good faith, and having purchased the land intended to be acquired, so far as a satisfactory title could be obtained, the failure to acquire all the proposed lands was a misfortune that must be shared by all the stockholders in common, and that the plaintiff was not entitled to recover the money paid by him for stock, on the ground that it was impossible for the company to carry out its objects. Kelsey v. Northern Light Oil Co. Opinion by Grover, J.

DAMAGES.

On failure to comply with condition in lease. - The plaintiff, as assignee of the lessor, brought this action to recover damages for a failure on the part of the lessee of certain premises to sink a well as required by a condition in the lease. Held, that in such a case the proper measure of damages is not the amount required to sink the well, but the amount in which the plaintiff is injured by the default of the defendant, and if he receives no injury he is entitled only to nominal damages. Chamberlain v. Parker. Opinion by Andrews, J. See Deeds, 5.

DEEDS.

1. Construction of covenants in. - A deed given by defendant to plaintiff contained this clause: "Reserving always a right of way, as now used, on the west side of the above-described premises, for cattle and carriages, from the public highway to the piece of land now owned by Samuel B. Reeves, lying north of and adjoining the premises herein conveyed." Reeves had used the right for more than twenty years, and had established it by suit against the plaintiff. Held, that while a reservation is always of some right to be used by the grantor, issuing out of the estate granted, a deed must be so construed as to give effect to the design of the parties manifested by the language used. That the reservation in question cannot be construed to be a right to the grantor, but from the expression as now used," etc., must be understood to be appurtenant to the land owned by Reeves, and that the establishment by action against plaintiff of such right of way in Reeves was not a violation of defendant's covenant for quiet enjoyment. Bridger v. Peerson. Opinion by Grover, J.

66

5. Stipulation in, not to carry on certain business: practice: damages.-There was a contract not to erect or permit on the premises in question "any manufactory of gunpowder," etc., "distillery," etc., "or other noxious or dangerous trade or business." Held, that a manufactory of parafine oil, though not a distillery, within the strict meaning of that word, if the business is noxious or dangerous it is equally within the prohibition. The words "noxious" and "dangerous" here are to be construed in the light of the previous specifications, upon the maxim noscitur a sociis. Atlantic Dock Co. v. Libby. Opinion by Church, C. J.

3. The covenant was lawful. Ib.

4. The direct finding by the referee that the business is dangerous is a finding of fact, although contained in the conclusions of law. Ib.

5. No damages were recovered in the action, though an injunction was sustained. The referee certified that the value of the defendants' property affected was upward of $50,000, and an order allowing $500 extra allowance to plaintiff granted. Held, error. There is nothing to show that defendants' premises were not as valuable as before, and their title is not affected or impaired by the judgment. Ib.

(To be continued.)

VOLUNTARY SETTLEMENT.

It was long ago settled that a man who has executed a voluntary settlement cannot maintain a suit for specific performance against a subsequent purchaser for value. Smith v. Garland, 2 Mer. 123. The court will not impede the sale by which he seeks to get rid of it (Pulvertoft v. Pulvertoft, 18 Ves. 84), but neither will it assist him. It will not interfere in any manner respecting it, and, therefore, he has no equity to support a bill against an unwilling purchaser, who refuses to complete, on the ground that there is a prior settlement affecting the property. This is a good ground of refusing to complete, because a voluntary settlement may be made good by matter ex post facto, of which the purchaser has no notice. Johnson v. Legard, Turn. & Russ. 294.

On the other hand, a contract to sell the subjectmatter of a voluntary settlement will be enforced at the suit of the purchaser, because the conveyance by the vendor defeats the prior voluntary settlement by the operation of the statute, and there is no equity in the beneficiaries to prevent a sale. Buckle v. Mitchell, 18 Ves. 112.

In Smith v. Garland (sup.) the bill was filed by the vendor against an unwilling purchaser, who repudiated the benefit of the statute of Elizabeth. In Peters v. Nicolls, 19 W. R. 618, the defendant alleged that he was a willing purchaser provided a good title could be made; but as the only objection to the title was the voluntary settlement, and he refused the plaintiff's offer to rescind, the vice-chancellor held that the plaintiff was entitled to a decree for specific performance.

