sit to recover the money was brought against the husband, who, in legal effect, had received the money. The executors had paid the money under a mistake, not as to the contents of the will, but as to its construction. It was, therefore, clearly a mistake of law, and was so treated in the argument and by the court. In delivering the opinion, the chief justice said: We do not decide that money paid by a mere mistake in point of law can be recovered back, as if it had been paid by an infant, by a feme covert, or by a person after the statute of limitation has barred an action, or when any other merely legal defense exists against a claim for the money so paid, and which might be honestly retained. But we mean distinctly to assert, that where money is paid by one under a mistake of his rights and his duties, and which he was under no legal or moral obligation to pay, and which the recipient has no right, in good conscience, to retain, it may be recovered back in an action of indebitatus assumpsit, whether such mistake be one of fact or of law; and this, we insist, may be done both upon the principle of christian morals and the common law." And so do we assert it. In Stedwell v. Anderson, 21 Conn. 139, the above decision was re-affirmed.

In Culbreath v. Culbreath, 7 Geo. 64, the plaintiff, an administrator of an intestate's estate, out of mistake as to the law of distribution, divided the estate among the brothers and sisters of the intestate to the exclusion of the children of a deceased sister. These children subsequenty recovered their proportion of the administrator, and he brought this action against the distributees to recover back the amount overpaid. It was conceded that the mistake was purely one of law, and the question was argued and decided on that ground. The court held that the plaintiff could recover, laying down the same doctrine expressed in Northrop v. Graves, supra.

The case of Lammott v. Bowley, 6 Har. & Johns. (Md.) 500, is a strong authority in favor of granting relief from mistakes of this character. Bowley, the defendant, was the devisee of certain lands, but supposed that he was not entitled to them until the happening of certain contingencies mentioned in the will. And before the happening of those contingencies, a part of the lands were sold to Lammott with the knowledge of Bowley. Several years afterward it was discovered that the true construction and legal effect of the will was to give the lands to Bowley absolutely on the death of the testator, and he brought an action of ejectment for the lands thus sold. Lammott filed a bill for an injunction. The question, as stated by the court, was simply whether a man who has title to land, but who is ignorant of his right, forfeits his title by concealing his right when he knows that another is about to purchase the land of a third party. It was held that he did not, and it was said to be the true doctrine and well supported by authorities, that a person acting under a plain and acknowl

edged mistake of his legal rights should not thereby be deprived of those rights.

(We shall conclude this subject in one more article.)

CURRENT TOPICS.

We have ever advocated the formation of local bar associations, in the hope that out of them would grow a state association, which should exert a powerful and benignant influence in elevating the character of the profession, in maintaining the honor and dignity of the judiciary, and in purifying and harmonizing legislation. But there is little prospect that such a consummation is likely to be effected by local organization. If effected at all, and we believe that it can and will be, it must be done by and through the Bar Association of the city of New York. That association is thoroughly organized, and is steadily gaining influence and strength to accomplish the work it has undertaken. If the lawyers of the state will unite with it, and give it their influence and coöperation, it will directly become, in fact, a state association, powerful for good both to the profession itself and to the entire commonwealth. By a provision in the constitution of this association, members of the profession in the state, neither residing nor practicing in the city of New York, may become members of the association on payment of the admission fee of fifty dollars, and such members are exempt from the payment of any annual dues whatever.

The following extract from a circular letter of the Bar Association is commended to the attention of the profession: "This association, which was organized little more than a year ago, 'to maintain the honor and dignity of the profession of the law, to cultivate social intercourse among its members, and to increase its usefulness in promoting the due administration of justice,' has been incorporated under a recent act of the legislature of this state. It already numbers about five hundred members, and is receiving constant accessions to its numbers. It owns a building in the city of New York and a large and constantly increasing library. It holds meetings once in every month during the winter months, for the purpose of considering questions affecting the rights and interests of the bar. It has contributed in one striking instance, by earnest protest and effort, to the protection of those interests when menaced by the improper action of the legislature. It solicits the cooperation of every member of the bar of this state who sympathizes with its objects, and who desires to see the bar of this state occupy again the position of dignity and influence which it once held, and to which it is entitled."

