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To the Editor of the Albany Law Journal:

Does chap. 314, Laws 1858, give to a voluntary assignee the right to attack for fraud as against creditors a previous transfer by the assignor? This question is an important one since the repeal of the Bankrupt Act, and yet I cannot find that it has ever been decided by our courts.

The statute is referred to in Fort Stanwix Bank v. Leggett, 51 N. Y. 552, 554, but this question receives no discussion. Miller v. Halsey, 4 Abb. (N. S.) 28, does not touch this point. The dictum, at page 33, relates only to the fraud of the assignor in retaining and concealing assets from the assignee. I am aware that Burrill in his work on Assignments, and Bishop in his book on Insolvent Debtors, state that this statute applies to cases of voluntary assignments, but they cite no authorities supporting it.

Previous to this statute it was well settled that a voluntary assignee could not set aside such transfers, nor receive the fruits of them after they were set aside by creditors. Brownell v. Curtis, 10 Pai. 211, 219; Browning v. Hart, 6 Barb. 91. The reason given is that the assignee took only such rights as the assignor had, and of course the assignor could not impeach such transfers.

The Legislature, undoubtedly, had the power to give this right to voluntary assignees, however unwise it may be to exercise that power. But it seems to me clear that the plain intent of the act referred to is to give this right to those assignees only that are appointed by the court under the insolvent act. 2 R. S., p. 21, § 27. The second section omits the word "assignee," and speaks only of executors, administrators, receivers or other trustees" of a "deceased person, or insolvent corporation, association, partnership or individual." A voluntary assignee is nowhere called a "trustee" of an insolvent. On the other hand it was held in Ferriss v. Am. Ins. Co., 22 Wend. 586, that such an assignee is not a "trustee of a debtor" within the meaning of the statute regulating security for costs; but that an assignee appointed by the court under the insolvent act is such a trustee.

If this statute applies to voluntary assignees, what a temptation it holds out to debtors to make fraudulent transfers of property, then make a general assignment to an assignee of their own choosing who will lend himself to the trick of bringing suits, ostensibly to set them aside, but really to procure a decision upholding them, and which shall be conclusive on the creditors (4 Barb. 232), except they can prove the conspiracy between the assignor and assignee. B. UTICA, July 1, 1880.

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NOTES.

E forgot last week, in connection with our correspondent's letter about "Contracts to Satisfaction," ante, 20, to explain ourselves. What puzzled us was not the position of the appellate court, as reported in 45 Conn., but to see how the trial court, in the face of the decision of the appellate court, in 44 Conn., could have rendered the judgment they gave on the new trial; for it is scarcely conceivable that the facts could meantime have wheeled about. Perhaps "T. C. J." can explain this

We regret to learn that Mr. Grattan, the old and well-known reporter of the Virginia Court of Appeals, is in feeble health. He has completed his labors to Feb. 19, 1880, and announces that these will be his last. His familiar name and faithful service will be missed.

Among other valuable matter, the Virginia Law Journal for July contains a leading article on Impeachment of Witnesses. Judge W. R. Staples, of the Virginia Court of Appeals, writes us: "I desire to congratulate you on the ability with which the JOURNAL is conducted, and the reputation it has established throughout the country In this State it stands deservedly high both with the bench and the bar."

The most extensive and important enterprise in legal reporting in this country is that of the West Publishing Company, at St. Paul, Minn. We have received the 1st volume of the new series of their North-western Reporter, containing 1,089 pages and 337 cases in full, being all the decisions of the Supremo Courts of Minnesota, Wisconsin, Iowa, Michigan, Nebraska and Dakota, from April 26, 1879, to August 30, 1879. These' are issued in weekly parts, and give the opinions, as soon as filed, at $5 a year. The price of this volume is $2.50. In addition, this company issue supplements of the same character, giving the full opinions of the Supreme Courts of Ohio, Illinois, Missouri, Indiana, Kentucky and Kansas, at $3 a year each, separately, or with the Reporter, as follows: Reporter and one supplement, $8; Reporter and two supplements, $11; Reporter and three supplements, $14; Reporter and six supplements, $15; including indexes, tables of cases and postage. They also issue, in like manner, the Federal Reporter, giving the opinions in full of all the Federal Circuit and District Courts throughout the United States, at $10 a year. The editing and publishing are well done, and tho enterprise deserves the success which we are informed it meets.

