transferred by the judgment-debtor with intent to defraud his creditors. W. appeared and answered, denying the allegations of fraud, and alleging payment. Plaintiff did not give any evidence of fraud in the transfer of the note, and defendant no proof of pay

ment.

This action was decided by the Commission of Appeals upon a former appeal, a memorandum of which appears in 48 N. Y. 657.

Held, that the fact of payment to another claimant was immaterial and unnecessary to sustain the defense. Also held, that an adjudication of the Commission of Appeals upon the same points and between the same parties in the same case will not be interfered with in this court.

The omission of this court to notice and discuss in the opinion supposed distinctions, when sanctioning a former decision, is not sufficient to warrant a supposition that they have escaped observation. Terry, Rec'r, etc., v. Wait, impl'd, etc. Opinion by Rapallo, J.

REFEREE'S FINDING.

This action was brought to recover for services of plaintiff as attorney. It was tried by a referee, whose findings of fact were excepted to.

The case presented no evidence to sustain the findings. The General Term declined to pass upon the question of fact on the ground that the case did not state that it contained all the evidence. Held, error; that where a referee's findings of fact are excepted to, and a case is made for the purpose of reviewing them, it must be assumed that all the evidence in support of the findings excepted to is in the case. If any such evidence is omitted by the party making up the case, the other party, if he deems the evidence material to sustain the findings, must have it inserted by amendment. Perkins v. Hill. Opinion by Rapallo, J.

USURY.

The avoidance of a usurious security taken for a valid debt, on account of the usury, revives the debt, and the assignment or transfer of the security carries with it the right of resorting to and enforcing the original debt. Gerwig v. Sitterly; Sitterly v. Gerwig. Opinion by Johnson, J.

WILL.

This action was brought to obtain the construction of a will in which the testator devised and bequeathed his property to trustees in trust "to be used and held" for L., during life, after the decease of L., in case he leaves "heirs " the property to go to said "heir or heirs" when they become of age. In case L. died leaving no "heirs or widow," that it shall go to R. In case L. died leaving a widow, heir or heirs," they were to take for life, and after the death of the heirs the property was to belong absolutely to R. The court below decided the limitations over, void, save the one to R. in case of the death of L. leaving no heirs or widow. There was no appeal from that part of the judgment declaring the clauses referred to invalid. Held, that the term "heirs" as used by the testator, meant heirs of L.'s body, and not heirs at law generally, and that there was a valid limitation over to R., in case of L. dying without leaving a widow or issue.

It is proper to resort to clauses in a will declared to be invalid for the purpose of ascertaining the testator's meaning in the use of terms in the residue of the will. Kiah v. Grenier, admr'x, et al. Opinion by Rapallo, J.

THE LAWS OF WAR.

In last Friday's Gazette, our government published the official protocols of the different meetings of the conferences held at Brussels last July, together with a series of despatches from Sir A. Horsford, the English delegate. Sir A. Horsford's final report of September 4 (No. 44), contains an able resumé of the whole of the proceedings of the conference, which by itself gives a very good idea of what was done, and will, moreover, be found a useful guide through the protocols and his own contemporary reports of the different meetings. All the independent European States, down to Denmark, Greece, and Turkey, were represented each by one or more delegates. The United States government was the only one, invited by the Emperor of Russia, declined to take part in the conference.

The first impression produced by reading the proceedings of the conference is somewhat disappointing, as nothing was finally agreed upon. The draft international declarations as to the laws and customs of war (projet de déclaration International), which resulted from the twenty-four meetings, was ultimately only submitted to the different governments "as a basis for an ulterior exchange of ideas," and the protocols show that at least one important subject-viz., reprisals was omitted from the draft declaration, and not discussed at all, and that on several other points of great importance -e. g., the position of the inhabitants of territories occupied by the enemy, and the requisition system there were very serious differences of opinion. But, on further looking into and considering the proceedings of the conference, this feeling of disappointment has, with us, given place to a belief that the conference has really effected a good deal -- quite as much, indeed, as could be reasonably expected-toward paving the way for a general international agreemeut hereafter as to the rules to be observed in laud warfare.