It has not unfrequently happened that bad cases have made good laws, and if the arrest and imprisonment of a woman in the city of New York for inability to pay her hotel bill shall result in striking from the

statute book the law making such an outrage possible, we shall not have occasion to regret the occurrence. This lady claimed to be, and from aught that appeared to the contrary was, the wife of Judge Henry Watson, a prominent resident of California. She was alone in the city of New York and a guest at the Coleman House. Her husband furnished her with money to defray her expenses, at regular intervals, by means of an express company, but for some unexplained reason the last regular remittance failed to reach her in time for her to pay her hotel bill when presented. Thereupon she was arrested and taken before Judge Shandley, who sent her to the penitentiary for two months. No wonder "she swooned on hearing the sentence." Giving a fair construction to her statements and proceedings so far as reported, we are unable to discover any thing amounting to fraud or intent to defraud. Every civilized state has long ago abolished as barbarous laws allowing imprisonment for debt, and if there is any sufficient reason why they should be retained for the benefit of hotel keepers we shall be glad to have it explained. Very likely they are more liable to be deceived than other traders, but if so, they have the remedy in their own hands without the aid of a statute-by requiring pre-payment in case of any doubt. The law in question is a disgrace to the state and ought to be expunged from the statute book.

Now that Mr. Heard has given us the "Curiosities of the Law Reporters," will not somebody do us a like service in regard to the "Curiosities of the Statutes?" Unless we greatly mistake, the mine is a rich one and well worth the working. We have already made mention of the statute allowing deductions of a certain number of days to be made, on account of good behavior, from the term of imprisonment of convicts, and wherein it was gravely provided that the act should not apply to a person sentenced for the term of his natural life. The act providing for the construction of the present capitol in this city (laws 1804, ch. 67) is something of a curiosity in its way. It is entitled "An act making provision for improving Hudson's river, below the city of Albany, and for other purposes." The "other purposes" decidedly preponderate, as nothing is said about improving 'Hudson's river." A lottery is, however, provided for, from the proceeds of which the building was to be erected. Very like this is chapter 110 of the laws of 1814, which bears the title "An act to raise money to build a bridge over Allen's creek, in the town of Le Roy, and for other purposes." The last section of this act relates exclusively to medical societies in the state. What possible association could the conscript fathers have discovered between a bridge and a doctor? unless it was that both help us "over the river." This dangerous style of legislation is happily now done away with by the constitution, but occasionally its ghost will appear in some statute, as witness the

appropriation act and the smuggled clause to extend the court of appeals' publishing contract.

It is now about the time when the greater portion of those who intend to enter the legal profession are making preparation for the beginning of their studies. With the fall months the law schools commence their sessions, and most of the lawyers the business of the year; consequently there are at present a large number of young men about to study for the bar, who are anxiously considering how and where they shall be educated. We are frequently asked which is the better place to prepare for the practice of the law an office or a law school; and our uniform answer is, that neither the one nor the other will properly train the student. The routine of the office is necessary to explain and fix the teachings of the school, and the training of the school to systematize the instruction of the office. Whatever may have been done in the past, it is not possible to-day, in the United States at least, to acquire by solitary reading and the performance of clerical duties a comprehensive knowledge of legal

science. By such means the student may become familiar with the details of practice, and what is known as case law, but if he desires to understand the fundamental principles of which these are but the outgrowth, he must seek instruction from those who teach law as a department of knowledge and not as a mechanical trade. But the school will not fit one for practice, and should never claim so to do. The office and the school can, together, give a thorough education; apart, each will produce only half lawyers.

OBITER DICTA.

Short-sighted — A draft payable on demand.

A lawyer's favorite pudding is said to be—suet.

A correspondent in Michigan is responsible for the following: The clerks of the K-register of deeds office were thrown into convulsions in this wise: A

young lawyer, who had very recently thrown out his shingle and was glorying in his first land case, went to that office to look up the title. In running it through, he came not unfrequently upon the words " W. Oak," especially in the field notes and plat of the government around so often, he addressed the register and inquired if he was acquainted with W. Oak, and if he was yet alive, for he seems to have entered a large amount of land hereabouts, and must have been one of the oldest settlers." The register, perceiving the young gentleman's mistake, politely informed him that "W. Oak" stood for white oak, a tree well known, and referred to as a land mark, etc. "Ah! just so," said the young man, glancing over his shoulder to the clerks hiding their faces in the liber they were working over; "and,” continued he, "Mr. Register, I would like to get you to make for me an abstract of the title of the land," etc., which the register at once undertook to do, and our young friend withdrew directly from the office without venturing another look at the suffocated

survey. Somewhat surprised that W. Oak should be

clerks.

