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Review.

on account of his master, for the purpose of being accountable to him for them, but from his master for the purpose of selling them and accounting for the proceeds. According to R. v. Murray, these circumstances do not constitute the offence of embezzlement ; and that case is quite consistent with the other two which have been mentioned.

Conviction reversed.

Review,

VOL. V. BARBOUR'S REPORTS.

This work is a continuation of the Reports of the Supreme Court of the State of New York, and contains a selection of cases of interest to the public and the profession.

The legislature of the State of New York, in April, 1843, passed a law to protect the rights of females in respect to their real and personal estate.

The second section of the act of the legislature is as follows :—“The real and personal property, and the rents, issues and profits thereof, of any female now married, shall not be subject to the disposal of her husband, but shall be her sole and separate property, as if she was a single female ; except 80 far as the same may be liable for the debts of her husband heretofore contracted.”

A judicial construction of the above section of this statute, appears at page 474 of the volume before us, in the case of White v. White.

This was a case of a married woman, who filed a complaint against her husband, the defendant, to restrain him from the management and control of the real estate of the wife, and from the receipt of the rents, issues and profits of the same, which he claimed to do, and stating that the defendant had expelled the plaintiff from the house and premises, which belonged to her by descent from her father's estate, and that such expulsion was done by force and violence; and that the defendant had refused to let the plaintiff return and live in the house or upon the premises; and accompanied with a refusal of the defendant to provide for her or her family. The parties were lawfully married in 1819, and there were still living, the issue of the marriage, six children.

To this complaint the defendant interposed a demurrer, 1st. that the court had no jurisdiction of the action, and no power to grant the relief demanded. 2d. That the rights of the husband to this property became vested at the time of the marriage, or when the wife came into the possession of this real estate, which was in 1828.

His Honor Judge Mason, of the Sixth Judicial District, heard this cause, and he, in giving his opinion on the case, came to the following conclusion :

1st. That the act of the legislature above mentioned is unconstitutional and void, so far as it relates to existing rights of property in married persons at the time the act was passed.

2d. That the legislature cannot by any statute divest the vested rights of property legally acquired by any citizen of the State, and transfer them to another against the will of the owner.

3d. That the contract of marriage is a civil contract, and that a husband, by marriage, as the law stood in 1828, in New.York, on the birth of an issue of that marriage, became a tenant by courtesy and was entitled to the possession of, and the rents, issues and profits of the wife's real estate during

Review.

his natural life. And that it was not in the power of the New York legislature to pass a law to divest the husband of these rights thus acquired.

4th. That the act of the legislature of New York, so far as it went to de. stroy the vested rights of the husband as tenant by courtesy of the wife's real estate, was repugnant to that provision of the constitution of the United States which prohibits a State from passing any law impairing the obligation of contracts.

After a very able and learned opinion of the judge, he ordered that the defendant should have judgment on the demurrer.

There are many other very valuable cases in the volume before us. One will be found at page 613.

Carroll v. The Farmers' Loan and Trust Company, wherein the court held that the contract in litigation was void for usury.

This was a case where a company, upon an application made to it by a borrower for a loan, issued its certificate payable at a future time, and bearing an interest of six per cent., and took from the borrower an agreement to repay the amount of the certificate with interest at 7 per cent.

We would also call the attention of the public and the profession to another work recently issued, which is a report of cases argued and determined in the Court of Appeals of the State of New York, by George F. Comstock, State Reporter, with notes and references by a member of the New-York bar.

The case of Wells v. The Steam Navigation Company, found at page 204, is one of much interest to the commercial public, as showing what the lia. bility of tow-boats are on the Hudson River,

The plaintiffs were owners of a canal boat engaged in transporting goods on the Hudson river, Erie, and Chemung canals, from New York to Norwich, in the county of Chenango.

