co-executor for negligently permitting such co-executor to appropriate moneys of the estate, especially the fruits of a certain mortgage. This mortgage was released by both executors, but the co-executor alone received and disposed of the money. The defendant executor accounted for all the moneys of the estate in his hands. Held, that the defendants were not liable. It was the right of each executor to receive and hold the fund of the estate. Edmunds v. Crenshaw, 14 Pet. 166. Neither can be held responsible for the waste or misconduct of the other, unless there be some act or agreement on the part of the one sought to be charged by which the estate has gone into, or has been negligently suffered to remain in, the exclusive possession and control of the one by whose misconduct the loss occurs. Langford v. Gascoyne, 11 Ves. 333. But an executor is not held any further than he is shown to have participated in the misappropriation. Peter v. Beverly, 10 Pet. 562; Brazier v. Clark, 5 Pick. 104; Sterrett's Appeal, 2 Penn. 419. It is contended that the defendant is liable in this case because he must be treated as having concurred in the wrong by joining in the release by which his co-executor was enabled to obtain possession of the money due on the mortgage and to mingle it with his own property. The rules which govern the liability of co-executors follow in most respects the rules which prevail as to cotrustees. But while the latter are not liable for the money which they have not received, although they join in receipts given for the same, it was at one time held that the former were liable in such cases. But this rule, which does not seem to have been maintained with entire uniformity, is declared in Wms. on Ex'rs (5th Am. ed.), 1660 to have been greatly relaxed in favor of executors; and in Shipbrook v. Hinchenbrook, 16 Ves. 478, it is declared to have been broken down. See Joy v. Campbell, 1 Sch. & Lef. 328; Hovey v. Blakeman, 4 Ves: 608; Semfield v. Howes, 3 Bro. Ch. 95; McNair's Appeal, 4 Rawle, 157; Monell v. Monell, 5 Johns. Ch. 283; Monahan v. Gibbons, 19 Johns. 426; Ochiltree v. Wright, 1 Dev. & Bat. Eq. 336; Perry on Trusts, $$ 421-426. McKim v. Aulbach. Opinion by Colt, J.

MANDAMUS-WHEN LEGAL REMEDY WILL NOT LIE. Mandamus will not lie to compel the audit of a claim against a municipal corporation when the claimant has a right of action for such claim against the corporation after complying with certain statutory preliminaries. Lexington v. Mulliken, 7 Gray, 280; In re Boyce, 2 Cowen, 444; Ex parte Lynch, 2 Hill (N. Y.) 45; Commonwealth v. Commissioners of Allegheny, 10 S. & R. 317; State v. Union Township, 8 Vroom, 84; State v. County Judge, 5 Iowa, 380. Wheelock v. Auditor of Suffolk County. Opinion by Gray, C. J.

REMOVAL OF CAUSE ON GROUND OF RESIDENCE OF PARTIES. An equitable action brought in a State court by a creditor residing in Massachusetts against a debtor residing in Texas, and the trustee residing in Massachusetts, of a fund the income of which was payable to the debtor, to compel the application of the income to the payment of the debt is not removable to the Federal Court. Under the Constitution of the United States, article 3, section 1, and amendments, article 10, it would seem that the jurisdiction of the courts of the United States, so far as it depends upon the citizenship of the parties, may extend to any controversies between citizens of different States, but cannot include controversies between citizens of the same State, and under every act of Congress passed before March 3, 1875, concerning the removal of causes from the State courts to the Federal courts, it was held that all the defendants who were real parties in interest must be citizens of a different State from the plaintiff in order to entitle them or either of them to

remove the cause. Bryant v. Rich, 106 Mass. 180, and cases cited; Florence Sewing Machine Co. v. Grover & Baker Co., 110 Mass. 70, and 18 Wall. 553. The opinion of a majority of the Supreme Court in Meyer v. Construction Co., 100 U. S. 457, and the unanimous judgment of that court in Ayers v. Chicago, 101 U. S. 184, have dispelled the doubts created by decisions in some of the Circuit Courts, and have authoritatively determined that no removal can be had under the act of 1875, unless all those on one side of the real controversy are citizens of different States from all those on the other side. If this bill is founded upon the general jurisdiction of this court in equity, the trustee is not merely a formal, but a necessary party, entitled to be heard upon the question whether he is under the duty and obligation of holding the fund during the life-time of the defendant Adams for his exclusive benefit, free from all claims of his creditors. Sparbank v. Cloon, 125 Mass. 263; Burnham v. Chicago D. & M. R. Co., 4 Dill. 503; Burke v. Flood, 1 Fed. Rep. 540; Budny v. New York Savings Bauk, 2 id. 14; Merchant's Bank v. Thompson, 4 id. 876. Broadway National Bank v. Adams. Opinion by Gray, C. J.

