rence, 41 id. 123; Gordon v. Cornes, 47 id. 608. Board of Water Commissioners of the Village of Clinton v. Dwight. Opinion by Danforth, J. [Decided Dec. 8, 1885.] MUNICIPAL CORPORATION-TORTIOUS ACT OF TAX COLLECTOR-CITY NOT LIABLE.-It may be conceded that for the reasons stated in the opinion at General Term in this case, the personal property of the plaintiff was unlawfully seized and sold for the payment of the tax in question herein, and that if this action had been brought against the constable who made the seizure and sale he would have been liable. But whether the city of Syracuse is liable for his acts is a different question, which is not touched upon in the opinion of the court at General Term. The decision of the learned referee dismissing the complaint appears to have been reversed on the sole ground that the plaintiff was not personally liable for the tax, and that his property had been unlawfully taken for its payment. To entitle the plaintiff to recover against the city for this wrong, it was necessary to show further that the acts of the constable in committing it were authorized by the corporation of the city, or had been subsequently ratified by it in such manner as to make it liable therefor ab initio. The only authority from the city to the constable found by the referee was that Booth, who made the seizure and sale, was one of the constables of the city of Syracuse. That the common council of that city had on the 19th of May, 1877, approved of his selection as one of the officers to collect the city, county and local assessments and taxes remaining unpaid for the fiscal year 1876, and that thereupon the tax-roll and two warrants-one executed by the board of supervisors and the other by the common council of said city-were delivered to said constable for the collection of said taxes. By these warrants, which were proven to have been issued by the tax receiver and treasurer of the city, the constable was di rected to collect from the persons named in the schedule thereto annexed, and named upon the assessment and tax-roll of the Sixth ward of the city for the year 1876, the several sums mentioned opposite to their names, being the amounts assessed to them respectively, with the fees, etc., and in default of payment to levy the same by distress and sale of the goods and chattels of the delinquent, according to said assessment and tax-roll, and of any goods and chattels in his possession in the city of Syracuse. In the assessment-roll and in the schedules attached to the warrants the names of the persons assessed for the taxes in question were stated to be Townsend Lausing and Allen Munroe. The name of the plaintiff does not appear in either. And it was found by the referee that at the time of the seizure the property seized belonged to the plaintiff and was in his possession. The only other fact found by the referee tending to establish a liability on the part of the city was that the purchasers of the plaintiff's chattels at the constable's sale gave their check to him for the amount of the unpaid city and county taxes, which was paid in by said constable to the deputy treasurer in the treasurer's office. Upon these facts the conclusion of the referee was that an action for the tortious taking and conversion of the property of the plaintiff could not be maintained by the plaintiff against the defendant in this action, and that the complaint should be dismissed. These findings of fact disclose no error in the conclusion. No direction or authority from the city to the constable appears, except these warrants, and they certainly did not authorize the constable to take the property of the plaintiff. The city therefore was not bound by the tortious act of the officer outside of the authority conferred upon him by his warrant. The payment of the pro ceeds of the sale to the city treasurer, or his deputy, unaccompanied by any notice to them, or either of them, that the collection had not been made from the proper persons, or their property, but had been made by the unlawful seizure of the plaintiff's property, would not, even if those officials had power, in view of the provisions of its charter, to bind the city in that manner, have been a ratification of the illegal acts of the constable, and the conclusion of the learned referee that upon the facts the city was not liable for such acts was clearly correct. Some other facts appeared in evidence which it is claimed show a ratificacation of the acts of the constable, but these facts are not available to the plaintiff for the purpose of sustaining the reversal by the General Term. It not being stated in the order of reversal that it was made on any question of fact, it must be deemed to have been made on questions of law only, and so regarded, was clearly erroneous. The facts now referred to were not found by the referee, and there was no request to find