further abrogated than
the clear import of the language of the statute abThe English journals do not treat our ex-ligni-solutely requires.” (See unte, 361). “It is now artaries with due reverence. liere is what the Lon- guier that because of the amendment of 1862 of don Luw Times says of our late president: “The section 7, leaving out the words 'except her husAmerican journals announce that Vr. Arthur, the band,' that discloses a legislative intent to abrogate late presidlent of the l'nited States, has resumed the common-law rule of unity of person to the exhis law practice with his old firm,' and give inter tent that a husband may now convey real estate esting details as to the furniture of his office, which directly to liis wife. Such however does not appear is stated to be of 'mahogany, with cheery trim to us to have been the purpose of the amendment. mings.' Litigants across the Atlantic may be con If it was, why should the words have been retained gratulated on the opportunity thus afforded of ob in section 8 of the act, and why is section 3 of the taining for six and cightpence (or the Imerican act of 1849 left unchanged ? The reason is quite cquivalent) the opinion of the late chief magistrate apparent; the section ($ 7 chapter 90 of 1860) proof one of the greatest States in the world, and the vided that any married woman may while married taxing officers of the American courts will find sue and be sued in all matters having relation to her peculiarly fascinating employment in cutting down property which may be her sole and separate propthe bills of costs of an ex-president." We are sure erty, or which may hereafter come to her by descent, that the material of the office furniture of so good a clevise, bequest, purchase, or the gift of any person cabinet-maker as Mr. Arthur is not irrelevant. But except her husband,' etc. Under this provision,