Of the numerous points comprised in the fifty-six articles of the draft declaration, the permanent conflicts of opinion which manifested themselves among the delegates were confined to comparatively few, though no doubt very important, questions. It may be alleged that most of the other points (as to which no difference of opinion existed beyond what could be removed by amicable discussion) are of no real moment, but although such points may be without importance in this sense, that no statesman or general can foresee whether settling them in any particular manner will be advantageous or disadvantageous to his State in a future war, and therefore will agree to whatever rule seems most humane, yet when a war has begun and the belligerents have got into particular positions, the difference between two possible rules on a point previously unimportant may become of extreme importance. For instance, after the battle of Sedan, the sufferings of the German and French wounded would have been considerably alleviated if the Belgian government had allowed them to be carried to Germany through Belgium; but as this would have relieved the railways by which the Germans were bringing supplies for their armies into France, it would have been disadvantageous to the French, and therefore the Belgian government held it inconsistent with their neutrality to permit the transit. Now the draft declaration has recognized the right of the neutral State to allow the transit of sick and wounded apparently without any single objection. Again, during the siege

of Paris it was the interest of the Germans to check as far as possible communications by balloon between the city and the open country, and accordingly they deduced from the general theory of international law that a person floating over the enemy's lines was a spy. The draft declaration (art. 22) negatives this view.

The most important of the permanent conflicts of opinion related to the rising in arms of the population of a territory already occupied by the enemy. The draft declaration (art. 1)) proposes that the population of a non-occupied territory rising in arms shall be considered as belligerents if they respect the laws and customs of war, although they may not have had time to organize themselves under a responsible head and with distinctive badges recognizable at a distance. The German delegate proposed to accompany this by a declaration that the inhabitants of a de facto occupied territory taking up arms might be punished, but the Belgian, Dutch and Swiss delegates strenuously opposed this. But their opposition seems to us to have been founded more on sentimental than on practical considerations. They did not dispute that if the population of an occupied territory rose, the invaders would probably treat them with severity, but they insisted that the government of the invaded country could not in advance sanction such treatment. But the experience' of all recent wars has shown that although the government of the invaded country may not sanction these severities, it is powerless to protect its subjects from them, as the weaker of the two belligerents cannot venture on reprisals, especially when part of its territory is in the other belligerent's occupation. It would, in our opinion, be more advisable candidly to tell the inhabitants of the occupied territories, "If you rise the enemy will punish you without our being able to prevent it," than to encourage or allow them to rise in the ignorant belief that they will be treated as belligerents, and then acquiesce in their being treated otherwise.- Solicitors' Journal.

BOOK NOTICES.

An Epitome of Leading Conveyancing and Equity Cases. By John Indemaur. Second edition, London: Stevens & Haynes, 1874.

This little book of about one hundred pages contains the substance of nearly eighty of the leading cases set forth in "Tudor's Leading Cases on Conveyancing" and "White and Tudor's Leading Cases in Equity," with some cases not found in these works. Mr. Indemaur has affixed notes to some of the cases, and a large margin is left for the insertion of notes by the reader. This book is uniform with the "Epitome of Leading Common Law Cases," which contained the substance of "Smith's Leading Cases." The object is to furnish a foundation and guide to the more thorough and complete examination of the law; and the book is particularly useful to the student. And we venture to assert that the best read practitioner or judge will find some law in the little volume which has escaped his attention in a more elaborate and enlarged form. As an illustration of the manner in which the author has done his work let us take the celebrated "Shelley's Case." Under the head of this case we find the following: "Decided, That where the ancestor takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs or the heirs of his body, the word 'heirs'

is a word of limitation, and not of purchase; so that the ancestor takes the whole estate comprised in the term; that is to say, in the first case, an estate in fee simple; in the second, an estate in fee tail. Notes.The above Rule in Shelley's Case' applies to equitable as well as legal estates; but where one limitation is legal and the other equitable, it does not apply." Then follows a blank space for notes by the reader. The Epitome of Equity and Conveyancing Cases will not be so universally useful in this country as the Epitome of Common-law Cases, our legislatures having made great inroads upon the equity department of jurisprudence. Nevertheless there is much of the equity and conveyancing law of England that is applicable in some of the States, and the book is at any rate valuable as a concise statement of the great principles of the branch of jurisprudence of which it treats.