Several days ago a white man was arraigned before a colored justice, down in the country, on charges of killing a man and stealing a mule. "Wa'al," said the justice, "de facts in dis case shall be weighed wid kerefulness, an' if I hangs yer, 'taint no fault ob mine." "Judge, you have no jurisdiction only to examine me." "Dat sorter work 'longs to the regular justice, but yer see I have been put on as a special. A special hez de right to make a mouf at Supreme Court if he chuses ter. "Do the best for mo you can, judge." "Dat's what I'se gwine to do. I'se got two kinds of law in dis court, the Arkansaw an' de Texas law. I generally gives a man de right to choose fur hisself. Now, what law does yer want, de Texas or de Arkansaw?" "I believe I'll take the Arkansas." Wall, den, I'll dismiss you fer stealing de mule - -""Thank you, judge." And hang you fer killing de man-" "I believe, judge, that I'll take the Texas." "Well, den, I'll dismiss you for killing de man --' "You have a good heart, judge." "An' hang yer for stealing de mule. I'll jus take de 'cashion here to remark dat de only difference 'tween the two laws is der way yer state de case."- Little Rock Gazette.

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The Albany

Albany Law
Law Journal.

THE

ALBANY, JULY 24, 1880.

CURRENT TOPICS.

THE London Law Journal says of the recent de-
cision in the Tichborne claimant's case:
"It

can hardly be said that Regina v. Castro decides.
much, except, as Lord Justice James compendiously
expressed it, that there is nothing in' the objec-
tions taken to the indictment. We think that there
was something in' at least one of the points taken;
and at all events, the argument is of interest to law-
yers, as going over very obscure ground seldom
traversed by so high an authority." "We confess
that the judgment of the Court of Appeal on this
point is disappointing in its tone. The reductio ad
absurdum seems to us to have been out of place."
"It is not unreasonable that there should be a dis-
tinct trial for every imposition of a distinct seven
years.' "It is fairly open to argument that the
practice is in some cases hardly fair to the prisoner."
The Solicitors' Journal says: "It does not seem to
us altogether absurd to contend that under these
words there can be only one sentence on one con-
viction, and that there can only be one conviction
for this purpose at one and the same trial." The
Law Times does not commit itself to an opinion,
but says, "the lords justices were unusually severe
upon the principle upon which that case proceeded"
- meaning the Tweed case. In the next breath it
says, "it does not appear, indeed, that the ratio
decidendi of that decision was clearly stated."

freedom from such connections, and says that if
we are wise (though, as an American, he would be
proud to see us all under the Stars and Stripes), we
will remain unannexed as long as the corruption of
public morality and the betrayal of high office to
ambition and gain continues as he has represented
it and as Mr. Frost's case proves it to be." The
American gentleman who could seriously utter such
nonsense as this did well in carrying his wares to a
Let not the hysterical editor of
foreign market.
the high latitudes be alarmed. We have foolish citi-
zens enough without wishing to annex him. On the
subject of annexation, Canada is always as nervous
as the elderly lady at the siege in Don Juan, who
inquired, "when will the ravishing begin?" Let

the Gazetteer hide his fevered and timorous brow in
the snows of Labrador, and shout his compatriot's
grievances to the inhabitants of the north pole, who
may possibly think him right. An esteemed corre-
spondent, who sends us this amusing extract, a law-
yer of experience and high standing in Canada,
writes us: "You will be better able to deal with it
than I, whose only means of judging are the ex-
ceptionally learned and able opinions of the New
York bench which appear in your columns." We
assure our friend it is no more possible to deal seri-
ously with such midsummer madness as this, than
with the ravings of a lunatic who should complain
that the man in the moon was making faces at him.

