HOMICIDE-DRUNKENNESS-MISTAKE IN IDENTITY. The only reason assigned for the cruel and reckless murder is that at the time of the killing the accused was under the influence of liquor. This is no excuse for crime; and to hold that the commission of one wrongful act is an excuse or mitigation of a still greater offense would be to license the reckless violators of the law to seek revenge in taking the lives of those who had inflicted upon them either actual or imaginary injuries. Insanity, when established, constitutes a defense when one is charged with crime, because the accused is in such a condition as not to know right from wrong, or that it was wrong to take human life; but when using stimulants that inflame the passion for the time being, and embolden one to do that which he would not do if sober, affords no excuse, nor does it lessen the degree of the offense. It is argued by counsel for the accused that he supposed he was shooting at the one man when he killed the other, and for that reason the offense was manslaughter, and not murder; or that his intoxicated condition reduced the degree of the offense, as the killing of either Anglin or the conductor was not contemplated by the accused. Taking any view of the questions raised by counsel, the crime committed was that of murder, and the accused could only have been acquitted on the ground of insanity. Ky. Ct. App., Sept. 18, 1886. Burchett v. Commonwealth. Opinion by Pryor, C. J. EXECUTORS AND ADMINISTRATORS-TITLE TO ASSETS -ACTS BEFORE APPOINTMENT.-An administrator is a mere officer of the law, and his title to the assets of the estate is official, and not personal, and cannot be af fected to the prejudice of the estate by any acts of his prior to his appointment. Any other rule would be a very dangerous one. It would put it in the power of the widow or other person, by first wrongfully intermeddling with or disposing of the assets, and then obtaining letters of administration, to squander the whole estate, and defraud both creditors and next of kin out of their rights. 1 Pars. Cont. 132: Doe v. Glenn, 1 Adol. & E. 49; Wilson v. Hudson, 4 Harr. 168; Gouldsmith v. Coleman, 57 Ga. 425; Leber v. Kauffelt, 5 Watts. & S. 445; Gilkey v. Hamilton, 22 Mich. 282. Minn. Sup. Ct., July 7, 1886. Wiswell v. Wiswell. Opinion by Mitchell, J.

FRAUDULENT CONVEYANCES-WHEN GOOD AS TO PARTIES.-Where by statute a sale or assigument of property by a debtor to defraud his creditors is declared void as to such creditors, and it is made a penal offense for any person to be a party to such transaction, such a transaction is yet good as between the parties to it. It is suggested that the attention of this court was not called to this provision of law, which was then in force when the case of Clemens v. Clemens, 28 Wis. 637, was decided, and it was urged by the learned counsel for the appellant that this section is inconsistent with the ruling in that case, and that this statute brings the case within the rule stated in Melchoir v. McCarty, 31 Wis. 252, and Clark v. Lincoln Lumber Co., 59 id. 655. The rule there laid down is "that a contract made in violation of a statute is void, although the statute fails to provide expressly that contracts made in violation of its provisions shall not be valid." It is also held that the imposition of a penalty for doing an act is in general equivalent to a prohibitory act. Benjamin, in his work on Sales (vol. 2, p. 707 [4th Am. ed.]) says: "Whereever the law imposes a penalty for making a contract, it impliedly forbids parties from making such a contract." See cases cited in note 26. It will be seen by an examination of the statutes of the States in which the courts have beld contracts of the nature in question valid as to the parties, many of them have also a statute similar to the penal statute above quoted, and in England