New York Superior Court Reports. By Samuel Jones and James C. Spencer. Vol. XXXVII." New York: Diossy & Co., 1874.

The New York Superior Court is equal in rank with the Supreme Court, appeals being taken directly from this court to the Court of Appeals. The reports of the decisions of this court have now reached thirty-seven volumes; and the present volume is the fifth prepared by the present editors. The decisions of this court have always been considered of high authority. The judges pronouncing the decisions in this volume are Monell, Ch. J., Freedman, Curtis, Sedgwick, Van Vost and Spier, JJ., names that are well known in the State for distinguished judicial ability. Among the important cases in this volume we notice Hooper v. De Long, page 127. This was an action on a promissory note made by defendants, indorsed by the payees and subsequently by plaintiff, as an accommodation note; and plaintiff procured it to be discounted at a usurious rate of interest, and transmitted the proceeds to the prior indorsers, for whose accommodation the note was made. Plaintiff paid the note when it fell due and was protested, and brought this action against the makers. Held, that the note could not be enforced against the makers, it having no legal inception before it was discounted at a usurious rate of interest. Another important case is Ham v. Mayor of New York, page 458, in reference to the liability of a municipal corporation for misfeasance of its officers, when the misfeasance is in respect to a duty specifically imposed by statute on the officer, holding that the city of New York is not liable for the misfeasance of the commissioners of public instruction. The reporting is well done; and taken as a whole these reports still continue to be of great value to the profession.

Abbott's New York Digest. By Benjamin Vaughn Abbott and Austin Abbott. Vol. VI, New Edition. New York: Baker, Voorhis & Co., 1874.

Few law-book makers in the country have such enormous facilities for executing excellent work as the Abbotts. Their digests are particularly valuable; and the rapidity with which they place them before the profession is creditable alike to the authors and the publishers. The present volume completes the new edition of the New York Digest, and compares favorably in merit and style with previous volumes. This volume comprises a table of cases and an index. It is unnecessary to call the attention of the profession to the value of a good table of cases and index. In a

CORRESPONDENCE.

NOVEMBER 10, 1874.

DAWES BROTHERS.

[We have before on several occasions referred to the status of Wait v. Green, 9 A. L. J. 268; id. 279. Ballard v. Burgett is undoubtedly the law of this State. See Maynard v. Anderson, 54 N. Y. 641. The doctrine of Wait v. Green has been overruled; but the case itself has not. It still stands on its own facts.-ED. A. L. J.]

COURT OF APPEALS DECISIONS.

The following decisions were announced in New York Court of Appeals on Tuesday:

Judgments affirmed with costs-Mary Swords v. William Edgar; Rosetta Bedell v. William Shaw; John Driscoll v. The West Bradley and Cory Manufacturing Company; Alonzo Dutch v. Abraham Mead. -Judgment reversed and new trial granted, costs to abide event-The Farmers' Bank of Fayetteville v. Mark Hall and ano.— -Judgment of General Term and Special Term reversed and assessment vacated-The People ex rel. The Bank of Montreal v. The Commissioners of Taxes and Assessments of New York; The People ex rel. John Patton v. The Same.

--

Order of

General Term reversed and judgment on report of referee affirmed with costs-The Marine National Bank v. The National City Bank.- - Order of General Term reversed and judgment on verdict affirmed with costs The Bank of North America v. The National Bank of the Commonwealth. Order affirmed with costs The People ex rel. George H. Pressmeyer v. The Board of Commissioners of Police and Excise of Brooklyn; The People ex rel. Sarah Ann Splain v. The New York Juvenile Asylum.-- Order affirmed - The People v. Henry W. Genet; People v. William H. Florence; People v. Michael J. Quigg.- - Motion denied with $10 costs-The Manhattan Brass and Manufacturing Co. v. Henrietta H. Thompson.- Motion to dismiss appeal granted with $10 costs James Ward v. Philander A. Spencer.-Motion to dismiss appeal denied with $10 costs-John B. Scholey v. George Hart Mumford.

FOREIGN NOTES.

