« EelmineJätka »
common pleas reports, in four volumes, contain the and has continued the series to the thirty-second decisions of that court from 1850 to 1861.
volume. F. Carroll Brewster began, in 1869, reports of The reports of the cases decided in the high court equity, election, and other important cases,” de- of chancery were published by Theodoric Bland in cided principally in the courts of Philadelphia. The three volumes, containing the cases from 1811 to cases began with October, 1856, and the third volume, 1832. The decisions of Chancellor Johnson, between recently published, contains cases as late as 1871. the years 1846 and 1854, when the court was abol
The act of 1845 is substantially the law now, as to ished, were reported in four volumes, cited as the the reporter, except that his reports may be bound in Maryland Chancery Decisions. sheep and sold at $4.50 instead of $4.00. The pro The existing laws of Maryland provide for the apvision, also, that minority opinions shall not be pub- pointment of a reporter by the judges of the court of lished, has been abolished, so far as relates to constitu- appeals for the term of four years, at a salary of one tional questions.
thousand dollars per year. He is to report all decis
ions of the court of appeals, designated by said court In February, 1837, it was made the duty of the Each volume is to contain at least six hundred pages,
to be reported, within six months after their delivery. judge of the superior court, residing in Kent county, and is to be sold at $5.00 a volume. The reporter to prepare reports of the decisions of the superior
owns the copyright and pays the
expense of publishcourt, court of oyer and terminer, and court of errors and appeals.
ing. The state takes two hundred copies at $6.00 a Samuel L. Harrington, associate
volume. justice, in pursuance of this act, published five volumes, commencing with the spring session of 1832, and ending in 1855. In 1866, a volume of reports
MISTAKES OF LAW. was published by John W. Houston, associate judge,
(Continued from Vol. III, p. 448.) containing the cases between the spring of 1855 and
The question was much discussed by the supreme the fall of 1858. Since that time there has been no
court of Alabama, in the case of Jones v. Watkins, 1 volume issued in the state.
Stew. 181, and the court expressed themselves strongly against relieving from mistakes of law, but
the point was neither necessarily nor properly before The four volumes of reports published by Thomas the court. There the plaintiffs, years before, had Harris and John M'Henry, between 1809 and 1818, given their notes, stipulating therein to pay a large were the earliest reports published in this state. They rate of interest, in the belief that under the statute contain the cases decided in the provincial court and they might lawsully stipulate for any rate of interest court of appeals, of the then province, from 1700 to the that the parties should agree upon.
When the notes American Revolution, and in the general court and matured they paid some of them voluntarily, and court of appeals of the state from 1780 to 1799. These suffered judgment to be taken by default on the reports were succeeded by the reports of Thomas others. Some years afterward the courts decided, that Harris and Reverdy Johnson, numbering seven vol the statute in question limited the rate of interest in umes. The first volume contains the decisions of the cases like this to a sum much smaller than plaintiff's general court and court of appeals from 1800 to 1805, had paid. Thereupon plaintiffs filed their bill to reinclusive. The general court having been abolished, cover the overpayment. There were several reasons the remaining six volumes contain only the decisions why they were not entitled to relief. One was, that of the court of appeals down to 1826. Following in their remedy, at least at law, was barred by the regular succession these reports are the two volumes statute of limitation before their bill was filed. of Thomas Harris and Richard W. Gill, containing the Another was, that they had a good legal defense at decisions down to 1829. From 1829 to 1843 the the time to the actions brought on the notes, but had cases in the court of appeals were reported in twelve failed to make it; again, there was no fraud shown, rolumes by Richard W. Gill and John Johnson. Mr. but the notes were paid in exact conformity to the Gill continued the reports from that time to 1851. original intention of the parties; or, in other words,
In 1851 A. C. McGruder was appointed state they had paid what the law would not have comreporter under a provision of the legislature, and pelled them to pay, but what, in equity and conbegan the series known as the Maryland reports with science, they ought. The case did not, therefore, call the December term, 1851. He published two vols for the interference of the court. umes ending in the latter part of 1852. Volumes In Pinkham v. Gear, 3 N. H. 163, Chief Justice 3–18 of the Maryland reports were reported by Oliver Richardson regarded it as well settled that no man Miller, and contain the cases betwcen December, 1852, can avoid his contracts by an allegation that he made and June term, 1862, inclusive; from nineteen to it under a mistake of law. This nobody will dispute, twenty-six of the series Nicholas Brewster, Jr., held for it is clear that the mistake must be not only the office. Mr. J Schaaff Stockett succeeded him, | alleged, but prored. The case of Peterborough v.