there is and was a similar provision. But it is held that notwithstanding this penal statute for punishing parties who attempt to defraud creditors by a transfer of the property of the debtor, such contracts are good as between the parties. If there were no law regarding such contracts except the penal act, the rule stated by this court in the case above quoted would apply, though the penal act does not expressly prohibit the making of the contract, on the presumption that the Legislature intended to absolutely prohibit the making of such contraet, and so render them void as to the parties; but the same Legislature which passed the penal act says that such contracts, when made, shall be void only as to creditors of the grantor, and by the strongest implication, that they shall be valid as to all other persons. The courts have, in the interest of morality and a sound public policy, refused to enforce contracts made in violation of law; and generally have refused to enforce them when the law simply punishes the making of certain contracts, upon a presumption intended that the law-making power that all such illegal and punishable acts should be void when there is nothing in the law showing a contrary intent. In this case however the law-making power has declared that contracts of the nature in question shall be void only as to creditors, and good as between all other parties; and the act punishing the parties to the fraudulent contract ought not therefore upon a mere presumption to change the intent of the Legislature which declares the contract valid as to the parties. Construing the two acts together, it is the same as though there were a provision in the penal act by which it was expressly declared, that although the parties shall be punished for attempting to defraud creditors, still any transfer or sale of property made for that purpose shall be valid between the parties making it. This is the construction which has been given to this law whenever the attention of the courts has been called to the effect which the penal act should have upon it. Carpenter v. McClure, 39 Vt. 9-13. In this case the court says: "If such transactions were made punishable as offenses, and the statute did not contain this section [referring to the section declaring the contract void as to creditors only], it could more properly be urged that they were in all respects to be governed by the laws relating to prohibited transactions; but while one section prohibits the covinous contract, the other limits the resulting invalidity to the innocent parties against whose interest it is directed." We think this is the true construction to be given to the two acts, and that consequently the penal statute referred to does not invalidate the contract as between the parties. Wis. Sup. Ct., Sept. 21, 1886. Davey v. Kelley. Opinion by Taylor, J.

-

AVOID

INFANTS- GOODS SOLD TO PARTNERSHIP ANCE. In an action upon contract for goods sold and delivered to a partnership, one member of which is a minor, the plea of infancy may be interposed by him in bar of any claim of personal liability upon the contract. Conrad v. Lane, 26 Minn. 389. The goods hav ing been furnished to a partnership of which defendant was shown to be a member, the court ruled that he was liable, on the ground, substantially, that by engaging in business as a member of the firm he held himself out as competent to bind himself by contract, and hence is estopped to set up his infancy as a sole defense. The rule is not however changed by the fact that he was a member of a partnership. His contracts are voidable, as in other cases. Mason v. Wright, 13 Metc. 308; Smith v. Kelley, id. 309; Todd v. Clapp, 118 Mass. 495; Schouler Dom. Rel., §§ 424, 425. In Kemp v. Cook, 18 Md. 130, Lord Mansfield is quoted as having said in Gibbs v. Merrill, 3 Taunt. 307, "that an in

fant, by engaging in a partnership with an adult, holds himself fraudulently to the world;" but we find no such language in the case referred to as applied to the infaut partner. In some States the common-law rule is changed by statute, in order to protect persons dealing with infants under circumstances likely to induce the belief that they are over age. Jaques v. Sax, 39 Iowa, 367. How far, or in what cases, an infant may or may not be bound by actual fraud, it is not necessary to consider here, since this case clearly falls within the rule laid down in Conrad v. Lane, supra. It would be a similar innovation upon the common-law rule, if in cases where his appearance and business were such as to induce the belief that he was over age, an infant would in consequence be held bound as though of full age. The hardships which may arise in particular cases must yield to the operation of a general rule, founded in public policy, intended to protect persons in fact under age from the danger of imprudent contracts. 2 Kent Comm. *241. Minn. Sup. Ct., Sept. 6, 1886. Folds v. Allardt. Opinion by Vanderburgh, J.

MARRIAGE-WIFE'S TORTS-EXEMPLARY DAMAGES.-Exemplary damages are recoverable against husband and wife in an action against them for the malicious trespass of the wife, though the husband is without blame. When two persons have so conducted as to be jointly liable for a tort, each is responsible for the injury committed by their common act. But when motive may be taken into consideration, the improper motive of one cannot be made the ground of aggravating the damages against the other if he is free from such motive. In such case the plaintiff must elect against which party he will seek aggravated damages. Clark v. Newsam, 1 Exch. 131. So a master sued for the trespass of his servant is not liable for exemplary damages, however evil the motive of the servant, if he is himself without malice. The Amiable Nancy, 3 Wheat. 546; Cleghorn v. New York Cent. & H. R. R. Co., 56 N. Y. 44. In all cases it is to be observed that the plaintiff has his election to proceed against all or any of the wrong-doers; and in such case it would be unjust to make the malicious motive of one party the ground of enhancing damages against another who is free from such motive, if the plaintiff proceeds against all, he thereby deprives himself of the right he otherwise would have had to claim exemplary damages. But the case is different when suit is brought for a tort of the wife for which the husband is liable solely by reason of her coverture; for then the plaintiff has no election, but must proceed against both; and herein lies the distinction between this case and the cases relied upon by the defendant, for the husband is liable, not as master, but as husband, and because of the oneness of the twain in the eye of the law. We have not been referred to, nor have we found much authority for this distinction, but we think it must exist in principle. Vt. Sup. Ct., Aug. 18, 1886. Lombard v. Batchelder. Opinion by Rowell, J.