The grand jury at the Central Criminal Court have returned a true bill against Dr. Kenealy for an alleged libel on Mrs. Pittendreigh in the Englishman.—— In the year ending March 31, £27,900 was paid to the metropolitan police magistrates, there being twentytwo at £1,200 and one at £1,500 a year. A letter received from Ireland mentions a rumor prevailing in the four courts of Dublin to the effect that Mr. Disraeli will soon have a chief justiceship at his disposal. It is believed that Mr. Monahan, the Lord Chief Justice of the Common Pleas, will shortly retire from the position which he has so long and so honorably filled. The Law Times says the holders of railway contract tickets should feel more than ordinary interest in a case which will soon be submitted for the decision of a superior court, the material circumstances of the case being such as may arise again at any time. The North Staffordshire Railway Company summoned a Mr. Broadhurst on a charge of traveling without a ticket, and refusing to pay his fare. From the evidence given before the stipendiary magistrate at the Potteries Police Court, we gather that the defendant was the holder of a contract ticket between Fenton and Blythbridge. Having lost this ticket, he notified the fact to the company, and received another which would cover a week. The company, however, refused to issue another ticket unless he paid ten per cent upon the residue of the period for which the original ticket was granted. Thinking this demand to be unjust, he traveled without a ticket, and refused to pay his fare. Hence the present summons. For the railway company it was argued that a contract ticket holder, no less than an ordinary holder of a day ticket, is bound to produce his ticket on demand or pay the fare. For the defendant it was urged that such a claim as that made by the railway company was not tenable, inasmuch as the defendant had paid his fare when he took the lost ticket. The magistrate gave judgment for the company; but granted an application for a special case. No one can object to a railway company taking every reasonable precaution against fraud; but whether a superior court will support them in such a case as the present we have yet to learn.

Lord Chancellor Lyndhurst, than whom a more talented lawyer never sat on the Woolsack, had a decided penchant for society, and nothing delighted him more, during the hours of social intercourse, than to cast aside his dignity, entering freely into the spirit of fun, humor and repartee, kept up by the choice spirits around him. He could almost become a child in his gleeful moments, and when occasion served, as the following amusing anecdote will show: Lyndhurst was standing at an open window, looking on the Temple Garden, in a meditative mood, when a lady asked him what he was thinking about. "I was listening to those bells (the very Bow bells that called back Whittington were ringing at the time); they seem to be calling to me

"Turn again, Lyndhurst, dear,
Three times Lord Chancelleer.'"

All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

in all suits, where the cause of action arose from the wrong-doing of the wife, the husband must be joined; for the common law adopting the principle of the

dressed to the publishers.

The Albany Law
Law Journal.

ALBANY, NOVEMBER 28, 1874.

LIABILITY OF A MARRIED WOMAN ON TORT.

Recent enactments in this State have not only affected the rules of the common law, in respect to the liability of a married woman on contract, but have as well modified, and considerably altered the same rules as to her liability for her torts. It was what might be expected that the exclusive ownership of property would necessarily involve corresponding liabilities and accordingly the courts, in construing these "Enabling Statutes," as they are termed, have felt bound to depart from the ancient rules, and affix on a married woman a liability unknown to the common law. It gives not a little confusion to the lawyer to discover this liability, after being so accustomed to view a married woman under the commonlaw doctrines as s sort of legal nonentity. It is now proposed to examine this subject, and endeavor to ascertain the precise position of the married woman in reference to her torts, as we have formerly attempted to do in reference to her contracts. (A. L. J., vol. x, p. 81.)

It is to be understood at the outset that we only refer to the liability for damages in a civil action for a tort, at the instance of the person damaged. First, it will be well to ascertain the common-law doctrine in reference to this liability, and next inquire how far the common-law rules are still binding, and how far they are modified by our statutes.

Generally, it may be said that a married woman was not liable for torts to a person injured; such person had action against the husband if he were with the wife at the time of the commission of the tort (Reeve's Dom. Rel. 72; 2 Kent's Com, 149), or against husband and wife joined, if the tort were committed by the wife alone; but the execution is against the husband's property alone, he being possessed of the property by right of the marriage.

We are informed that the reason of joining both in the action was, that if she alone were sued, it might be the means of making the husband's property liable without giving him an opportunity of defending himself. (Bac. Abr., Baron and Feme, L.)