The case was one of a very peculiar character, but it deserves a passing notice, from its bearing on one of the most anomalous branches of our law, viz.: that a voluntary settlement, however free from actual fraud, is, by the operation of 27 Eliz., deemed fraudulent and void against a subsequent purchaser for valuable consideration, even where the purchase has been made with full notice of the prior voluntary settlement; though it is not easy to persuade one's self, as Sir William Grant remarked, in Buckle v. Mitchell (sup.), how a purchaser can be defrauded by a settlement, of which he has notice before he makes his purchase.—Solicitor's Journal.

CORRESPONDENCE.

DEFENSE OF A DISCHARGE IN BANKRUPTCY TO AN ACTION ON A JUDGMENT.

CINCINNATI, O., August 24, 1871.

Editor of the Law Journal:

Dear Sir-It occurs to me that the profession at large would be interested in having their attention called to decisions promulgating doctrines at variance with the current belief and opinion, and, as I think, against the weight of authority, especially when they are selected for publication or notice in a legal periodical of so extensive a circulation and influence as that of the JOURNAL.

In the last number of the JOURNAL (No. 4, August 19), page 61, is found the syllabus of the decision in Bradford v. Rice, by the supreme court of Massachusetts, taken from the 102 Mass. 472, to the effect that a "certificate of discharge in bankruptcy is no defense to an action on a judgment recovered upon a debt provable in bankruptcy after the debtor had been adjudged a bankrupt." It is true, that the court, in

the opinion delivered by Gray, J., say, that "the ruling of the court below was in accordance with a series of decisions of the supreme court of that State," yet it is evident the court were influenced, to a considerable degree, by the decision of Judge Shipman in the district court of the United States for the district of Connecticut (In re Williams, 2 Bank. Reg. 79), where it was held, "that a creditor, by taking a judgment in common form after the commencement of bankruptcy proceedings, loses the right to prove in bankruptcy." And thereupon Judge Gray pertinently remarks "we have been referred to no opposing decision of the federal courts." Whatever may have been the fact as to "opposing decisions," at the time the decision in Bradford v. Rice was rendered, it is now well known that there exists a number of such, and it is to these that I desire to call attention in this communication. The first case was that of In re Brown, 3 Bank. Reg. 145, where the identical question passed upon by Judge Shipman (In re Williams, supra), came before Judge Blatchford, in the district court of the United States for the southern district of New York, where the second sentence of his decision reads as follows: "I have examined the decision of the district court for the district of Connecticut in the case of In re Williams, 2 Bank. Reg. 79, and am compelled to dissent from it." The next case is that of In re Vickery, 3 Bank. Reg. 171, where the same question came up before Judge Withey, United States district judge for the western district of Michigan, and he emphatically says, in deciding the point, "I dissent entirely from the rule laid down in In re Williams, and fully concur in the decision in In re Brown, supra." The third and last decision that I have seen reported is that of Judge Longyear, in the United States district court for the eastern district of Michigan, who dissents from Judge Shipman's decision in the case in question, and asserts that it originates in a mistaken theory, viz.: "that the debt is extinguished by the judgment." To which Judge Longyear responds, that "the debt is not extinguished. The instrument, contract or obligation upon which the debt arose is extinguished, but not the debt. The debt remains. If this were not so, the judgment would destroy itself by extinguishing the very foundation upon which it is built. The debt was founded on contract; it is now founded on judgment, but is, nevertheless, the same debt. A judgment operates to extinguish a debt only when it produces the fruits of a judgment." Citing, 14 Pet. 19, 32; 1 Blatch. C. C. 326, 328, 329; and 3 Com. 216.