GENERAL TERM ABSTRACT.

FIRST DEPARTMENT.
SUPREME COURT-JUNE TERM.

APPEAL. See Practice.
ATTACHMENT. See Partnership.

BILLS, NOTES AND CHECKS.

Forged indorsement. — Lamb, Quinlan & Co. drew a draft on the plaintiffs, who were indebted to them, for seven hundred and seventy-one dollars and fortyfive cents, to the order of one Ford, and forwarded it by mail, addressed to Ford at St. Louis. The draft never reached Ford. The letter containing it was taken from the post-office by some unauthorized person, and the indorsement of the name of the payee was a forgery. The draft, with the forged indorsement, was placed by one Newton in the hands of the defendants for collection, and they presented it to the plaintiffs, who, being ignorant of the theft and forgery, paid the amount to the defendants, who did not notify them that, in making the collection, they were acting as agents. The defendants paid over the proceeds to the principal, for whom they made the collection, before any demand upon them by the plaintiffs. On appeal from judgment against defendants, held, that the judgment should be affirmed. The case is directly within the authority of The Canal Bank v. Bank of Albany, 1 Hill, 287. In that case it was held that though the defendants were innocent of any intended wrong, yet they had obtained the money of the plaintiffs on an instrument to which they had no title, and they were therefore bound to refund the amount, although they had no notice of the forgery until two months after they had transmitted the money to their principals. It was also held that the defendants, though in point of fact acting as agents, might be regarded and treated as principals, because in the transaction of presenting and collecting the draft, they had acted as if they were principals, and had not disclosed that they were agents. This is precisely this case, and is decisive of it. Kingston Bank v. Eltinge, 40 N. Y.; Union Bank v. Sixth National Bank, 1 Lansing, also cited. Holt v. Ross, as President, etc. Opinion by Cardozo, J.

See Husband and Wife.

BURIAL PLOTS. See Mortgages.

CASES CRITICISED. See Husband and Wife. CONTRACTS. See Life Insurance. Also, see Husband and Wife.

DAMAGES.

Resulting from injunction: counsel fees.—On granting an injunction in this case an undertaking was filed, which was in the usual form, and was conditioned that the plaintiff "will pay to the defendant so enjoined such damage," etc. The referee thereafter allowed, as damages recoverable under the undertaking, a counsel fee of $20 to defendant's attorney for drawing the affidavit on the motion to dissolve the injunction; also a counsel fee of $50 upon the motion (although the motion was denied), and a further fee of $125 for services on the trial of the action. Plaintiff excepted to the report allowing the above items. The exceptions were overruled at special term, from which this appeal. Held, that as the motion to dissolve the injunction was denied, and the residue of the sum allowed was for

Whether a voluntary conveyance, by way of gift, can be set aside at the suit of subsequent creditors, depends upon the intent with which it was made; and the intent is a fact to be proven in the case. The law does not, simply from the conveyance, draw the inference of a fraudulent design, but it must be proven as a fact. When there is proof that a person engaged in business has stripped himself of all his property by a voluntary conveyance to his family, without consideration, and that he nevertheless retained the possession of the property, obtaining credit on the faith of it, and the conveyance was made with the intent to continue and contract a future indebtedness in his business, and that this was done to avoid the payment of his debts, a case showing the fraudulent design is made out, justifying the court in holding that the dishonest intention existed when the deed was made. That was the substance of the case in Savage v. Murphy, 34 N. Y. 50S, and the special term having, from the facts, drawn the inference of fraudulent intent, the judgment was properly sustained. This differs from the case at bar. There is proof here, and upon conflict on that point the judge has found that the defendant, Peter Valentine, was not in business when the conveyance was made, and that he only acted as agent in the transactions out of which his liability arose. We cannot say that the judge, on all the facts, should have drawn any different conclusion than he did. Judgment below in favor of defendant affirmed. Woodruff et al. v. Valentine et al. Opinion by Cardozo, J.