Lancaster, 14 N. H. 382, is in no proper sense an was purchasing. The case turned solely on the quesauthority, one way or another. There, a town not tion of mistake of law, and was decided on that point. chargeable with the support of a pauper agreed with The court remarked that it was “well established, that a town by whom the pauper had been maintained, to relief is given in cases where the mistake has been pay for the future support for a specified time, and paid clearly one of law," and they thought “the authora portion of said agreed sum, to recover which action ities relied on put the matter beyond all doubt, if, inwas brought. It did not appear, as the court expressly deed, it could be doubted at this day.” declared, whether it was a mistake of law or of fact, The next case, that of Lawrence v. Beaubien, 2 and while they gave no uncertain indication of how Bail. 623, resembled in its main features that of Bingthey would decide in a case presenting the point, this ham v. Bingham, cited in the first of these articles. case was decided on other grounds.
The defendant was the devisee of certain lands, but In Kentucky, it has been uniformly held that courts the heir at law interposed a claim that the devise was of equity can grant relief in case of mistake either illegal. The defendant was advised by counsel that of law or fact. In Underwood v. Brockman, 4 Dana, he could not hold the real estate, because when the 309, and Ray v. Bank of Kentucky, 3 B. Monroe, 510, will was made he was not a naturalized citizen. the court of appeals of that state ably and fairly dis- Desiring to become the owner of the property, he cussed, on general principles, the question as to the procured the heir at law to execute a deed of assigneffect of mistakes of law, and the conclusion at which ment of all his interest therein in favor of the defendthe court arrived was, that if a man, without any other ant, who, in consideration thereof, issued a bond motive or consideration than an erroneous opinion re which was afterward assigned to plaintiff, and on specting his legal rights and obligations, release a right, which this action was brought. This bond was exepay money or undertake to do an act, he should be held cuted under a clear mistake of law, as the devise to entitled to relief equally as if he had acted under a defendant was effective and legal, and the land already mistake of fact, and for the same reason, namely,
that his when he purchased it. The case was very ably the contract was not such as the parties, or one of and elaborately argued on both sides, and the court, them at least, really contemplated. "And sucli," they
“And suclı,” they in a learned opinion, held that contracts founded on a said, “we understand to be the rational and consist- plain and palpable mistake of law ought not to be ent doctrine of the common law established in Ken- enforced, and that there was no difference in principle tucky.” See to the same effect, Fitzgerald v. Peck, between the cases of recovering back money, and of 4 Litt. 125; Gratz v. Reed, 4 B. Monroe, 190. enforcing a contract founded on such a mistake.