Judge Longyear's decision in this case, and Judge Withey's in In re Vickery, supra, were almost simultaneously rendered, and it is probable that neither knew of the other's decision until both had been given. At all events, no reference is made in either to the other. I have given but a very short extract of the decision in In re Crawford. It is well worthy of a careful perusal, as it strikes me as the most forcible, consistent and logical decision of any that has been published or reported on the question involved. It is apparent that the decision in Bradford v. Rice cannot be supported, if the views taken and held by Judges Blatchford, Withey and Longyear, in opposition to those of Judge Shipman, be correct. The ruling in that case hinges upon the construction and effect given to a judgment obtained by a creditor of a bankrupt after his adjudication upon a debt provable against him. For the court say "That if, after the institution of proceedings in insolvency or bankruptcy, judgment is re

covered upon a debt provable under those proceedings, the original debt is merged and extinguished in the judgment, and the judgment is not provable against the estate of the debtor nor discharged by the certificate." Clearly showing that if the court had adopted the views expressed in In re Crawford, In re Vickery and In re Brown, referred to, the decision would have been otherwise. I have not attempted to criticize the decision in Bradford v. Rice, neither was it my object or intention so to do, except so far as to refer your readers to the cases which are in conflict with the reasoning of that case. But I may venture to express the opinion that the decision is an unfortunate one, and will work hardship to honest and confiding debtors, and discriminate unjustly in favor of cunning and relentless creditors, as it is fair to assume that judgments of this class are and will be obtained more through the inadvertence or oversight and omission of the bankrupt or his assignee than through any good faith on the part of the creditor.

J. W. JOHNSON.

DISTRIBUTION OF WIFE'S PERSONAL ESTATE. ANGELICA, August 26, 1871.

Editor Law Journal:

Dear Sir-Your JOURNAL of 10th June, 1871, Vol. III, p. 375, gives notes of a case entitled "Personal estate of the wife; to whom it goes at her death."

The revised laws of 1813, chapter 65, section 17, says: "Nothing in this act contained respecting the distribution of intestates' estates shall be construed to extend to the estates of femes covert that shall die intestate, but that their husbands may demand and have administration of their rights, credits and other personal estate, and recover and enjoy the same as fully as they might have done before the passing of this act." Referring in the margin to 22 and 23 Car. II, c. 10, and 29 Car. II, c. 30. By the revision of 1830 there were three sections that either directly or by implication recognized this right of the husband. 2 R. S. (3d ed.), 138; § 30 (sec. 29), § 31 (sec. 30) next page, and § 83 (sec. 79), p. 161. The last-named sections read as follows: "The preceding provisions respecting the distribution of estates shall not apply to the personal estates of married women, but their husbands may demand, recover and enjoy the same, as they are entitled by the rules of the common law."

This section was amended by the eleventh section of the act of 1867, as follows:

The 79th section of chapter 6, title 3, of the 2d part of the revised statutes is hereby amended so as to read as follows:

"§ 79. The preceding provisions respecting the distribution of estates shall apply to the personal estates of married women dying, leaving descendants them surviving; and the husband of any such deceased married woman shall be entitled to the same distributive share in the personal estate of his wife to which a widow is entitled in the personal estate of her husband by the provisions of this title, and no more."

It would seem that so far as married women dying leaving no descendants them surviving, the husbands would still be entitled to enjoy the personal estate in the same manner as if the act of 1867 had not been passed. Should not the act of 1867 have repealed both the thirtieth and thirty-first sections referred to, to have the effect the court seems to have given it?

As I have received much useful instruction from your valuable journal, I have taken the liberty, although an entire stranger, to send you this.

Yours respectfully,

J. G. COLLINS.

NOTES AND QUERIES,
CORTLAND, Aug. 22, 1871.

Editor of Albany Law Journal:
Sir-Will some of your readers please answer the
following questions?

A. recovers judgment in justice's court against B. for $40. B. appeals to the county court upon questions of law. In his notice of appeal B. does not state in what particular the judgment should have been more favorable to him, nor does he ask for a reversal of the judgment.

Has A. any remedy before argument?

If, upon argument, B. should succeed in reversing judgment, who should costs be taxed against?

A Treatise on the Law of Fire Insurance. By Henry Flanders, author of a "Treatise on Maritime Law, "The Law of Shipping," etc. Philadelphia: Claxton, Remsen & Haffelfinger, 1871.

It is only within a few years that the law of insurance has come to form an important department of jurisprudence-so few, indeed, that its principles have scarcely yet been reduced to a system. This fact renders the latest treatise and the latest decisions on the subject of more importance than they would otherwise be entitled to.