The defendants were owners of the steamboat Sandusky, and undertook to tow the canal boat from New York to Albany, and after the steamboat had left the pier at New York, with the canal boat in charge, the canal boat struck against a pier in the upper part of the city, some three or four miles from the place of starting, and by the collision was stove and sunk, damage ing the canal boat and cargo $10,675. The action was brought to recover this damage, and at the Circuit the plaintiff recovered this amount. The Circuit Judge held, that the owners of the steamboat were common carriers. But the Court of Appeals held that they were not common carriers, nor were they bailees of any description.

That they were not carriers or bailees because the property is not delivered to them, or placed within their exclusive custody or control.

That the canal boat, for most purposes, remains in the exclusive care of the owners or servants of it.

In this case a new trial was granted on the ground that the defendants had not been guilty of any want of care, skill or prudence, in the present case, which evidence had been excluded at the trial by the Circuit Judge.

This opinion appears to us to be in conflict with that of Alexan'ler v. Green, 7 Hill's Rep. 533. The Court of Errors in that case, by vote of 17 to 1, decided that tow-boats were common carriers, and that they could be made liable as such for the loss of canal boats held in towage on the Hudson river, although the master and owners of the canal boat, as well as the crew, might remain on board the canal boat during its towage.

We will call the attention of the learned reader to a new edition of Johnson's Cases in the Supreme Court and Court of Errors of the State of NewYork. This work was originally published by Mr. Johnson, the eminent reporter, of New York, in three volumes. The cases were such as arose

Breach of Promise of Marriage. in the State of New-York from and including the year 1799, to and including the year 1803.

The first edition of this work was published as early as 1807. A new edition of this work has been published in 1819, by Messrs. Banks & Gould, with additional cases, with notes and references to the American and Eng. lish decisions, by Lorenzo B. Shepherd, Esq., Counsellor at Law. During the time of ihe running of these cases, Morgan Lewis, James Kent, Jacob Radcliff, Brockholst Livingston, Smith Thompson, Robert R. Livingston, John Lansing, graced the Bench of the Supreme Court and the Court of Chancery of the State of New York. These were the times when the judicial character of the State of New York was rising from its cradle to sterling manhood, and when judges were reverenced for their learning and industry as well as integrity. No man in those days wished to be a judge unless he was qualified for the business.

Mr. Shepherd's Notes to these cases are a great acquisition to the value of the work. They refer to a great number of decisions; and the statutes bearing upon the subject, as well as decisions, have been noted at each case.

The last case reported in the original was that of the People against Croswell, for a libel against Thomas Jefferson ; and the question here discussed was, whether the defendant could give in evidence the truth of the matters charged. The majority of the court, ou motion for a new trial, were against the proposition. This brought forward the celebrated provision of the NewYork law, whereby the truth of the matter contained in the publication charged as libellous in evidence for a justification, provided that the defendant should make it satisfactorily appear that the matter charged as libellous was published with good motives and for a justifiable end.

There is an appendix at the end of the third volume, being cases selected from Mr. Justice Radcliff's notes.

We knew Mr. Justice Radcliff personally. His mind was imbued with learning and equity. Justice and right were the polar stars of his decisions, and while he was on the bench no man who sat as a judge ever was or could be in more public favor.

We hope that the last edition of Johnson's Cases will share the favor of the profession, and we are sure that whoever reads them will find his pains well rewarded.

BREACH OF PROMISE OF MARRIAGE.

A rather novel decision was recently given in the Court of Common Pleas, (England,) in a case for breach of promise of marriage.

Laycock v.Pichslay, (15 Law Times, 279.) The defendant pleaded that before any breach of the promise “ by enher party, it was agreed by and between the plaintiff and defendant, that the plaintiff and defendant should be, and they then were absolved and discharged" from the contract. At the trial, a letter from the defendant was put in, the material passage from which was as follows" I tell you candidly and plainly that I cannot perform the part which would be expected of me.” To which a reply by the plaintiff was given in evidence—“Since it is your wish, we will part.”