In South Carolina, wher« the question has fre These two cases having been somewhat doubted by quently been before the courts, the doctrine is well the chancellor in a subsequent case (Hopkins v. Mazsettled in harmony with the cases in Kentucky. In yack, 1 Hill Ch. 242), the court of appeals took octathe first case presenting the question, the defendant sion, when the case came before them, to express had sold a wharf, and for a part of the purchase-money their decided adherence to the rule laid down. The had taken seven bonds, to secure the payment of which court said that Lawrence v. Beaubien was decided on he held a mortgage on one-half the wharf. He as much consideration, and the more they had reflected signed two of these bonds on which the plaintiff's were on it since the inore they were confirmed of its corsureties, together with so much of the mortgage as rectness. related to them, and, on their maturity, the plaintiffs
In Wheaton v. Wheaton, 9 Conn. 96, the mistake was were compelled to pay the assignee the amount due simply that the plaintiff mistook the legal effect of a on them. The plaintiff recovered judgment on the plain note of hand; or, as the court said, the plaintiff five other bonds, and the mortgaged premises were | ignorantly supposed a note payable by the terms of sold under the judgment and without any foreclosure it in three years to be in law a note payable at the of the mortgage, and were purchased by the defend- death of the obligee, and then not actually to be paid, ant. Both he and his counsel intended to sell the fee but to be delivered up. The court thought that it simple of the property, and the sheriff so offered the would be difficult to prove such a mistake, and held premises for sale, but in fact only the equity of re that parol proof was not admissible to show a misdemption passed by the sale. The plaintiffs filed their take of law, bill, claiming to have the proceeds of the mortgaged But this decision is substantially overruled by a later property applied to pay them in proper proportion, decision in the same court, in the case of Northrop v. and insisted that the premises in the defendant's hands Graves, 19 Conn. 548, in which the question is fairly were liable to them as mortgage creditors, thereby met and decided in favor of relieving such mistakes. In claiming to hold the defendant accountable for the that action the plaintiffs, as executors, had paid to sum he had bid for the property under the supposition defendant's wife in his presence, the sum of $500, under that he was buying the fee, yet allowing him only the the supposition that she was entitled to it under the equity of redemption. The court held the defendant will. The fact was, that she was in no wise entitled to not bound by the purchase, the essect of the sale being the money, and defendant knew it when it was paid, to pass a less interest than that which he believed he but did not disclose it. Action of indebitatus assump
sit to recover the money was brought against the edged mistake of his legal rights should not thereby husband, who, in legal effect, had received the money. be deprived of those rights. The executors had paid the money under a mistake, (We shall conclude this subject in one more article.) 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.
CURRENT TOPICS. In delivering the opinion, the chief justice said: We have ever advocated the formation of local bar “We do not decide that money paid by a mere mis- associations, in the hope that out of them would grow take in point of law can be recovered back, as if it had a state association, which should exert a powerful been paid by an infant, by a feme covert, or by a per and benignant influence in elevating the character of son after the statute of limitation has barred an
the profession, in maintaining the honor and dignity action, or when any other merely legal defense exists of the judiciary, and in purifying and harmonizing against a claim for the money so paid, and which legislation. But there is little prospect that such a conmight be honestly retained. But we mean distinctly summation is likely to be effected by local organizato assert, that where money is paid by one under a tion. If effected at all, and we believe that it can mistake of his rights and his duties, and which he was and will be, it must be done by and through the Bar under no legal or moral obligation to pay, and which Association of the city of New York. That associathe recipient has no right, in good conscience, to tion is thoroughly organized, and is steadily gaining retain, it may be recovered back in an action of influence and strength to accomplish the work it has indebitatus assumpsit, whether such mistake be one undertaken. If the lawyers of the state will unite of fact or of law; and this, we insist, may be done with it, and give it their influence and cooperation, both upon the principle of christian morals and the it will directly become, in fact, a state association, common law.” And so do we assert it. In Stedwell | powerful for good both to the profession itself and to v. Anderson, 21 Conn. 139, the above decision was the entire commonwealth. By a provision in the re-affirmed.
constitution of this association, members of the proIn Culbreath. v. Culbreath, 7 Geo. 64, the plaintiff, fession in the state, neither residing nor practicing in an administrator of an intestate's estate, out of mis the city of New York, may become members of the take as to the law of distribution, divided the estate association on payment of the admission fee of fifty among the brothers and sisters of the intestate to the dollars, and such members are exempt from the paiexclusion of the children of a deceased sister. These ment of any annual dues whatever. children subsequenty recovered their proportion of the administrator, and he brought this action against
The following extract from a circular letter of the Bar the distributees to recover back the amount overpaid. | Association is commended to the attention of the proIt was conceded that the mistake was purely one of fession: “This association, which was organized little law, and the question was argued and decided on that
more than a year ago, 'to maintain the honor and ground. The court held that the plaintiff could re
dignity of the profession of the law, to cultivate social cover, laying down the same doctrine expressed in intercourse among its members, and to increase its useNorthrop v. Graves, supra.