them. Resort can be had to the evidence for the purpose of sustaining the decision of the referee, but not for the purpose of reversing it. But even if the facts appearing in the evidence could be resorted to, they would not aid the plaintiff. The resolution of the common council agreeing to save the constable harmless was in express terms conditioned that he proceed in such collections according to law, and did not authorize or adopt any illegal or tortious act committed by him. Nor was the refusal of the mayor of the city to comply with the demand made upon the plaintiff in May, 1877, a ratification. That demand was for the immediate payment to the plaintiff, not merely of the money collected out of his property for the city tax, but for the entire value of the property seized and sold by the constable, which largely exceeded the amounts collected both for the city and the county taxes. A refusal to comply with such a demand was not a ratification of the tortious and illegal act of the constable. No other fact appears in the case in any form upon which to predicate a liability of the city in this action. Everson v. City of Syracuse. Opinion by Rapallo, J. [Decided Dec. 8, 1885.] UNITED STATES SUPREME COURT ABSTRACT.* GUARANTY -EXECUTION WITHOUT PREVIOUS REQUEST FUTURE ADVANCES.— When a guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them, except future advances to be made to the principal debtor, the guaranty is, in legal effect, an offer or proposal on the part of the guarantor needing an acceptance by the other party to complete the contract. Davis S. M. Co. of Watertown, N. Y., v. Richards. Opinion by Gray, J. [Decided Dec. 7, 1885.] RAILROAD LAND-GRANTS FORFEITURE - CAIRO & FULTON RAILROAD OF MISSOURI REVERTER TO U. S. -The act of Congress of July 28, 1866, was not such a legislative declaration by Congress of forfeiture of the grant of 1853 to the States of Arkansas and Missouri, to aid in building a railroad from a point on the Mississippi, opposite the mouth of the Ohio, by way of Little Rock to the Texas boundary line near Fulton, as would divest the title of the State of Missouri to unearned lands, and defeat eonveyances thereof by the Cairo & Fulton Railroad of Missouri before the passage of that act. It has often been decided that lands *Appearing in 6 Sup. Ct. Rep. granted by Congress to aid in the construction of railroads do not revert after coudition broken until a forfeiture has been asserted by the United States, either through judicial proceedings instituted under authority of law for that purpose, or through some legislative action legally equivalent to a judgment of office found at common law. United States v. Repentigny, 5 Wall. 267, 268; Schulenberg v. Harriman, 21 id. 63; Farnsworth v. R. Co., 92 U. S. 66; McMicken v. U. S., 97 id. 217, 218; Van Wyck v. Knevals, 106 id. 360. Legislation to be sufficient, must manifest an intention by Congress to reassert title and to resume possession. As it is to take the place of a suit by the United States to enforce a forfeiture, and a judgment therein establishing the right, it should be direct, positive, and free from all doubt or ambiguity. St. Louis, I. M. & S. Ry. Co. v. McGee. Opinion by Waite, C. J. [Decided Nov. 23, 1885.] APPEAL INJUNCTION SUPERSEDEAS — EQUITY RULE 93.-A. decree for a perpetual injunction rendered by a District judge sitting as Circuit judge is not vacated by an appeal allowed within sixty days by the same judge, when in so doing he directs that the appeal shall not operate or suspend so much of the decree as relates to the injunction, and a motion to modify the injunction will not be granted. The injunction ordered by the final decree was not vacated by the appeal. Slaughter-house cases, 10 Wall. 297; Hovey v. McDonald, 109 U. S. 161. It is true that in some of the Slaughter-house cases the appeal was from a decree making perpetual a preliminary injunction which had been granted at an earlier stage of the case; but the fact of the preliminary injunction had nothing to do with the decision, which was "that neither an injunction nor a decree dissolving an injunction is reversed or nullified by an appeal or writ of error before the cause is heard in this court." This doctrine, in the general language here stated, was distinctly reaffirmed in Hovey v. McDonald, and it clearly refers to the injunction contained in the decree appealed from, without reference to whether that injunction was in perpetuation of a former order to the same effect, or was then for the first time granted. The injunction therefore which was granted by the final decree in this case is in full force, notwithstanding the appeal. Leonard v. Ozark Land Co. Opinion by Waite, C. J. [Decided Nov. 23, 1885.] INTERNAL REVENUE-SALE OF TOBACCO BY COMMISSION MERCHANTS-TAX FOR STAMPS BEFORE REMOVAL FROM WAREHOUSE.