The Honorable George McCormick, attorney-general of Texas, has transmitted to the governor an interesting report concerning the enforcement of the criminal law in that State. We extract the following comparative statements of indictments and convictions for four years:

Indictments:
Murder...
Theft.

Arson.

Forgery..
Burglary..

Total...

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Perjury..

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Rape..

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Robbery..

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Convictions:

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Arson..

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Perjury...

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The fool-killer should go at once to the office of the Montreal Gazette. In the issue of that precious newspaper of July 13th is a long article, entitled "Justice in the State of New York." The text of the article is the pretense of one Frost, a native of England and a naturalized citizen of the United States, attorney and counsellor of this State and resident in New York city, that he has been unlawfully imprisoned on civil process for four years, and that the judges have connived at the injustice, and persistently denied him the writ of habeas corpus, and issued stays and prohibitions and injunctions most wickedly. Frost does not tell why he is imprisoned, but he ought to know that every judge refusing him the writ of habeas corpus, when legally applied for, is liable to forfeit $1,000 to him for every refusal. We advise Frost to set this machinery in motion, and if he is unlawfully imprisoned, we will furnish him a lawyer to vindicate his rights. | Rape... But the Gazette continues: "An American gentleman of position, probity and intelligence, says that in the State of New York almost every judge is a huckster who sells his decisions for money, for favor or for political influence, that few decisions are unpurchased and that were one-tenth of the rascality practiced by the judiciary told, it would not be credited. In conclusion he congratulates us on our VOL. 22. No. 4.

Murder..

Theft.

Robbery..
Forgery..
Burglary..

"It will thus be seen," says the attorney-general, "that for the eight species of crime named there

were, in 1875, 4,515 indictments presented, and 1,177 convictions had, being about one conviction to every four indictments. In 1877 there were 3,130 indictments and 641 convictions, being about one conviction to every five indictments. In 1878 there were 3,548 indictments and 799 convictions, the ratio of | convictions to indictments being about the same as during the preceding year. For the year just past there were only 2,942 indictments for these crimes, while there were 907 convictions, being nearly one conviction for every three indictments. This statement shows not only a decrease as to the number of crimes committed, but also a corresponding increase in the number of convictions had, and argues well for those charged with the execution of the law, besides showing that crime is greatly on the decrease in our State." It is noteworthy, however, that the decrease is mainly in the crime of theft. Murder has not decreased, but comparing the last two years with the first two, it has greatly increased, showing 893 as against 729. Is it possible that there is some foundation for the colored judge's remark, which we published last week, that in Texas they hang a man for stealing a mule, and only imprison him for murder? The convictions for murder of late, however, have more than kept pace with the increase of the crime, and there can be no doubt that the good men of the State are seriously trying to render life and property safe there.

It will interest the members of the profession in this State to know that, at a recent meeting of the trustees of the State Library, a subject-index catalogue of the law library was directed to be made. The matter was brought to the attention of the trustees by a communication from Mr. S. B. Gris

wold, the law librarian, in which he states that "there are at the present time upon the shelves of the law library 13,500 volumes, and 2,500 trials and law pamphlets, which are not embraced in any catalogue available for use by readers in the library.' Mr. Griswold proposes that the new catalogue "shall contain not only the treatises and reports, but also civil and criminal trials, essays, opinions, arguments and leading articles in the standard law periodicals, properly classified and arranged under their respect ive subjects." It is also his intention to include in the catalogue an index to the more important official reports on leading topics of legislation that are contained in the 14,000 volumes of State papers which form a part of the law library collection, thus enabling members of the Legislature to consult these volumes which now stand upon the shelves unused. It is estimated that it will take the librarian two years to prepare the proposed catalogue. In view of the increased labors of the librarian, Mr. H. E. Griswold has been appointed an assistant in the law library. The preparation of this catalogue could not have been committed to more competent hands, and the scheme proposed by Mr. Griswold is unique in usefulness. There is a vast amount of interesting and important matter now practically inaccessible in legislative reports and law periodicals.