fulness in promoting the due administration of justice,' The case of Lammott v. Bowley, 6 Har. & Johns.
has been incorporated under a recent act of the legis(Ud.) 500, is a strong authority in favor of granting | lature of this state. It already nuinbers about five relief from mistakes of this character. Bowley, the hundred members, and is receiving constant accesdefendant, was the devisee of certain lands, but sup- sions to its numbers. It owns a building in the city posed that he was not entitled to them until the hap- of New York and a large and constantly increasing pening of certain contingencies mentioned in the will.
library. It holds meetings once in every month durAnd before the happening of those contingencies, a ing the winter months, for the purpose of considering part of the lands were sold to Lammott with the questions affecting the rights and interests of the bar. knowledge of Bowley. Several years afterward it It has contributed in one striking instance, by earnest was discovered that the true construction and legal protest and effort, to the protection of those interests effect of the will was to give the lands to Bowley when menaced by the improper action of the legislaabsolutely on the death of the testator, and he brought ture. It solicits the cooperation of every member of an action of ejectment for the lands thus sold. Lam
the bar of this state who sympathizes with its objects, mott filed a bill for an injunction. The question, as and who desires to see the bar of this state occupy stated by the court, was simply whether a man who again the position of dignity and influence which i has title to land, but who is ignorant of his right, for
once held, and to which it is entitled.” feits his title by concealing his right when he knows that another is about to purchase the land of a third It has not unfrequently happened that bad cases party. It was held that he did not, and it was said have made good laws, and if the arrest and imprisonto be the true doctrine and well supported by author ment of a woman in the city of New York for inability ities, that a person acting under a plain and acknowl to pay her hotel bill shall result in striking from the
statute book the law making such an outrage possible, appropriation act and the smuggled clause to extend we shall not have occasion to regret the occurrence. the court of appeals' publishing contract. This lady claimed to be, and from aught that appeared
It is now about the time when the greater portion to the contrary was, the wise of Judge Henry Watson, a prominent resident of California. She was alone in
of those who intend to enter the legal profession are the city of New York and a guest at the Coleman making preparation for the beginning of their studies. House. Her husband furnished her with money to
With the fall months the law schools commence their defray her expenses, at regular intervals, by means of sessions, and most of the lawyers the business of the an express company, but for some unexplained reason year; consequently there are at present a large numthe last regular remittance failed to reach her in time ber of young men about to study for the bar, who for her to pay her hotel bill when presented. There are anxiously considering how and where they shall upon she was arrested and taken before Judge be educated. We are frequently asked which is the Shandley, who sent her to the penitentiary for two
better place to prepare for the practice of the law 'months. No wonder “she swooned on hearing the
an office or a law school; and our uniform answer is, sentence.” Giving a fair construction to her state
that neither the one nor the other will properly train ments and proceedings so far as reported, we are
the student. The routine of the office is necessary to unable to discover any thing amounting to fraud or
explain and fix the teachings of the school, and the intent to defraud. Every civilized state has long ago training of the school to systematize the instruction of abolished as barbarous laws allowing imprisonment the oflice. Whatever may have been done in the past, for debt, and if there is any suflicient reason why they
it is not possible to-day, in the United States at least, should be retained for the benefit of hotel keepers we to acquire by solitary reading and the performance of shall be glad to have it explained. Very likely they clerical duties a comprehensive knowledge of legal are more liable to be deceived than other traders, but
science. By such means the student may become if so, they have the remedy in their own hands
familiar with the details of practice, and what is without the aid of a statute—by requiring pre-pay
known as case law, but if he desires to understand ment in case of any doubt. The law in question is a
the fundamental principles of which these are but the disgrace to the state and ought to be expunged from outgrowth, he must seek instruction from those who the statute book.