-A commission merchant engaged in the sale of manufactured tobacco is not liable to be taxed for the revenue stamps required to be affixed to the tobacco before the removal thereof from a bonded warehouse, unless they were at the time of such sale so affixed, whereby they entered into the value of the tobacco and formed a part of the price thereof. Jones, Ex'x, etc., v. Van Benthuysen. Opinion by Waite, C. J. acter of this petition has induced me to examine with considerable care the cases which are supposed to authorize this interference with the proceedings of a court of co-ordinate jurisdiction. The earliest case in this country is that of Ex parte Hurst, 1 Wash. C. C. 186, in which it appeared that Hurst had come from his residence in New York to attend the trial of a case in the Circuit Court for the District of Pennsylvania, in which he was a party; that after his arrival he had also been subpoenaed as a witness in another case upon the docket of the same court: and that while he was at his lodgings he was arrested under an execution from the Supreme Court of Pennsylvania. Upon these facts his counsel moved that he be discharged from the custody of the sheriff. Mr. Justice Washington found that he was privileged from arrest, and discharged him. I have no criticism to make of this case. Indeed it was the constant practice of the District Courts sitting in bankruptcy to discharge from the custody of State officers bankrupts who had been arrested in violation of section 5107, exempting the bankrupt from arrest in any civil action during the pendency of the proceedings in bankruptcy. In re Kimball, 1 N. B. R. 193; In re Jacoby, id. 118; In re Glaser, id. 336; In re Wiggers, 2 Biss. 71; Norris v. Beach, 2 Johns. 294; Bours v. Tuckerman, 7 id. 538; Sanford v. Chase, 3 Cow. 381. Had the petitioner in this case been arrested by process from the State court while in attendance upon this court as a party or witness, the question would have been squarely presented whether another court would have the right thus to deprive this court of his testimony, and to interfere to that extent with the conduct of our business, Two cases in Pennsylvania seem to be in direct conflict upon this point. Com. v. Hambright, 4 Serg. & R. 150; U. S. v. Edme, 9 id. 147. In Parker v. Hotchkiss, 1 Wall. Jr. 269, Hotchkiss, the defendant, who was a non-resident, was attending the Federal court as a party interested in a suit brought by Parker. Parker having been nonsuited, issued a summons upon the same day, and served it upon Hotchkiss at his lodgings. The service was set aside as a violation of his privilege; the only question discussed being whether the privilege extended to writs of summons as well as to writs of capias. There was nothing exceptional in this application, since it is a matter of every-day occurrence for courts to set aside service of their own process in favor of a privileged party. Person v. Grier, 66 N. Y. 124; Matthews v. Tufts, 87 id. 568; Halsey v. Stewart, 4 N. J. Law, 366; Mountague v. Harrison, 3 C. B. (N. S.) 292; Henegar v. Spaugler, 29 Ga. 217; Miles v. McCullough, 1 Bin. 77. See also In re Healey, 53 Vt. 694; Bridges v. Sheldon, 7 Fed. Rep. 17, 42; Watson v. Superior Court of Detroit, 40 Mich. 729. The difficulty in this case however arises from the statutes of the United States, one of which (§ 720) inhibits injunctions to stay proceedings in any court of a State except in bankruptcy cases, and the other of which (§ 725) limits our jurisdiction in cases of contempt to misbehaviors of any person in the presence of the court, or so near thereto as to obstruct the administration of justice, the misbehavior of officers in their official transactions, and disobedience to the lawful writs, processes, orders, rules, decree, or commands of these courts. Now while this in terms is not a petition for an injunction, the petitioner does pray for an order restraining Cuddy from proceeding or taking any steps against the petitioner based upon the service of the process from the Superior Court, and for general relief. I take it that the words "writ of injunction" used in section 720 would include every process or order, irrespective of its form, the office of which is to stay proceedings in the State court. Even if petitioner should waive this portion of his relief aud proceed only for a contempt, he would be seeking to accomplish indirectly the same purpose. I know of but two exceptions to the general rule contained in section 720, one being of cases in bankruptcy, and the other of cases arising under the limited liability act. But again conceding that the service of the writ of garnishment was a contempt at common law (and this was the ruling in Cole v. Hawkins, Andrews, 275, and in some other cases), I doubt seriously whether it is a misbehavior in the presence of the court or so near thereto as to obstruct the administration of justice. Clearly it falls within no other clause of section 725. These words seem to me to refer rather to riotous or unseemly conduct in the court-room, or in such immediate proximity thereto as to interrupt the sessions of the court or the orderly conduct of business therein, and not to embrace constructive contempts of its authority. Cir. Ct., E. D. Mich., July 13. 