HUSBAND AND WIFE.

1. Contracts in contemplation of marriage.-The plaintiff and defendant are husband and wife. Prior to their marriage, the note in suit was executed by the defendant. After having, on her direct examination, testified generally that the consideration of the note was a marriage contract between her and the defendant, the plaintiff, on her cross-examination, further said that the defendant told her, that if she would be his wife, he would give her his note for $5,000, and she 'agreed to have him at that time" agreed that she "would marry him." The referee ordered judgment for the plaintiff for the amount of the note, and the defendant appealed. On appeal, held, that it seems from the evidence that the note was given in consideration of plaintiff's promise to marry the defendant, and that therefore the note was made upon, and for, a sufficient and valuable consideration. Undoubtedly this contract (the note) would, at common law, have been extinguished by the marriage; but that rule was changed by the statute of 1849 (ch. 375), by which (§ 3) it was enacted that "all contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place." The subsequent marriage of these parties did not, therefore, affect or destroy the note. It was a contract to pay, made in contemplation of marriage, and by force of the statute remains in full force after the marriage. Curtis v. Brooks, 37 Barb. 476, contains no reasoning

to show that the note was extinguished, but simply refers to a manuscript decision as having been made to that effect. We might yield to its authority, however, as a general term case, except that it seems inconsistent with Dygert v. Remerschnider, 32 N. Y. 631. In Strong 7. Skinner, 4 Barb., and Tisdale v. Jones, 38 id., the marriages took place before the act of 1849, and, of course, do not bear upon the present case, which is assisted by that statute. Whether the plaintiff can sue at law is not a very material question, though we think she can, because there is no doubt she can sue in equity, and as the same court is to administer justice, whether through the form of law or the proceeding in equity, it seems that when we have the case before us, showing that the note was her separate property, we ought in some form to apply a remedy. Judgment affirmed. Wright v. Wright. Opinion by Cardozo, J.

2. The learned judge in dissent considers the contract extinguished at law by the subsequent marriage of the parties, and cites Strong v. Skinner and Tisdale v. Jones, supra; he also considers it unnecessary here to determine the plaintiff's rights in equity; and that the acts of 1848, 1849, 1860, and 1862, give the plaintiff no right to maintain this action (citing 44 Barb. 366; 42 id. 374, 641; 25 N. Y. 328). Ib. Opinion by Barnard, J.

INJUNCTION. See Damages.

LANDS UNDER WATER. See Real Estate.

LIFE INSURANCE.

Effect of the civil war on contracts of insurance. — On January 28, 1850, the defendant insured the life of James Sands for $5,000, in consideration of the annual premium of $160, to be paid in advance, on or before the 18th day of January in each year. The premiums were duly paid to one Muldon, the defendant's agent at Mobile, from the commencement of the risk down to and including the premium which fell due January 18, 1861. On January 18, 1862, the said Sands paid to said Muldon, who received the same without objection, $160 in confederate notes, as and for the annual premium payable on that day. Sands died July 12, 1862, having resided until his death in Mobile, Alabama. The questions discussed at the trial before the referee were: (1.) Did the existence of hostilities and the issuing of the proclamation of August 16, 1861, ipso facto (a) destroy the original contract of insurance, or (b) render unlawful its preservation from forfeiture by further payments of premium? (2.) Did the same circumstances ipso facto revoke Muldon's authority as agent? (3.) Was the payment of confederate money a valid payment of the premium? The referee decided all these questions in the affirmative, and dismissed the complaint with costs. On appeal, held, the decision of the referee was wrong. The civil war did not suspend the agency. The plaintiff's husband for years had paid the premium to defendant's agent. After the war commenced plaintiff's husband paid to defendant's agent the premium. The reason why he did not pay the premium to defendants themselves was because he was unable to come to the north to pay it to them. It would be the height of injustice to hold that plaintiff's husband, having paid regularly the premium from 1850 to 1862, was, by no act of his, to be deprived of the benefit of his policy. It should not be the policy of the law to increase the defenses of life insurance companies as against persons honestly insuring with them. Judgment reversed, new trial ordered and reference vacated. Sands v. The New York Life Insurance Co. Opinion by Barnard, J. (Continued next week.)