teach law as a department of knowledge and not as a
mechanical trade. But the school will not fit one for Now that Mr. Heard has given us the “Curiosities practice, and should never claim so to do. The office of the Law Reporters,” will not somebody do us a and the school can, together, give a thorough educalike service in regard to the “Curiosities of the Stat- tion; apart, each will produce only half lawyers. utes ?" Unless we greatly mistake, the mine is a rich one and well worth the working. We have already
OBITER DICTA. made mention of the statute allowing deductions of
Short-sighted -- A draft payable on demand. a certain number of days to be made, on account of good behavior, from the term of imprisonment of con A lawyer's favorite pudding is said to be — suet. victs, and wherein it was gravely provided that the act should not apply to a person sentenced for the
A correspondent in Michigan is responsible for the
following: The clerks of the K--register of deeds term of his natural life. The act providing for the
office were thrown into convulsions in this wise: A construction of the present capitol in this city (laws
young lawyer, who had very recently thrown out his 1804, ch. 67) is something of a curiosity in its way. shingle and was glorying in his first land case, went to It is entitled "An act making provision for improving that office to look up the title. In running it through, Hudson's river, below the city of Albany, and for
he came not unfrequently upon the words “ W. Oak,” other purposes.” The “other purposes ” decidedly especially in the field notes and plat of the government preponderate, as nothing is said about improving around so often, he addressed the register and inquired
survey. Somewhat surprised that W. Oak should be “Hudson's river.” A lottery is, however, provided if he was acquainted with W. Oak, and if he was yet for, from the proceeds of which the building was to alive, for he seems to have entered a large amount of be erected. Very like this is chapter 110 of the laws of land hereabouts, and must have been one of the oldest 1814, which bears the title “An act to raise money
settlers.” The register, perceiving the young gentleto build a bridge over Allen's creek, in the town of
man's mistake, politely informed him that “W. Oak"
stood for white oak, a tree well known, and referred to Le Roy, and for other purposes.” The last section of
as a land mark, etc. “Ah! just so,” said the young this act relates exclusively to medical societies in the
man, glancing over his shoulder to the clerks hiding state. What possible association could the conscript their faces in the liber they were working over; "and,” fathers have discovered between a bridge and a doc- continued he, “Mr. Register, I would like to get you tor? unless it was that both help us over the river." to make for me an abstract of the title of the land,” This dangerous style of legislation is happily now
etc., which the register at once undertook to do, and
our young friend withdrew directly from the office done away with by the constitution, but occasionally
without venturing another look at the suffocated its ghost will appear in some statute, as witness the clerks.
the trial of the cause, neither item was properly chargeaGENERAL TERM ABSTRACT.
ble on this reference. Order should be reversed. FIRST DEPARTMENT.
Case cited, Strong v. De Forest, 15 Abb. 427; Andreus, SUPREME COURT - JUNE TERM.
Receiver, etc., v. The Glenville IVoolen Co. Opinion
by Ingraham, P. J
FIVES. See Real Estate.
Whether a voluntary conveyance, by way of gift, can a draft on the plaintiffs, who were indebted to them,
be set aside at the suit of subsequent creditors, depends for seven hundred and seventy-one dollars and forty
upon the intent with which it was made; and the five cents, to the order of one Ford, and forwarded it
intent is a fact to be proven in the case. The law does by mail, addressed to Ford at St. Louis. The draft never reached Ford. The letter containing it was
not, simply from the conveyance, draw the inference
of a fraudulent design, but it must be proven as a fact. taken from the post-office by some unauthorized per
When there is proof that a person engaged in business son, and the indorsement of the name of the payee
has stripped himself of all his property by a voluntary was a forgery. The draft, with the forged indorse
conveyance to his family, without consideration, and ment, was placed by one Newton in the hands of the
that he nevertheless retained the possession of the defendants for collection, and they presented it to the
property, obtaining credit on the faith of it, and the plaintiffs, who, being ignorant of the theft and forgery,
conveyance was made with the intent to continue and paid the amount to the defendants, who did not notify
contract a future indebtedness in his business, and that them that, in making the collection, they were acting
this was done to avoid the payment of his debts, a case as agents. The defendants paid over the proceeds
showing the fraudulent design is made out, justifying to the principal, for whom they made the collection,
the court in holding that the dishonest intention before any demand upon thom by the plaintiffs.