1885. Ex parte Schulenburg. Opinion by Brown, J. PATENTS-INFRINGEMENT PARTIES PLEADING DEMURRER.—Where complainant is a mere licensee, and the owner of the patent is not made a party, a bill for the infringement of the patent is demurrable. Gamewell Fire-alarm Tel. Co. v. City of Brooklyn, 14 Fed. Rep. 255; Wilson v. Chickering, id. 917; Ingalls v. Tice, id. 297: Gayler v. Wilder, 10 How. 477; Nellis v. Pennock Co., 13 Fed. Rep. 451; Nelson v. McMann, 16 Blatchf. 139; Moore v. Marsh, 7 Wall. 520. Cir. Ct., Dist. N. Y., Nov. 14, 1885. Bogart v. Hinds. Opinion by Coxe, J. [See Cottle v. Krementz, 25 Fed. Rep. 494.] WISCONSIN SUPREME COURT ABSTRACT. PUBLIC LANDS JURISDICTION OF STATE COURT WHEN FINAL DECISION OF SECRETARY OF INTERIOR STATE COURT MAY INTERFERE.-Plaintiff's complaint alleged that he had settled upon land of the United States as a homestead claimant, and had complied with the requirements of the law as to residence and cultivation; but that defendant had wrongfully and by force taken possession of the land, and in a contest before the secretary of the interior department had, by perjury and false evidence, obtained a final certificate for the land, and was perfecting his title in violation of plaintiff's rights, and praying that defendant be adjudged to release all his claim to the land to plaintiff, and plaintiff have judgment that he had complied with the homestead law, and that he is entitled to the land. Held, that the State court had no jurisdiction, and could afford plaintiff no relief. (2) A State court may have jurisdiction to inquire into the homestead rights of a party to the patent of the United States under the laws of Congress, and to reverse the decision of the land department adverse to such right when procured by fraud or perjury, but such jurisdiction can be exercised effectually only when the title is vested in a party amenable to such jurisdiction, so that a judgment could be entered which would act effectually upon the title, and compel defendant to convey it to the party defrauded. This doctrine is well settled by this court and other State courts, and by the courts of the United States. Lamont v. Stimson, 3 Wis. 545; Bross v. Wiley, 6 id. 485; Lombard v. Cowham, 34 id. 486; Morton v. Green, 2 Neb. 441; Corbett v. Wood, 21 N. W. Rep. 734; Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 id. 298; Litchfield v. Register, id. 575; Johnson v. Towsley, 13 id. 72; Shepley v. Cowan, 91 U. S. 330; Marquez v. Frisbie, 101 id. 473; Smelting Co. v. Kemp, 104 id. 636; Steel v. Smelting Co., 106 id. 447; Baldwin v. Stark, 107 id. 463; Smith v. Ewing, 23 Fed. Rep. 741; Casey v. Vassor, 4 McCrary, C. C. 127. Empey v. Plugert. Opinion by Orton, J. [Decided Dec. 1, 1885.] MASTER AND SERVANT-FELLOW SERVANTS-TRAIN DISPATCHER AND BRAKEMAN-RUNNING TRAIN OVER TRACK OF ANOTHER COMPANY.-A general manager who prescribes rules and a train dispatcher who gives special orders for the running of trains, and a head brakeman on a freight train, are not fellow servants. Darrigan v. New York, etc., R. Co., 24 Am. L. Reg. (N. S.) 452. The employees of a railroad company that runs its trains over a portion of the road of another company, and while running over such road is required to obey the rules and regulations prescribed by the latter company for the running of trains, and to obey the special orders of their authorized agents, in that respect are not fellow servants with the employees of the latter company. Phillips v. Chicago, etc., R. Co. Opinion by Cassoday, J. [Decided Dec. 1, 1885.] - ATTORNEY AND CLIENT SETTLEMENT OF JUDGMENT BY DEFENDANT'S ATTORNEY WITHOUT NOTICE ΤΟ PLAINTIFF'S COUNSEL. Settlement of a judgment in an action for damages for a personal injury, effected by defendant's attorney with the plaintiff, a married woman, without notice to or consultation with her counsel, held, not binding, and satisfaction of judgment set aside. It is doubtful if the attorney has any lien upon the judgment for his fees which would prevent his client from settling and discharging it. In Kusterer v. City of Beaver Dam., 56 Wis. 471, it was held that "a party having a cause of action in its nature not assignable, cannot by an agreement before judgment or verdict thereon give his attorney any interest therein, or in the costs which would be incident to a recovery, which will survive the settlement of the cause of action." Whether a different rule should obtain where the action has gone to judgment is a point not necessarily involved in that decision. There are cases which hold "after judgment the attorney