The heathen Chinee has scored another victory. In the cases of Ah Chong, Wong Hoy, Ah You, Foo Hoy, Foo Hee, and Ah Mee, in the Federal circuit for the district of California, 5 Pac. C. L. J. 451, it was held that a statute of California prohibiting all aliens, incapable of becoming electors of the State, from fishing in the waters of the State, is unconstitutional and in conflict with the treaty with China. The court distinguish McCready v. Virginia, 94 U. S. 341. They say: "Citizens of other States having no property right which entitles them to fish against the will of the State, a fortiori, the alien, from whatever country he may come, has none whatever in the waters or the fisheries of the State. Like other privileges he enjoys as an alien by permission of the State, he can only enjoy so much as the State vouchsafes to yield to him as a special privilege. To him it is not a property right, but in the strictest sense, a privilege or favor. To exclude the Chinaman from fishing in the waters of the State, therefore, while the Germans, Italians, Englishmen, and Irishmen, who otherwise stand upon the same footing, are permitted to fish ad libitum, without price, charge, let, or hindrance, is to prevent him from enjoying the same privileges as are enjoyed by the citizens or subjects of the most favored nation;' and to punish him criminally for fishing in the waters of the State, while all aliens of the Caucasian race are permitted to fish freely in the same waters with impunity and without restraint, and exempt from all punishments, is to exclude him from enjoying the same immunities and exemptions 'as are enjoyed by the citizens or subjects of the most favored nation;' and such discriminations are in violation of articles V and VI of the treaty with China, cited in full in Parrott's case. The same privileges which are granted to other aliens, by treaty or otherwise, are secured to the Chinaman by the stipulations of the treaty. Conceding that the State may exclude all aliens from fishing in its waters, yet if it permits one class to enjoy the privilege, it must permit all others to enjoy, upon like terms, the same privileges whose governments have ileges granted to the most favored nation." treaties securing to them the enjoyment of all priv

THE

NOTES OF CASES.

THE Vienna "Juristische Blaetter" reports an important decision on insurance law. A. had obtained an insurance on the roofs of certain buildings, clothes, bedding, corn and household goods. Each item was insured for a certain amount, separately, but only one policy was issued. A fire occurred, and A. was afterward convicted of fraud attempted against the company, by concealing articles which he had saved, and claiming insurance therefor, and by stating that other articles were destroyed, which he never possessed. One of the conditions of the policy (§ 26) was, that the same should be wholly avoided, and the holder should lose all claim for compensation, if he should be found guilty of fraud in regard to the object in

sured, or if he should conceal articles saved, and ask pay for them, or if he should rate his loss too high, and state that more was lost than what was in existence at the time of the accident. On these grounds the company refused to pay A. any thing, while he claimed that he should be compensated at least for the loss of the roofs, in regard to which he had not been guilty of any of the acts mentioned in the policy, and the injury to which had been estimated by the company's agents at 254fl., 7kr. So he brought his action for that sum, and the company defended on the ground of fraud under section 26 of the policy. The Austrian Imperial Supreme Court held the company liable, on the ground that the insurance of the various articles at separate amounts, though all in one policy, was to be considered like a separate insurance on each article, by separate policies, and that the conditions applied only to those articles in regard to which there had been fraud. Contra: Moore v. Virginia F. & M. Ins. Co., 28 Gratt. 508; S. C., 26 Am. Rep. 373. The question whether a breach of warranty as to one of several subjects separately insured in the same policy avoids the policy altogether, is answered in the affirmative in Schumitsch v. American Ins. Co., Wisconsin Supreme Court, Jan., 1880, and in the negative in Merrill v. Agricultural Ins. Co., 73 N. Y. 452; S. C., 29 Am. Rep. 184. See, also, note to the Wisconsin case, 9 Ins. L. J. 56. This case also illustrates how speedily the Austrians obtain justice. A. commenced his action in the Circuit Court, May 31, 1879; it was there decided December 23, 1879; on appeal the Supreme Court of Bohemia decided it Jan. 27, 1880, and ultimately the Imperial Supreme Court, April 22, 1880.