For the wife's offenses against the laws where the punishment inflicted is nothing more than a fine, the husband is liable with the wife in all cases. (Reeve's Dom. Rel. 73; Bac. Abr., Baron and Feme, L.)

It was an invariable rule of the common law that

consistently insisted upon this; and the principle is still retained, notwithstanding the many alterations and modifications in the rights and liabilities incident to marriage by recent legislation. A very good and beneficent principle of the common law was the immunity it gave to a married woman from arrest in all civil actions. 1 T. R. 486; 2 H. B. 17; 1 Duer 116; Schaus v. Putscher, 25 How. 463.

It was also a rule of the common law that if capias lies in process; then after judgment capias ad satisfaciendum will lie; and as a married woman could not be arrested by capias so she could not be arrested at all on execution except she had separate property, and the debt ought in equity to be paid by her. 3 Salk. 286; Hovey v. Starr, 42 Barb. 435.

It will be unnecessary to treat further of the common-law rules; we shall now inquire what alterations or modifications have been introduced by our recent statutes.

It has been held in many decisions, that notwithstanding the enlarged privileges given to married women, and the curtailing of the many rights of the husband, that he is still liable, as he was under the common law, for the wife's torts. Baum v. Mullen, 47 N. Y. 577. But when the tort or damage is committed by the wife in the management or control of her separate property, that property will be liable for damages to the injured party. So, when a fraud was committed in the sale of the wife's real estate by her husband as her agent, she alone is liable. Baum v. Mullen, supra. And accordingly it was held that the wife was liable for damages committed upon another's property by her cattle, according to act of 1860. Rowe v. Smith, 45 N. Y. 230.

Where the wife has no separate property, the husband is just as liable as formerly, and must be united with her in action on tort. Kowing v. Manly, 49 N. Y. 192. In the last case, Rapallo, J., said: "The liability of a husband in such a case does not rest upon the ground that he is, in contemplation of law, guilty of the taking or conversion, but results from the incapacity of the wife to be sued without her husband." Cupel v. Powell, 17 C. B. 744. All the decisions since the adoption of the Code and the recent enactments, have acknowledged the binding force of the old common-law rules as to the husband's liability for the wife's torts. Thus Campbell, J., in 1 Duer, 613, laid it down: "That no order of arrest against husband and wife, for an assault by the wife alone, would lie; that the Code, in section 179, has not altered the rule of the common law, which exempts a married woman from arrest in all cases whatever; that the Code, in its reasonable construction, does not authorize the arrest of the husband in any action founded upon the contract or tort of the

wife." To the same effect Baldwin v. Kimmel, 16 Abb. 353.

The position of the husband under our law at present is just this, that while he has been stripped of the former rights and privileges acquired by the marriage, he is still liable, as formerly, for his wife's torts, and a reckless or intemperate wife may, by her wrong-doing, involve him in a heavy liability; with this qualification, however, if the tort be committed by the wife in the management of her property, or in connection therewith, as if she suffer a nuisance from her land to be committed; or if, in controlling her property, she, her servants or agents, cause injury; or if, in carrying on any business, a party is damaged thereby, her property alone will be liable. It would hardly require any positive enactment to give this right as against her; it ought to result ex necessitate from the enlarged powers conferred by legislation; and courts have recognized this principle in their adjudications, in fixing this liability. Rowe v. Smith, 45 N. Y. 230; Baum v. Mullen, 47 id. 577; Kowing v. Manly, 49 id. 192.

It may be inquired if an execution against the person of a married woman can issue under our practice at present. The Code, in section 287, gives a right of execution against her separate property, and not otherwise. Hence it is held that no execution can issue against a married woman, except an execution against her property, even if the action be one of those in which an order of arrest can be had at the commencement. Hovey v. Starr, 42 Barb. 435. This is observing a principle of the common law, that where capias would not lie there after judgment, capias ad satisfaciendum would not lie. 3 Salk. 286.

It is, however, said in Marsh v. Potter, 30 Barb. 506, "that on judgment in action for a tort against husband and wife, execution may be issued against the property of both, and if returned unsatisfied, an execution may issue against the persons of both." This, however, was obiter, and was not at all involved in the case, and is not supported by authority.