who has procured it has a lien upon it for his costs. This lien is upheld upon the theory that the services and the skill of the attorney have procured the judgment. There is then something upon which a lien can attach, and the courts uphold the lien by an extension to such cases of the principle which gives a mechanic a lien upon a valuable thing, which by his skill and labor he has produced." Coughlin v. N. Y. C. & H. R. R. Co., 71 N. Y. 443, 448. We shall not stop to inquire whether this doctrine of giving the attorney a lien after judgment, but denying it before judgment, rests upon solid grounds or not; for as we understand it is necessary in either case, in order to preserve the right against a settlement made in good faith, that notice should be given, which was not done in the present case. Courtney v. McGavock, 23 Wis. 620. So it is doubtful if those authorities which have gone the furthest in protecting the attorney's lien would hold that it attached here. Be that as it may, upon the other grounds we think the satisfaction should be set aside, because under the circumstances it is fraudulent as to the plaintiff. Such settlements effected by an attorney on the one side with the opposing party on the other side should be closely scrutinized, and should never be sanctioned where there is any appearance that undue influence was used in effecting them. In this case the plaintiff's husband acted for or with her in making the settlement. But the affidavits conclusively show that the settlement was made by the defendant's attorney with them without the knowledge of her attorney, though he was near at hand, and might and should have been consulted in the matter. Under the circumstances it was the plain, professional duty of defendant's attorney to have told both her husband and plaintiff to consult her attorney in regard to the settlement. In the language of the chief justice in Watkins v. Brant, 46 Wis. 419, no such transaction should ever be consummated, as it were, ex parte, in a lawyer's office. The defendant's attorney presumably acted without conscious bad faith in the matter; but the effect was the same, an undue advantage was attained over the plaintiff. And we hold that a settlement brought about in the way this was is in the nature of a fraud upon the plaintiff, and does not bind her. The remarks made by the chief justice in the case just cited, and by Mr. Justice Taylor in Bussian v. Milwaukee, L. S. & W. Ry. Co., 56 Wis. 326, as to what professional ethics require under such circumstances, are exceedingly appropriate to guide the conduct of attorneys in such a case. Kelly. Opinion by Cole, C. J. [Decided Dec. 1, 1885.] Voell v. ILLINOIS SUPREME COURT ABSTRACT.* SPECIFIC PERFORMANCE-NEW AGREEMENT AFTER PRIOR TRANSACTION SET ASIDE AS IN FRAUD OF CREDITORS-EVIDENCE-PRIVATE COMMUNICATION-ATTORNEY AND CLIENT.-The owner of a tract of land conveyed the same to his son-in-law for $1,200, taking five promissory notes of $200 each from the grantee, one to each of the grantor's five daughters, the other $200 being the grantee's wife's share of the purchasemoney. The conveyance was set aside at the instance of creditors of the grantor, and the notes given for the purchase-money ordered to be surrendered and cancelled, which was done, except as to one note which had been paid. After the land was advertised for sale in the interest of the creditors, the grantor agreed to discharge the judgments and the lien on the land, and did so upon the agreement of the grantee to pay him $1,200, which he afterward refused to do, or give his notes for the price. Held, that a court of equity would compel him to pay the sum really due from him, and that he could not defeat a suit in which relief was sought in that regard, on the alleged ground the conveyance was originally made to defraud creditors. (2) Where two parties go together to an attorney, and make statements to him in the presence of each other, such statements are not confidential communications intended to be withheld from the opposite party, and there is no error in permitting the attorney to testify thereto in a suit between the parties relating to the subject-matter of such communications. Lynn v. Lyerle. Opinion by Walker, J. AGENCY-DEPOSIT OF MONEY OF PRINCIPAL BY THE AGENT -LIABILITY OF DEPOSITARY TO AGENT FOR DELIVERING THE MONEY ΤΟ THE PRINCIPAL. A sub-contractor received money of the general contractor in excess of what was due him, as the agent of the general contractor, to pay debts due to laborers and material-men, whereby to protect the principal from liability from the enforcement of liens, but instead of paying out the money, deposited it with another for safe-keeping, under a promise of the latter to pay the same only to the depositor, or upon his written order. The depositary, on the demand of the principal to whom the money belonged, delivered the