existed when the deed was made. That was the subOn appeal from judgment against defendants, held,
stance of the case in Sav V. Murphy, 31 N. Y. 50S, that the judgment should be affirmod. The case is
and the special term having, from the facts, drawn the directly within the authority of The Canul Bank v.
inference of fraudulent intent, the judgment was Bank of Albany, 1 Hill, 287. In that case it was held
properly sustained. This differs from the case at bar. that though the defendants were innocent of any in
There is proof horo, and upon conflict on that point tended wrong, yet they had obtained the money of the
the judge has found that the defendant, Peter Valenplaintiffs on an instrument to which they had no title,
tine, was not in business when the conveyance was and they were therefore bound to refund the amount,
made, and that he only acted as agent in the transacalthough they had no notice of the forgery until two
tions out of which his liability arose. We cannot say months after they had transmitted the money to their
that the judge, on all the facts, should have drawn any principals. It was also held that the defendants,
different conclusion than he did. Judgment below in though in point of fact acting as agents, might be re
faror of defendant affirmed. Woodruff et al. v. Valengarded and treated as principals, because in the trans
tine et al. (pinion by Cardozo, J. action of presenting and colleoting the draft, they had acted as if they were principals, and had not disclosed that they were agents. This is precisely this case, and 1. Contracts in contemplation of marriage.- The is decisive of it. Kingston Bank v. Eltinge, 40 N. Y.; plaintiff and defendant are husband and wife. Prior Union Bank v. Sixth National Bank, 1 Lansing, also to their marriage, the note in suit was executed by the cited. Holt v. Ross, as President, etc. Opinion by defendant. After having, on her direct examination, Cardozo, J.
testified generally that the consideration of the note See Husband and Wife.
was a marriage contract between her and the defendSee Mortgages.
ant, the plaintiff, on her cross-examination, further said
that the defendant told her, that if she would be his CASES CRITICISED. See Husband and Wife.
wife, he would give her his note for $5,000, and she CONTRACTS. See Life Insurance. Also, see Husband
'agreed to have him at that time - agreed that she and Wife.
“would marry him.” The referee ordered judgment
for the plaintiff for the amount of the note, and the DAMAGES.
defendant appealed. On appeal, helil, that it seems Resulting from injunction: counsel fees. -- On grant from the evidence that the note was given in considering an injunction in this case an undertaking was filed, ation of plaintiff's promise to marry the defendant, which was in the usual form, and was conditioned that and that therefore the note was made upon, and for, a the plaintiff “will pay to the defendant so enjoined sufficient and valuable consideration. Undoubtedly such damage," etc. The referee thereafter allowed, as this contract (the note) would, at common law, have damages recoverable under the undertaking, a counsel been extinguished by the marriage; but that rule was fee of $20 to defendant's attorney for drawing the changed by the statute of 1819 (ch. 375), by which ($ 3) affidavit on the motion to dissolve the injunction; it was enacted that “all contracts made between peralso a counsel fee of $50 upon the motion (although the sons in contemplation of marriage shall remain in full motion was denied), and a further fee of $125 for ser force.after such marriage takes place.” The subsevices on the trial of the action. Plaintiff excepted to quent marriage of these parties did not, therefore, the report allowing the above items. The exceptions affect or destroy the note. It was a contract to pay, were overruled at special term, from which this appeal. made in contemplation of marriage, and by force of Held, that as the motion to dissolve the injunction was the statute remains in full force after the marriage. denied, and the residue of the sum allowed was for Curtis v. Brooks, 37 Barb. 476, contains no reasoning
HUSBAND AND WIFE.