mental condition of the recipient, to ascertain if his mind was in a proper state to reason or act of his own volition; that the sacraments could only be administered after such a preliminary examination; and that therefore, as a priest, he was daily required to exercise and pass his judgment on the mental condition of persons.' It has been shown by the authorities already referred to that physicians in general practice who have never made a specialty of the subject of insanity, as well as physicians who are not engaged in the practice of their profession, and also nurses, are deemed experts on this subject; and on what principle or for what reason could the witness Serda be held not to be an expert? It was a part of his collegiate education, and it was specially a matter of daily practice with him for ten years to familiarize himself with the mental condition of persons upon whom he was called on to attend in his character as a priest; and it does seem to us that from both education and experience, he was peculiarly qualified to express an opinion as an expert on the question of mental disease."

C. 459, A. was injured while crossing a street in a In Borough of Norristown v. Fitzpatrick, 8 W. N. borough, by the firing of a cannon by a crowd of men. The jury found in a special verdict that the firing had been going on for some hours, without any special authorization from the borough authorities, and that a policeman standing by at the time did not interfere to stop it. The borough was specially directed by act of Assembly to appoint policemen to preserve the public peace, remove nuisances, etc. In an action by A. to recover damages for said injuries, held, that the borough was not liable. After showing that the borough was not liable for the negligence of the police officers, the court continue: "Then upon what ground can the defendant be held liable for the damages suffered by the plaintiff? Certainly not upon any principle of common law, for we all know, that for damages re

The case of Toomes' Estate, California Supreme Court, April 7, 1880, 10 Rep. 10, should be added to our chapter on the powers of the clergy. It is there held that a Roman Catholic priest, regularly educated and officiating as such, and constantly required by the duties of his office to pass his judg-sulting from the conduct of a mob or unlawful ment upon the mental condition of invalids and dying persons, to the end that he may administer the sacraments only to those whose minds are in a proper state to reason or act of their own volition, is an expert as to the sanity of a person. The court said: "Was the witness Serda an expert on the question of insanity? Was he skilled in the science of mental diseases? A reference to his evidence will answer these questions. He says he was regularly educated in a college of Spain, and had officiated as a priest for ten years; that it was a part of his preparatory education to become competent to pass upon the mental condition of communicants in his church, and for that purpose physiology and psychology were branches of his studies; that previous to his officiating as a priest, it was requisite that he should be skilled in determining the mental condition of those who sought the sacraments; that in every case of the administration of the rites of his church to invalids or dying persons it was necessary for the priest to make an examination of the

assembly, neither city nor county, borough nor township can be held, except by special statute. Is it then on the ground that the assemblage complained of obstructed the public street, and so became a nuisance which the borough was bound to remove? But the difficulty of supporting the case on this theory is twofold: first, the jury has found that the street was not so obstructed that persons could not readily pass and repass, and that the injury resulted not from any such obstruction, but from the act of firing the gun; second, admitting that a mob is a nuisance, and that of the worst kind, nevertheless, it is one that a municipal corporation cannot abate by the use of ordinary appliances, such as suffice for the removal of natural or material obstructions in or near a highway; resort must therefore be had to the police force, but as we have already seen, for the doings or misdoings of those who compose this force, the municipality is not liable. The difference between those cases in which cities, boroughs, and townships have been held responsible

for neglect, and the one in hand, is very wide; class. The circumstance that the beneficiaries are the maintenance and repair of highways, sewers, to be of a particular religious faith is only of imwharves, etc., belong to their immediate jurisdic-portance as designating the class. It indicates a tion, and over them they alone have control, hence certain portion of the whole community who are to their responsibility. But the conservation of the be recipients of the charity. It has the same effect peace is a great public duty, put by the Common- in this respect as the words seamen, stonemasons, wealth into the hands of public officers-the blind persons, poor widows, etc., in the cases aljudges, justices of the peace, and mayors, the gov-ready mentioned. For the purpose of defining the ernor, sheriffs, constables, and policemen; hence cities and boroughs can no more be charged with damages, resulting from their misconduct, than can counties, townships, or the State at large." The same is held as to misfeasance of public officers, in Pollock's Adm'rs v. Louisville, 13 Bush, 221; S. C., 26 Am. Rep. 260, and cases referred to in latter report; also in Grumbine v. Mayor, 2 McArthur, 578; S. C., 29 Am. Rep. 626. Very similar to the principal case in the circumstances and holding was Boyland v. Mayor, 1 Sandf. 27.