same to him. Held, that the depositary was not liable to the agent for a breach of his contract, the principal having the right to revoke the agency of the sub-contractor at any time before he paid out the money as directed. In such case the delivery of the money to the true owner will relieve the depositary of liability to the agent from whom he received it. Solomon v. Nicholas. Opinion by Scholfield, C. J. AGENCY-ESTOPPEL OF AGENT TO ALLEGE ILLEGALITY OF CONTRACT AS AGAINST PRINCIPAL. - A person as the agent of a firm of contractors for the construction of a railroad, procured sub *To appear in 113 Illinois Reports. scriptions for the purpose of securing the location of a depot at a certain point on the road, in which those who made the subscriptions were interested, the contractors having the power, under the terms of their arrangement with the railroad company, to fix the location of the depot at the place desired. The agent who thus procured the subscriptions was at the time a director in the railroad company, and having applied the proceeds of the subscriptions to his own use, in a suit by his principals to recover from him the money so obtained, he set up the supposed illegality of the contract resulting from his official relation to the railroad company as a defense; but it was held he was estopped from relying upon such defense as against his principal. Snell v. Pells. Opinion by Dickey, J. THE NEW YORK CITY BAR ASSOCIATION AND THE CODE. MY DEAR SIR: Permit me to address a line to you in regard to the action had by the "Bar Association" last evening upon the resolutions you proposed for discussion in relation to the codification of the civil law. Allow me to premise by stating that I am strenuously opposed to your Code and to your views as to such codification. But last evening-not having attended a meeting of the association for a year or more, and having been informed that a full discussion was to be had upon this proposed codification, you being the champion in its favor, I concluded to go to the meeting. I went there for instruction, and to hear your arguments, and the refutation of those arguments. I believe there were many members present who went for the same reason. Instead of fair discussion, a fight on parliamentary tactics was put in substitution relative to the report of a committee. It appeared that the bar association preferred to occupy the whole time in the preliminary business matters regularly coming up before it, rather than to finish up such business and then to allow its members time for profitable discussion on some subject germane to the object of the society. Now, as one member of this society, I do not think this action fair to you, fair to myself, or fair to those who went last evening to hear what you had to say. Your age and your standing at the bar entitle a hearing when you wish to be heard by members of an association to which you have belonged since its organization. I am one member ready to unite with others of the association in calling a special meeting to hear all you have to say, and to afford full and fair discussion in this matter. I am, sir, yours very respectfully, FRANCIS T. GARRETTSON. Hon. DAVID DUDLEY FIELD, Washington Building, Broadway. 1 BROADWAY, Dec. 31, 1885. MY DEAR SIR: I received only lately your letter dated the 9th, written about the meeting of the City Bar Association held the evening before. You take that meeting very much to heart, and I do not wonder. But for my part I do not take it to heart at all. I was naturally indignant at first, but I soon reflected that the members whose conduct so annoyed you acted after their kind, and I ceased to care. A's for a new meeting to hear me, I must decline the honor. Talking to men who stop their ears is not exactly a pastime. I have no breath to waste on those who do not wish to hear. I ask no favor. The Code will take care of itself. These men are but as a drop in a bucket. If the Code is a bad thing they cannot put it up; if it is a good thing they cannot put it down. The general judgment of jurists will determine its true place in the juridical world. Having thus replied to your suggestion of a new meeting, I may add a little to your knowledge of the old one. You recollect the episode of a contradiction read out to me from a volume of California statutes, intended to show my audacity in saying that I did not think there had been five important amendments of the California Civil Code in the last eight years. The chairman read amid shouts of laughter, at my supposed discomfiture, the title of a statute of 1880, entitled "An act to amend sections 69, 70, 80, 137, 226, 243, | 244, 249, 253, 258, 265, 273, 593, 596, 598, 603, 1241, 1245, 1247, 1265, 1363, 1364, 2283, 2287, 2289, of an act entitled an act to establish a Civil Code, approved March 31, 1872," and stopped there. If he had gone on, he would have turned