It was held by Creswell and Talfourd, J. J., IVilde, C. J., dissenting, that the defendant was not discharged from his promise. Cres

Beauties of Special Pleading.

well, J, observed—"There is no doubt in this case that there was a promise of marriage, and that it was broken before action. The case, then, rests upon the question, Was there a mutual discharge ? It is said the case lies in the letter of the 31st of May, and the answer to it. At the trial the learned judge said, he did not find in those letters any mutual recision of the contract, or any words having a technical effect relieving the defendant from his promise, and I agree with him. He says he will not marry her, and she says, I submit. If we are to travel out of those letters, and all the circumstances are to be looked at, then it was a question for the jury. I think the letter of the 31st of May from the defendant to the plaintiff much stronger than that from the plaintiff to the defendant's mother. But whether it was or was not for the judge to decide upon these two letters alone, be decided rightly ; if, on the other hand, it was for the jury to decide on them, looking at the whole circumstances of the case, they decided rightly; therefore, this rule must be discharged."

Talfourd, J., said " Whether this was a question for the court or for the jury, the verdict was right. This was an engagement lasting a very long time ; some of the best years of the plaintiff's life have been in this manner lost to her. She had a stronger object than the defendant in maintaining the contract. I think all the letters from first to last show an intention on the plaintiff's part to break off the engagement, and on hers to sustain it. It seems to me that her letter in reply to his terminating the contract, is nothing more than a submission, and not a compliance such as he has a right to take advantage of. This rule should therefore be discharged.”

BEAUTIES OF SPECIAL PLEADING.

In a case recently tried in England, before Chief Justice Campbell, (Holloway v. Bentley,) the judge expressed himself in condemnation of the abuses of special pleading, as illustrated by the number of pleas filed by the defendant. The action was brought to recover £300, the amount of a bill of exchange. The defendant pleaded in bar no less than seventeen special pleas, which, instead of simplifying the issue to be tried, appeared, as the Chief Justice observed, - intended to mystify the case, and render it most difficult for the jury to understand.”

THE

New-York Eegal Sbserver

VOL. VIII.)

NEW-YORK, DECEMBER, 1850. [Monthly Part.

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THE NEW-YORK BIBLE AND COMMON PRAYER BOOK SOCIETY, Ap

pellants, v. John E. ANDREWS AND OTHERS, Respondents. THE GENERAL THEOLOGICAL SEMINARY OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED STATES AND OTHERS V. THE SAME RESPONDENTS.

Held, that the gist by will of a sum of money at the death of the survivor of four annuitants,

to an incorporated religious society was a contingent legacy, and lapsed by the expiration of

the charter of the society before the death of the last annuitant. Held also, that had the legacy been vested, still the assignment of it would have been void, as

it was clothed with a trust which from its nature could not be delegated. Held also, that courts of equity bave no power to decree the execution of pious or charitable uses, when there is neither a trustee, nor a cestui que trust, the English cy pres doctrine in

relation to such uses never having been adopted in this State. Held also, that pious uses inconsistent with the general rules of law were not recognized by

the law of this State, even before the adoption of the Revised Statutes. Held also, that a bequest of a sum of money to the General Theological Society of the Protest

ant Episcopal Church in trust to apply the income to certain specified uses was void, the

Seminary having no power by its charter to accept and execute a trust of any description. Held also, that the trust was an entire limitation, and as some of the uses were plainly illegal,

it was void upon that ground also. Decree of Vice-Chancellor declaring the invalidity of both legacies affirmed, but without costs

upon the appeal. Henry Pope died in the year 1827, leaving a considerable real and personal estate. By his will he (among other bequests) gave two Thousand dollars to found a scholarship called “ The Kindred Scholarship,” to the Protestant Episcopal Theological Education Society in this state, and their successors, in trust; which legacy he revoked by a subsequent codicil. He then gave, after the death of certain annuitants, to the children of his nephews and nieces, and the children of Mr. Benton, except one, all his residuary estate, to be equally divided among them ; directing his trustees to sell his lands, if they considered it best, and on the death of the last annuitant, to distribute it among his beneficiaries.

By a codicil to his said will he gave, at the death of the last annuitant named in bis will, fifteen hundred dollars to The Auxiliary New-York Bible Society, to accumulate for twenty-one years, or until it became five thousand dollars; the interest to be applied by VOL. VIII.

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