Mr. Flanders says that he has endeavored to "systematize the principles deducible from the numerous decisions of our courts upon the complex subject of fire insurance," and it may be fairly said that he has, in the main, fulfilled his endeavor. He seems to have been a very careful and industrious student of the cases, and has displayed good judgment in extracting and stating their principles; but, according to his own admission in the preface, his work is not the highest type of a "treatise." "He has been sparing," he says, "of adverse criticism, as in the practical business of the profession it is more important to know what the law is, than what, in the opinion of the writer, it should be." This is quite true as it reads, but it impliedly admits, what a close examination of the book shows, that the author has seldom thought it necessary to give more than the gist of the decisions, whether harmonious or conflicting. Now, the true province of the treatise writer is, to make himself such a master of the subject that he may be able to give the underlying principles even where the decisions are conflicting, and to indicate the rule that should prevail. This is asking much of a text writer, but no more than many of them have given, and not to the detriment of the practical value of their works either.

But among the treatises of the day this of Mr. Flanders is entitled to a very respectable rank. It is the best work on fire insurance with which we are acquainted, because it is the latest, and is reasonably accurate and exhaustive. The author has not noticed all the cases, which was, perhaps, not to be expected, but he ought not to have omitted such an important decision as that of Burbank v. Rockingham Ins. Co., 24 N. H. 550 on the question as to whether the death

of the assured and the succession of the heir operated as an "alienation," as that term is usually used in policies. Indeed, the entire subject of alienation or change of title by death is either omitted or only incidentally referred to. If there is any soundness in the decision in Lappin v. Charter Oak Ins. Co., 58 Barb. 325, the subject is worthy of discussion.

But errors of omission and commission will occur in every work, and this is no worse, in that respect, than the majority of our text-books, while in many other respects it is decidedly better. We should say that the author had scarcely reached the level of a professional book-maker, and has therefore done his work more honestly and conscientiously than he otherwise might have done, as the professional book-maker is, at best, a sorry cobbler.

GENERAL TERMS.

1st Tuesday in September, third department, Binghamton.

2d Monday in September, second department, Brooklyn.

2d Tuesday in September, fourth department, Rochester.

1st Monday in November, first department, New York.

2d Tuesday in November, third department, Schenectady.

3d Tuesday in November, fourth department, Syra

cuse.

2d Monday in December, second department, Brooklyn.

LEGAL NEWS.

There are from twenty-five to thirty Hindoos studying for the bar in London.

The law department of the congressional library contains 27,170 volumes.

A London letter states that at one time in his checkered career Tichborne or Orton was a convict on Cockatoo Island, Australia.

Governor Geary, of Pennsylvania, has removed Assistant Attorney-General McClure, for his complicity in irregularities in connection with the collection of certain war claims.

At the recent commencement of St. John's College, Annapolis, Md., the honorary degree of Doctor of Laws was conferred upon Hon. James L. Bartol, Chief Justice of the Court of Appeals of Maryland, and Hon. Richard I. Bowie, the former chief justice.

A curious and antique document of twelve foolscap pages, containing copies of the wills of Francis, Henry and Thomas Layton, executed in England in 1652, 1657 and 1671, was found in a dirt barrel, in Boston, a few weeks ago, by employees of the health department. Mr. Douglass, the acting commissioner of internal revenue, in a circular to his subordinates, says: From information at hand, I am led to believe that subordinate officers, in some few districts, have engaged in the preparation and prosecution of claims against the government. The law for the punishment of an United States officer who shall act as agent or attorney for the prosecution of any claim against the governernment is very stringent (section 98 of the internal revenue act of July 28, 1868), and should be enforced with vigor against all offenders. It will be readily seen that such offenses afford peculiar embarrassment in the administration of the laws.

The Albany
Albany Law Journal.

ALBANY, SEPTEMBER 16, 1871.

SOME NOTES ON SOUTHERN DECISIONS AND REPORTS.

There is much truth in the remark of a judge of the United States supreme court, in a late case, that the judgments of courts, in times of great civil commotion, are of but little authority, on a reconsideration of any question, under circumstances less calculated to disturb and sway the course of thought and reason. The application of this remark to the decisions of the courts of some of the southern States, is so easy and so just that we conclude it was intended for them.