COURT OF APPEALS ABSTRACT.

AGREEMENT.

Settlement of estate.― A. died intestate, leaving several children. Letters of administration were taken out, and the children with others next of kin met, by appointment of the administrator, for the purpose of ar amicable settlement and division of the estate. B one of the children, charged C., who was also a child of A., with having appropriated to his own use a considerable portion of the personal estate of the deceased which should come under the distribution, and threatened him with suit if he did not account for the same. C. thereupon, and in consideration that if B. would agree to a settlement, and accept his share and portion of the assets that had come to hands of the administrator and agree not to prosecute him, promised that he would pay him $150. B. assented, and accepted his portion of the estate as distributed by the administrator. This agreement was, by an understanding between the parties, concealed from the other children. B. brought an action against C. upon his promise to pay the $150. Held, that the agreement was void, as no one had a right or could in good faith, by any secret arrangement with another, secure to himself any advantage over the others; as each became a party to and acquiesced in the distribution, he did so upon the faith that he was sharing equally with the others; and any secret agreement or arrangement which should disturb this equality was a fraud and a violation of the good faith which each owed to the other, and the confidence which each had a right to repose in the other, which called for the exercise of good faith in all, and prohibited each from securing any special advantage to hi self. Adams v. Outhouse. Opinion by Allen, J.

APPEAL.

1. The defendant appealed from an order of the supreme court reversing an order of the city court of Brooklyn setting aside a judgment and granting a new trial, on the ground of newly discovered evidence in connection with fraud on the part of the plaintiff. Held, that the supreme court had no jurisdiction to entertain such an appeal. Baker v. Remington. Opinion by Allen, J.

2. The act of 1850 gave the appeal, and declared the cases in which it might be brought. The appeal given was from a judgment, with the power incidentally to review any intermediate order involving the merits, and necessarily affecting the judgment. No appeal from an order was given, except in connection with an appeal from a judgment. This right of appeal has not been enlarged by any subsequent statute. Ib.

ATTORNEY.

Authority of. - An attorney retained to conduct a case in the court of appeals has authority to adjust the costs in the case, and to take such steps in the supreme court as may be necessary for that purpose. But where, in such case, a motion at special term for an extra allowance has been denied, and the denial affirmed at general term, the attorney has no authority without the consent of his client to take an appeal to the court o appeals therefrom. Smith v. City of Rochester. Opinion by Grover, J.

BREACH OF COVENANT OF SEISIN.

A. sold to B. certain premises upon which there were buildings. The former tenants of A. having erected and claiming such buildings, removed them after the

conveyance of the premises to B. B. recognized their right to do so, and brought an action against A. for breach of covenant of seisin, to recover the value of the buildings. It appeared on the trial at the circuit, that said buildings were erected by the tenants during an unexpired term of lease to them of the premises by A.; that said lease was renewed to them, the tenants agreeing to return the premises in as good state as found, damages by the elements, etc., excepted. The premises were sold by A. to B. before the expiration of the lease. Held, that on the renewal of the lease, without reservation of the buildings erected, the title to them passed to the lessor, and that the remedy of B. was against the person wrongfully removing the buildings, and not upon B.'s covenant. Loughram v. Ross. Opinion by Allen, J.

CARRIERS.

1. Misrepresentations as to vehicles of transportation.— A. contracted with B., as common carrier, to transport a cargo of rye from Troy to New York, agreeing to pay B. five cents per bushel and assume all risks of the voyage. B. represented his boat as rated as second class on the insurance register; but it was found to be rated only as third class, consequently A. was unable to procure an insurance on his cargo. He immediately informed B. of that fact, and forbid him carrying the rye upon the terms agreed upon. Afterward B. made an effort to procure an insurance, but failed, and started the boat on its voyage. Navigation was hazardous, and within a few miles a collision occurred, which produced a leak, and the rye was injured. Held, that A. had a right to rescind the contract in consequence of the misrepresentation of B. as to the ratable character of the boat, and that B., in taking the rye, assumed the risks of navigation and the ordinary liability of common carriers. Dauchy v. Silliman. Opinion by Church, C. J.