the laugh the other way, by reading as follows: "Conferring upon the Superior Courts, the judges or officers, the jurisdiction and authority heretofore exercised in certain cases by the courts abolished by the Constitution, their judges or officers." I took the book, but there was no time to read. Now I do not intimate that the chairman was aware of what followed the words he read, but the incident shows the unfairness of forcing a vote without giving time for examination. I will mention one more incident out of many, showing the same thing. The criticisms of the late Professor Pomeroy were dwelt upon. I said they could all be explained away, and mentioned a letter on the subject from his son, which I could bring if time were given. This was refused. But no matter. It is just as well, and I will close with an extract from his letter: 'It has been claimed, I believe, in certain quarters that these articles show that my father was not in favor of the codification of the private municipal law; that he did not consider the Civil Code of California as an improvement on the pre-existing state of the law, and consequently did not think that the adoption of the proposed Civil Code in New York would be of any advantage to the profession or general public in that State. This impression, if it exists, is erroneous." of his property with intent to defraud his creditors. and contracted the debt in contemplation of such a disposition and removal." A motion at Special Term I was made to vacate the order on the ground that the merchandise sued for was sold on a credit not expired when the action was brought. It was denied, and an appeal was taken. The report seems to indicate that the facts showing removal and disposition of property were relied upon to sustain an inference that the debtor contemplated such removal and disposition when he contracted the debt. At all events, if there was other evidence of what the debtor contemplated when he purchased the goods, the court ignores it. The order of arrest was sustained. The opinion of the court (by Daniels, J., concurred in by Davis, P. J., and Brady, J.) contains the following: When (a) fraudulent disposition of property has taken place at the time of the making of the contract, that fact itself would avoid a credit obtained by means of its concealment in incurring the liability. In principle the same effect should also folsuch a disposition of the debtor's property, after he contracted the debt and secured the credit, for it is always implied in such transactions that the debtor will make no disposition of his property which will operate as a fraud upon his creditor. The rule is very well settled that fraud in the contraction of the debt will avoid the credit agreed to be given by the contract creating the debt; and the reason on which it has arisen would seem to be equally applicable to a disposition made by the debtor of his property when he intends thereby to defraud his creditors. The inquiry therefore is whether the defendant has made such a disposition of his property." Zenner v. Dessar, 22 N. Y. Week. Dig. 403 (opinion by Davis, P. J., concurred in by Brady and Daniels, JJ.), was precisely the same case over again in all its parts, with the possible exception, that the ground of arrest did not include the allegation that the defendant had "contracted the debt in contemplation" of subsequent fraudulent disposition of his property.' The court held distinctly that a fraud committed subsequent to the making of the contract would not avoid a credit, and as the credit was not avoided, no action could be maintained pending the maturity of the debt, and as the maintenance of the cause of action was essential to uphold an order of arrest, the order must be vacated. Apparently the court takes no pains to limit or distinguish Arnold v. Shapiro or Muser v. Lissner, 67 How. Pr. 509. I await with trepidation the next decision in this department upon this question. Yours very truly, Very truly yours, NEW YORK, Dec. 30, 1885. J. B. G. FRANCIS T. GARRETTSON, Esq. CORRESPONDENCE. A COMPLAINT OF JANUS. Editor of the Albany Law Journal: When the Supreme Court in different departments decides the same question both ways, as in Kaufman v. Schoeffel, and Graff v. Kinney, 37 Hun, 140 and 405, a lawyer can be right in two departments at least, until the Court of Appeals settles it, by maintaining one side in one and the converse in the other; but when the same court, in the same department, composed of the same justices, decide a question, not reviewable ordinarily in the Court of Appeals, in opposite ways, he knows not what course to take. Arnold v. Shapiro, 29 Hun, 478, was an action to recover the purchase-price of merchandise. The complaint did not allege fraud in contracting the liability. An order of arrest was granted upon extrinsic facts. showing "that the debtor had removed and disposed |