class of persons, who, as distinguished from all other persons in the community, are to enjoy the benefits of the donor's bounty, the legal effect is the same, whether the words used be seamen, Episcopalians, blind persons, poor widows, Jews, stonemasons, or Presbyterians." The court also observed that there was no proof, and they could not assume, that the preference of Episcopalian children would exhaust the capacity of the institution. In Delaware County Institute of Science v. Delaware County, 8 W. N. C. 449, the same court held that an institute of science whose object is the "promotion and diffusion of general and scientific knowledge among the community at large," but whose benefits are restricted to its members except at the pleasure of its managers, is not a "purely public charity," and is not therefore exempt from taxation as such.

66

A

III.

PPENDAGE" was defined in School District v.

Perkins, 21 Kans. 536; S. C., 30 Am. Rep. 447, where a stereoscope and stereoscopic views were held not to be "necessary appendages" to a school-house. The court said the word "would seem to refer to things connected with the building or designed to render it suitable for use as a school-house."

In Burd Orphan Asylum v. School District of Upper Darby, 8 W. N. C. 446, to which we referred, ante, p. 42, the question was whether an asylum, for admission to which children of Episcopalians were to be preferred, was a "purely public charity." The court observed: "Now it must be conceded, and it has been decided here and elsewhere, that the word 'purely' is not to have its largest and broadest sig- | LEGAL DEFINITIONS OF COMMON WORDS. nificance when used in this connection. In the op posing line of thought it is admitted that the word is to have a limited meaning. It is not contended that a charity to be purely public must be open to the whole public, nor to any considerable portion of the public. Without doubt, an asylum for the support of fifty blind men, or an equal number of paupers, would not be obnoxious to the objection that it was not 'purely public.' A charity for the maintenance of disabled seamen, or of aged and infirm stonemasons, resident in the city of Philadelphia, would undoubtedly be a purely public charity; and so also would a charity for the education and maintenance of the children of such persons. And if such a charity should be limited to the white female orphan children of such persons between the ages of four and eight years, such limitations, though they would very greatly restrict the class and the number of the beneficiaries, would constitute no valid objection to the purely public character of the charity. But seamen and stonemasons are only designated classes of persons, distinguished by their occupations. A charity for the support of poor widows, or indigent old men, or the insane poor, of a city, county, borough, or township, would be equally a purely public charity, no matter how small would be the number of the beneficiaries, or how limited the class. Why then would not a charity for the support of poor Episcopalians, Catholics, Jews, or Presbyterians, of a State or city, be purely public; or a charity for the education and maintenance of the orphan children of such persons? | No private gain or profit is subserved, the objects of such a charity are certain and definite, and the persons benefited are indefinite within the specified

We have had a definition of "rainy day," 21 Alb. L. J. 186. Now we find one of "fine day," in McAndrew v. Whitlock, 52 N. Y. 40. On the day in question it rained till 9 A. M., then cleared up, but rained again about 2:30 P. M., and from 4:30 P. M. all the rest of the day and night. Held, not a "fine day."

The most direct route of travel between A. and T., within a statute giving the sheriff mileage for conveying prisoners to the penitentiary, is the railroad, although it is 64 miles long, while the highway is but 35. Maynard v. Cedar County, Iowa Supreme Court, June 13, 1879, 1 N. W. Rep. (N. S.) 701.

A temporary ailment is not a "disease," within the meaning of a warranty against disease in a policy of life insurance. As where the warranty was against "disease of the liver," but the assured had had temporary attacks of congestion of the liver, from which he recovered. Cushman v. United States Life Ins. Co., 70 N. Y. 72. In like manner hardening of the brain is not "insanity." Newton v. Mut. Ben. L. Ins. Co., 76 N. Y. 426; and insanity is not "sickness."

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