MISTAKE-REforming deed.-A court of equity will reform a written instrument of conveyance so as, by enlarging or narrowing its terms, to make it conform to the original intention of the parties as expressed in their verbal contract, notwithstanding the statute of frauds. The courts of a few of the States have held that contracts required by the statutes of frauds to be in writing could only be corrected in the single instance of a mistake in reference to the subject-matter of the contract, where the error consisted in including more-for instance, land-in the written contract than the parties intended, in which case parol evidence might be used to show that the surplus should be omitted or eliminated from the contract as written, and confine the operation of the con

tract to the remaining subject-matter mentioned in it, and to which the parties intended the contract to apply. The reason assigned for thus limiting the reformation of a contract required by the statute of frauds to be in writing, is that parol evidence in that case does not conflict with the statute of frauds, since the relief does not make a parol contract required by the statute of frauds to be in writing, but simply narrows a written one already made. The courts of the States that put the most stress on this doctrine had no general equity jurisdiction, but only such limited equity jurisdiction as the statutes of the State conferred upon them. This view of the question therefore grew out of that fact. A few other States however with general equity jurisdiction followed in the same line of thought. On the other hand, a large majority of the courts of the States have held that contracts required by the statute of frauds to be in writ ing may be reformed by the courts of equity so as to enlarge or restrict the terms or the subject-matter of the contract, whenever it is clearly shown that the written contract, by fraud or mistake, does not embrace either the terms or the subject-matter of the contract as it was intended and understood by the parties to it. The courts of equity go upon the ground that the statute of frauds is no real obstacle in the way of administering equitable relief so as to promote justice and prevent wrong. They do not overrule the statute, but to prevent fraud or mistake, confer remedial rights which are not within the statutory prohibi tion. In respect to such needful remedies, the statute as to them is uplifted. Ky. Ct. App., Sept. 21, 1886. Noel's Ex'r v. Gill. Opinion by Bennett, J.

THE

OUR NEW YORK LETTER.

HE fourth of October is the lawyer's New Year day here. He makes his usual new resolutions to ask for no unnecessary adjournments, to be always ready with his cases, and not to charge his client more than he thinks he can get. The volume of litigation here, as indicated by the calendars, is larger than last year, there being upwards of eight thousand actions and proceedings pending against the city alone. The General Term of the Supreme Court is more than seven months behind in its work, although it has caught up not a little during the last two years. This has been accomplished however only by rendering numerous decisions without opinions, a most fruitful method of protracting litigation, Counsel will not be likely to advise clients to abandon their contentions where there has been a favorable and well considered opinion by an able judge, for the reason that the Geueral Term has reversed without opinion.

An exposition of the views of our General Term not infrequently terminates the suit, where a failure to express itself sends the case to the Court of Appeals. Recognizing the sometimes dangerous and expensive delays caused by a failure to secure the prompt consideration of the General Term, where decisions relating to demurrers and orders are appealed from, Edward B. Whitney, Esq., introduced a most excellent resolution at the last meeting of the Bar Associa tion. It provides for the holding of a General Term every month in the judicial year, that is to say from October to June, instead of three time a year as at present, and the assignment by the governor of an additional justice from some interior district of the State (where he could easily be spared) which would make four justices assigned to the work of review in this Judicial District. By the powers conferred upon them by statute they would then be enabled to enlarge their number so as to run two General Terms

BRASHER FALLS, N. Y., Oct. 16, 1886.

L. C. LANG.

WHO WROTE "THE BENCH AND THE BAR?" Editor of the Albany Law Journal:

"The Bench and the Bar," by the Author of "Random Recollections of Lords and Commons," was written by James Grant. It was published in London in 1837 by Henry Colburn and republished in this country by Carey & Hart.

Allibone's Dictionary of Authors, title Grant, James. There is another work entitled "Law and Lawyers," two volumes, octavo, published in London, 1840, by Longman, Orme, Green & Longmans, the author of which is not given in the volumes. Who he was has puzzled many. It was probably written by Archer Polson. Allibone's Dictionary of Authors, title Polson, Archer, where it is said to have been published in 1858. My copy was published in 1840. Paul, Timbs & Fitzgerald ("Modern Anecdotes," p. 183), cite it as Polson's. Mr. Woolrych (2 Lives of Eminent Serjeants, p. 553) cites it as Polson's, though in a note (p. 642) he says: "This is a very interesting and amusing book of two volumes attributed to Mr. Polson." The italics are Woolrych's. Neither Lowndes nor Brunét mentions Polson. ALBANY, Oct. 25, 1886.