The legal sumersaults which some of these courts performed in a very brief space of time, were most surprising. From expounders and administrators of confederate law they became, in a quarter of a year, the most radical opponents of every thing having the odor of the confederacy about it. We are, of course, speaking of these courts as courts, and not of the members who composed them.

One of the most fruitful subjects for the display of their ultraism was that of contracts based on confederate money considerations. Contracts of this character were held to be utterly null and void, because the confederate money was "issued by an unlawful and treasonable organization to aid in treasonable purposes and designs; and because every individual in passing and receiving them gave aid and comfort to the enemies of the government." The supreme court of Tennessee - which, by the way, was one of the first and most radical opponents of these contracts likened the "confederate treasury notes" to counterfeit money, and all contracts and transactions based upon them of no more validity than if founded upon counterfeit money. In Wright v. Overall, 2 Cold. 336, the court illustrated this as follows: "A payment in forged paper would be void and have no effect as a credit or payment for property or a preexisting debt. Much more, says the judge,' must the principle be applicable when the notes, purporting to be money, were issued against public policy, as well as the laws and constitution of the United States, and expressly for their overthrow." And Judge Shackelford, in Thornby v. Harris, 3 Cold. 158, says: "The consideration of this note being confederate treasury notes, issued in violation of the highest law of the land, and for the purpose of levying war against the government, is illegal and void." He than adds: "No court will lend its aid to enforce a contract which is founded on an immoral or illegal act." This proposition of and in itself is, no doubt, true, but its application is about as fatuous as it would be if applied to the case of a man sued by his tailor for clothes already

worn out, who should claim immunity from payment because the importer had smuggled the cloth. These opinions were followed by the same court in several subsequent decisions, among which are Hale v. Sharp, 4 Cold. 275; Fain v. Headerick, 4 id. 327.

The same doctrine has been repeatedly held in Louisiana. Hemley v. Scott, 19 La. An. 161; Rieve v. Doughty, id. 164; Graves v. Hardesty, id. 186; Washburn v. Offert, id. 269; King v. Huston, id. 288; and McCracken v. Poole, id. 359; Durbin v. McMichael, 22 id. 132; Bank of New Orleans v. Frantom, id. 462; Winter v. Jones, id. 485. And the courts of two or three of the other States, in their earlier decisions, took the same view.

But in Mississippi, Georgia, North Carolina and Kentucky, contracts founded on confederate money consideration have been sustained and enforced, and the supreme court of Tennessee has recently, in two cases, deliberately reversed its former decisions on the subject. These cases are Naff v. Crawford, 1 Heiskell, 111; and Sherfy v. Argenbright, id. 128.

Much conflict of opinion existed between the courts of the several southern States on the question, also, as to the enforcement of debts, the consideration of which were slaves or the hire thereof; some of the States, as Louisiana, for instance, holding all such debts to be absolutely void, while others, as Georgia, Alabama and Mississippi, held them to be valid. In most of the States, however, that question has been settled by the new constitutions, and the latest reports are comparatively free from such cases.

Another subject upon which the decisions of the courts of these States have been widely diverse is, as to whether the confederate government was or was not a de facto government - a subject of considerable importance in the settlement of many questions arising from the ashes of the rebellion. Two cases from the latest reports will serve to illustrate. In Thomas v. Taylor, 42 Miss. 651, it was held, that the confederate government, having "never held the national capital, nor ever asserted any authority to represent the nation," was not a de facto government-an argument which does not certainly commend itself to our judgment by its strength. On the other hand, the supreme court of Tennessee has held, in Smith v. Brazelton, 1 Heiskell, 44, and indirectly in other cases in the same volume, that the confederate government was a de facto government, and entitled to the same belligerent rights as the United States. If there be any truth in the usually accepted definition of a de facto government, we should suppose the latter decision to be the correct one, and the supreme court of the United States has held as much in the case of Thorington v. Smith, 8 Wall. 1.