JOHN PROFFATT.

LATERAL AND SUBJACENT SUPPORT OF
LANDS.
IV.

There are frequently two freeholds in the same estate, one in the surface, and another in the minerals beneath; and the rights of parties thus situated, in reference to their several estates, often becomes an important subject of inquiry, particularly in mining districts. These estates are created by the owner of the entire freehold selling the estate, reserving the minerals beneath, or selling the minerals, reserving the surface. Of course, the natural rights of the parties to such estate may be varied or changed by the conditions of the conveyances, and such rights reserved to one or given to another, in reference to the

uses of the several estates, as the grantors thereof elect.* The right to the minerals reserved is a right to land, but a right to work mines in another man's lands is an easement. But when there is a simple conveyance of the surface, reserving the mines, with the right to enter upon the surface to work the same, and no express power given or reserved to produce a subsidence of the surface, if necessary in the working of the mines, the person owning the minerals is bound at his peril not to cause a subsidence of the surface, even though he cannot work his mines at all without doing so; and no degree of care or skill exercised in the mining operations will shield him from liability to the owner of the surface for all damages sustained by reason of any subsidence thereof.‡ A custom, as between the owner of the surface and the owner of the nines, entitling the owner of the mines to cause a subsidence of the surface, if necessary to the working of the mines, will not be operative to shield the mine owner from liability - and such a custom has been held bad and wholly void. § There are some English cases in which such a custom was measurably sustained, but they seem to have been overruled by the later cases; and it seems to be well settled that, in the absence of an express contract, the owner of the minerals cannot remove them without leaving sufficient support to maintain the surface in its natural condition, and that if the mine owner so weakens the support of the surface, by the removal of the minerals, as to cause its subsidence, he is liable for all the damages that ensue therefrom. He may take out so inuch of the minerals as he can without causing a subsidence of the surface, but is bound at his peril not to go beyond that point. T

In Harris v. Ryding, 5 Mees. & Wels. (Exch.) 60, a question came before the court as to the rights of a mine owner and the owner of the surface under a conveyance from the defendant, in which he reserved

*Hartwell v. Camman, 2 Stockt. (N. J.) 128; Stewart v. Chadwick, 8 Clarke (Iowa), 463; Caldwell v. Copeland, 87 Penn. St. 427; Merritt v. Judd, 14 Cal. 49.

+ Wilkinson v. Proud, 11 M. & W. 33.

Wakefield v. Duke of Buccleugh, 4 L. R. (Eq. Ca.) 613; Humphries v. Brogden, 15 Jur. 124; 1 Eng. L. & Eq. 241; 20 L. J. (N. S.) Q. B. 10.

& Hilton v. Lord Granville, 5 Q. B. 701; Blackett v. Bradley, 1 Best & Smith, 940; Wakefield v. Duke of Buccleugh, 4 L. Ř. (Eq. Ca.) 651; Constable v. Nicholson, 14 C. B. (N. S.) 230.

Bateson v. Green, 5 T. R. 411; Artlett v. Ellis, 7 B. & C. 346; Folkard v. Hammett, 5 T. R. 517.

Humphries v. Brogden, 15 Jur. 124; 20 L. J. (N. S.) 10; 1 Eng. Law & Eq. 241; 12 Q. B. 739; Harris v. Ryding, 5 M. & W. 60; Smart v. Morton, 5 E. & B. 30; Peyton v. Mayor of London, 9 B. & C. 725; 7 L. R. (K. B.) 322; Partridge v. Scott, 3 M. & W. (Exch.) 220; 7 L. J. (N. S.) 104; Rowbotham v. Wilson, 8 H. L. Cas. 348; Hamer v. Knowles, 6 H. & N. 458; Bonomi v. Backhouse, E. B. & E. 622; Jeffries v. Williams, 1 Eng. Law & Eq. 436; 5 Exch. 792; Proud v. Bates, 34 L. J. (Ch.) 406; Dugdale v. Robertson, 3 K. & J. 695; Berkly v. Shafte, 15 C. B. (N. S.) 79; Richards v. Harper, L. R. (Ex.) 199⚫ Elliott v. N. E. R. R. Co., 10 H. L. Cas. 333.