NATHANIEL C. MOAK.

Mission Society, appellant; Jared Webster, respondent, v. Seth W. Nichols, executor, etc., appellant; In re estate of Jesse Hulse, deceased; Mary McCall, administratrix, respondent, v. Silas H. Witherbee et al., appellants; Dayton Hillyer, ancillary administrator, appellant, v. United States Trust Company of New York, respondent; Thomas Fox, respondent, v. Matthew Byrues, appellant; Michael Tracey, administrator, appellant, v. New York Central and Hudson River Railroad Company, respondent.-Judgment of General Term reversed, and that of Special Term affirmed with costs-People, appellants, v. John O'Brien, receiver, etc., respondent; Robert Willetts et al., executors, respondents, v. Sarah A. Willetts et al., appellants.-Order affirmed with costs-People, ex rel. Richard Ryan, respondent, v. Civil Service Superintendent and Examining Board of New York City et al., appellants; People, ex rel. Lake Shore and Michigan Southern Railroad Company et al., appellants, v. Common Council of Dunkirk (two cases); People, ex. rel. Cornelia E. Rosa, appellant, v. John C. Streeter et al., assessors of Watertown, respondents.-Judg ment of the General and Special Terms reversed, and the proceedings of the respondents reversed, with costs to the relator in this court and the court below-People, ex rel. Frank Smith, appellant, v. Commissioners of Fire and Buildings Department, Brooklyn, respondents. Judgment of General Term affirmed as to the probate of the will, and reversed as to award of costs to the contestants, with costs to the executor, to be paid out of the estate-In re Probate of Will of John Wilson, deceased.- Appeal dismissed with costsJoseph Corner, appellant, v. Frank Wrisley, respondent.- -Order of General Term reversed, with costs of appeal to this court and $10 costs of opposing motion at the General Term-Anton Schwartz, appellant, v. Louise Weber, administratrix, respondent.-Motion to restore cause granted, on payment by appellant to respondent's attorney of $10 costs of motion and service of three printed copies of case-Willis McDonald A. R., appellant.-Motion to dismiss appeal granted, et al., respondents, v. Department of New York, G. with $10 costs of appeal and $10 costs of motion-Wilbur S. Peck et al., respondents, v. Isaac Powers, appellant.- -Motion to dismiss appeals granted without costs-Gotthel Greiner v. Jettle H. Hamburge; Nathan Hutkoff, respondent, v. William Jennings Demorest et al., appellants; Emily R. Caldwell, executrix, v. Franklin J. Wall, appellant.-Motion to advance cause-Margaret E. Richardson et al., appellants, v. Henry R. Jackson et al., respondents.-Motion to advance cause denied without costs-Hester J. Todd and another, appelants, v. Isaac Nelson, respondent.

-(1) Motion to substitute granted. (2) Motion to discontinue granted upon payment of costs of appeal to this court, and costs of motion-Perrin H. Sumner, respondent, v. Hannah Alexander, administratrix, appellant.-Motion to vacate order dismissing appeal granted on payment of $10 costs of motion-In re accounting of John C. Conner, assignee of John F. Smyth, an insolvent debtor.-Motion for substitution and to advance cause granted without costs-John M. D. McIntyre et al., appellants, v. McIntyre Coal Company, respondents.--Motion to prefer and advance cause denied without costsThroop Grain Cleaning Company, respondent, v. H. Cornelius Smith, appellant.- Motion to dismiss. Ordered that the executor, appellant, serve upon the attorney, Aletla A. Akin, three copies of the return now on file with the clerk of this court, embracing her notice of appeal within ten days after the notice of this order, and in default thereof that this appeal be dismissed with costs-In Settlement of accounts of Asa B. Kellogg, executor of Benjamin Akin, deceased.

The Albany Law Journal.

ALBANY, NOVEMBER 6, 1886.

JUDGE

CURRENT TOPICS.