One accustomed to reading the opinions of the courts of the northern States will find but little pleasure in perusing the reports of some of the States of the south. In some instances the opinions are well considered and carefully prepared, but, in most cases

there is a painful absence of any appearance of deliberation and preparation. The reporters, too, seem to have but an indifferent idea of the proper method of reporting cases. The head-notes are generally mere excerpts from the opinions, and give but a vague idea of the question before the court or its decision thereon; while the arguments of counsel, when given at all, are inserted at such length as to completely overshadow the opinion of the court. One result of this is to needlessly increase the size of the volume, and, of course, its price to the profession. For instance, the last Mississippi Report, in which the arguments are given apparently verbatim, reaches over eight hundred and eighty pages, when a proper condensation would have reduced it to at most five hundred pages; and the last Tennessee Report (1 Heiskell) is brought to about the same size, not by arguments of counsel, which are seldom given, but by "double leading" the type, a thing alike contrary to taste and economy.

THE STUDY AND PRACTICE OF THE LAW.* The coming law student has a fair prospect of being abundantly blessed with such assistance as can be given by books, in seeking the best method of preparing himself for his chosen profession. Unhappily the authors of the several treatises already issued do not agree as to the course of study to be pursued, one holding that the details of actual practice should be first mastered before the subject is taken up as a science; another, that theory should precede practice; while a third insists that instruction should be given in both departments simultaneously. Then, again, the doctors are not all in harmony as to the advantages to be derived from attendance at law schools. This diversity of opinion is not to be wondered at, when we remember that the whole matter of systematic legal education in the common law is of very recent origin. Medicine and theology had their schools centuries before there was even a treatise giving the elements of the common law, and what are known as law schools have come into existence within the recollection of not very old men now alive. The latest work addressed to those engaged in the study of the law is from the pen of one whose excellence as a writer upon legal topics, and experience as an educator, will alike give assurance of its value. It consists of lectures delivered in the law school of Harvard College, with which Mr. Washburn has been many years connected. As its title indicates, it treats concerning both the study and practice of the law. Beginning as such a work ought to with a consideration of the preliminary preparation that should be made before starting upon a purely legal course, it takes a survey of the whole subject of legal culture and its results. Of course, so broad a field forbids

*Lectures on the Study and Practice of the Law, delivered in the Law School of Harvard University. By Emery Washburn, LL. D., Bussey Professor of Law. Boston, Little, Brown & Co., 1871.

detail, and the person who seeks in this book specific directions, what to do and how to do it, will be disappointed. Hardly a single text-book, outside of Blackstone's and Kent's Commentaries, is recommended although it is strongly insisted that the elements of law can be successfully studied only in text-books. Study at a law school is recommended, as might be expected, and the acquisition of general principles before undertaking to comprehend practical details.

*

*

Probably one of the most important questions which arises in the mind of the young man about to fit himself for the bar is, Do I need a classical education? Those who have entered the profession without having gone through college are apt to place a high estimate upon advantages which they have never experienced, and the uniform teachings of writers upon the subject of legal study tend to confirm this estimate. In the work before us, the author, while admitting that it is not rare to see men, self-trained and educated, “rising above and excelling those who have had the advantages of the schools," nevertheless claims, that "we often find that, however eminent the self-educated man may be in certain qualities he wants the ease and flexibility which it is the office of a liberal education to supply." Whatever may be the potential benefits of a classical course, we, for our part, have failed to discover that college graduates, either uniformly or usually, surpass in any direction others of the profession enjoying equal business and social opportunities. That a course of training might be undergone by a youth during the seven years that intervene between his entry into the preparatory school and the completion of his collegiate career, which would render him, not only mentally, but, what is of no less importance, physically inconceivably superior to an uncultured person, we do not doubt. But that, at present, such a course or any thing like it exists in any classical school we do not believe.

As to the position of the law school in the curriculum of legal study, the fact that in fifty years the number has increased in the United States from one to twenty-three is indicative of the tendency of professional opinion. That the school alone will not make lawyers is clear, but its value as a means of methodizing and liberalizing the study of the law cannot be overestimated. Not the least of its advantages is, that it brings together from all sections young men of culture and talent, who, by mutual communication and contest, strengthen and sharpen their intellects And this, too, affords opportunity to those residing in diverse parts of the country to form social and professional friendships which will tend to dissipate local prejudice and unite more closely the bar of the nation. We would be glad, if our space permitted us, to extract more largely than we do from Mr. Washburn's lectures. We have room for only the following paragraphs, in which the subject of legal ethics is touched upon :