2. Delivery to connecting line. -The Michigan Central Railroad Company contracted as common carriers to take a quantity of wheat from Kalamazoo to Detroit, and deliver it there to a propeller of the New York Central R. R. line of propellers on Lake Erie. After its arrival at Detroit, the Michigan C. R. R. Co. gave notice according to a custom prevalent with them and carriers who were accustomed to take goods from them. This custom was to deposit a written notice of the presence of the freight in a letter box appropriated to the particular carrier by whose line the freight was to go. The custom was uniform and fully recognized by all connecting lines. No evidence was produced that the plaintiff (the shipper of the wheat) knew of this custom. The wheat was destroyed at Detroit, before its delivery to the propeller line. Held, that the railroad company were liable for the wheat until its delivery to the New York line of propellers on Lake Erie. Mills v. Mich. C. R. R. Co. Opinion by Grover, J.

EJECTMENT.

A. demised certain premises to B. for the term of seventeen years, at an annual rent. A. had the election at the expiration of the term to pay for certain❘ buildings or improvements upon the premises, deducting eight per cent from their appraised value, or renew the lease for five years. The appraisal of the buildings or improvements was to be made by two disinterested freeholders, to be chosen by each of the parties. The lease-and the term created by it-came, before the expiration of the term. to one D., by assignment from

B. A. gave D. notice that she had chosen one appraiser, and requested him to appoint one to act with him in appraising the buildings or improvements upon the premises; he did so, but they failed to agree upon the value of such buildings, etc. Nothing further was done until the expiration of the lease, when A. brought an action of ejectment against C., the sub-tenant of D., who was in possession of the buildings. Held, that there was no legal or equitable defense to the action. Scoville v. Maury. Opinion by Allen, J.

EXECUTION.

1. Death of judgment debtor: notice of sale under: effect of irregularity in. — Where, after judgment, process is issued for the collection of the judgment by the sale of the real property of the debtor, and a sale commenced by the advertisement of the property, the execution of the process is not arrested by the death of the judgment debtor. Wood v. Moorehouse. Opinion by Allen, J. (Peckham, J., dissenting.)

2. And the provision of the statute (2 R. S. 368, § 27), that, in case of the death of a party after judgment, but before execution, no execution shall issue on such judgment until one year after the death, does not arrest the proceedings upon an execution already issued. Ib.

3. The regularity of a sale of real estate by the sheriff is not affected by the fact that six full weeks did not elapse between the first publication of the The notice of sale and the day fixed for such sale. statute is complied with by a publication once in each week for six weeks before the sale. Ib.

4. Where it is claimed that a sheriff has not complied with the statute as to posting notices, the omission must be proved affirmatively. The officer is presumed to have done his duty. Ib.

5. Where one purchases in good faith and without notice of any omission of the sheriff to give the legal notice of sale, the validity of his title is not affected by such omission. He need not be a purchaser for a valuable consideration. Ib.

FALSE REPRESENTATIONS.

What constitutes. — A., by representations made to B., induced B. to sell him goods on credit. The sale resulted to the damage of B. The referee found upon the trial, that such representations made by A. were false and untrue, and expressly refused to find further, although requested to do so by A. The referee held, that the law presumed, without requiring further proof. that fraud and intent to deceive were the necessary concomitants of a false representation, and the loss sustained thereby. Held, that the referee erred in thus holding, and that the finding of the facts by him did not contain enough to sustain the conclusion of law. Meyer v. Amidon. Opinion by Folger, J.

HOTEL AND INNKEEPERS.

1. Liability of, for money and watch and chain stolen from room. -A. was a guest at the Metropolitan hotel, and on retiring for the night he locked the door of his room, and placed his watch with chain and seal worth $350, and $50 in money under his pillow. Both money and watch were stolen during the night. It was shown on the trial that a notice was posted in A.'s room, to the effect, "that a safe was provided in the hotel for the safe keeping of money, jewels and ornaments (as required by the act, to regulate the liability of hotelkeepers). A. brought an action to recover the value of the watch and also the fifty dollars in money. Held,