UDGE TAFT, of the Supreme Court of Vermont, read at the annual meeting of the Vermont Bar Association, in 1885, a paper on "English Law and its Early Books," which is now issued in a pamphlet, and which gives an instructive and concise account of the original sources of our law, principally Glanville, Bracton, Fleta, Britton, Mirrour of Justices, De Hengham, etc. He observes in conclusion: "The first book of English law known to have been printed was an abridgment of the ancient law in Norman French, by Nicholas Statham, Baron of the Exchequer in 1468. It was printed, as is As is supposed, between the year 1470 and 1490. usual with those early books, there is no date, no title page, and no paging, and the author's name does not anywhere appear. It contains many original authorities which are not extant in the year books of those days. In the century after the year 1500 there were many law treatises published, among them the abridgment of Fitzherbert, his Natura Brevium; 'The Doctor and Student,' by St. Germain; Term's De La Ley, by Rastelle; The Boke for a Justyce of Peace;' The manner of Kepynge a Court Baron and a Lete; and the Carta Feodi, a book of precedents of feoffments. During the same century there were several volumes of the year books printed, and the reports of Plowden, Brooke, Bellewe and Dyer. The united number of printed volumes of decisions of the English Courts in 1645 can be seen from the comments of the 'Legal Bibliography' upon the paper read by Senator Hoar, before the American Antiquarian Society, in which he states there were but fourteen. In commenting upon this statement it is shown that there were twenty-eight volumes of reports then in existence. But to make this number each part of Coke's reports must be treated as a separate volume. Happy year 1280, when two volumes contained all the law that was known. Happy 1645, when all the law reports might be packed in a small traveling trunk. Soule's Reference Manual, published in 1883, gives nearly seven thousand volumes of reports of cases of English

6

law, Africa and the islands of the distant seas furnishing their contingent, with several thousand volumes of elementary treatises." And about one hundred volumes a year are now produced in this country alone, three-fourths of which is of no permanent, and of but little present interest.

At the annual meeting of the Incorporated Law Society, held at York, Eng., the president, Mr. H. Watson Parker, in his opening address expressed very decided opinions in favor of abolishing the old rules of land tenure, and assimilating the law of realty to that of personalty. He said: "The hisVOL. 34-No. 19.

torical reasons upon which the wide distinction between these two systems of law were once grounded have for centuries ceased to have any weight. Now, the law as to personalty practically admits of all the modes of disposition which are in use with respect to realty. Leaseholds are personai estate, but they are commonly settled upon trusts corresponding to the uses of the settled realty, and these limitations practically accomplish with respect to leaseholds all that can be desired with respect to realty, and stocks, and funds, and personal estate generally may be settled in like manner. We are told by a learned writer on this subject that the law as to personal property, as it now stands, is just as favorable to the preservation of important establishments, and to making provision for unborn children, as the law as to real property, and it is free from the objections of technicality and mystery to which the law of real property is open.' Of course the assimilation of the law of real property to that of personalty would put an end to primogeniture; but this would be no hardship. The owner of a real estate who desires that his eldest son should

possess it, to the exclusion of his other children, need only to make a will to carry out his desires; and it will be the consequence of his own neglect, if, by dying intestate, his estate is divided among his children equally, just as it is now the result of his own neglect, if by dying intestate, his real estate goes contrary to his wish to the eldest son, to the exclusion of his other children. To suggest a scheme for effecting the necessary reform in the direction advocated would occupy much more space than could be afforded within the limits of an address. In assimilating the law of realty to that of personalty, it would no doubt be necessary to preserve so much of the law relating to realty as arises out of its immovable character, and from the fact that the possession and the ownership are generally distinct; but the modifications necessary would be exceptions only to the general law of personal property, and the detail of these modifications would be readily contrived by the ingenuity of conveyancers. If the fundamental alteration in our law thus advocated were made, then (to use the words of Stephen, J., writing on this subject)'simplicity would be substituted for intricacy, and light for darkness, in this great department of law, and thus all which is artificial and technical in con

veyancing would be swept away.' No doubt we should part from our antique learning and venerable methods with regret. No one who has drunk from the fountains of real property law as contained greaves' Notes;' 'Shepherd's Touchstone;' 'Saunin Littleton's Tenures,' with Butler and Harders on Uses;' 'Fearnes' Contingent Remainders,' and 'Sugden on Powers,' and who has revelled in the artificial and paradoxical learning which they contain, can contemplate without a feeling of sadness the breaking up of the idols he once worshipped; but if ever the law of real property is to be radically and properly reformed, the sacrifice should be made, and we must commence by a jetti.