PENNSYLVANIA SUPREME COURT AB

STRACT.

LIS PENDENS DOCTRINE OF PURCHASER FOR VALUE. The doctrine of lis pendens has been essentially modified by the later decisions. In the earlier cases, both in England and this country, it was held that lis pendens was notice to all the world, with the same effect as the registration of a deed under the recording acts as to constructive notice of the conveyance. More recent cases however place the doctrine upon another and we think a sounder basis. In the leading case of Bellamy v. Sabine, 1 DeG. & J. 580, it was said by Lord Chancellor Cranworth: “It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him, not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute so as to prejudice the opposite party. It was said in Murray v. Lylburn, 2 Johns. Ch. 444, that the doctrine of lis pendens may not apply to movable personal property on the ground of the necessities of commerce; in the County of Warren v. Marcy, 7 Otto, 96, that it does not apply to negotiable securities; and in Leitch v. Wells, 48 N. Y. 586, that it does not apply to stocks. (2) M. purchased stock of E. for $6,450, paying $3,700 cash, giving up E.'s check for $2,500, and receipting a coal bill due from E. for $250. Held, that M. was a purchaser for value. It is true the taking of a security as collateral for an antecedent debt does not make the creditor a holder for value, so as to give him the rights of a bona fide purchaser, but the rule is otherwise where it is taken in payment or extinguishment of the debt. In such case the contract is executed and the debtor released. See Sinclair v. Healy, 4 Wright, 417; Shufeldt v. Pease, 16 Wis. 659, where it was held that “a purchaser of goods from a fraudulent vendee, whose title is voidable on the ground of fraud, who takes them in payment of a preexisting debt against said fraudulent vendee, is a purchaser bona fide, and as such is protected in his purchase against a claim to the property made by the party defrauded. Barnett v. White, 54 Miss. 57, where it was held that when the antecedent debt was extinguished, it was a good consideration.” Paddon v. Taylor, 44 N. Y. 371; Pratt v. Coman, 37 id. 441; Brown v. Leavitt, 31 id. 113; Bank v. Babcock, 21 Wend. 500; Burns v. Rowland, 40 Barb. 374. Dovey's Appeal. Opinion by Paxson, J. [Decided Feb. 21, 1881.]

that: " 'Besides men attainted in a præmunire, every person that is attainted of high treason, petit treason, or felony, is disabled to bring any action, for he is extra legem positus, and is accounted in law civiliter mortuus," led Chancellor Kent to think, as he intimated in Troup v. Wood, 4 Johns. Ch. 228, that every person attainted of felony was accounted in law civiliter mortuus; but in a later case, Planter v. Sherwood,

6 id. 118, he said this dictum of Lord Coke "is not to be taken in the full latitude of expression," and after reference to other expressions of Lord Coke (Co. Litt. 132, a, b, 133, a; 3 Inst. 215), he says: "The strict civil death seems to have been confined to the cases of persons professed, or abjured, or banished the realm, and I do not find that it was ever carried further by the common law." This view is well sustained by authority. See Bannister v. Trussel, Cro. Eliz. 516; Ramsay v. Macdonald, 1 Wils. 217; Foster's Crown Law, 61, 62, 63; Coppin v. Gunner, 2 Ld. Raym. 1572. The term "civil death," as used in the books, seemed to involve, first, a total extinction of the civil rights and relations of the party, so that he could neither take nor hold property, but his estate passed to his heirs as though he were really dead, or was forfeited to the crown; and of this kind were the cases of monks professed, and abjuration of the realm. But profession was a creature of the ecclesiastical law, and the relinquishment of the estate was voluntary. 1 Domat. 25, art. 13. This species of civil death terminated when popery was abolished in England, and the monasteries taken into the hands of the king. Abjuration of the realm was abolished by the Statute of James I, ch. 28. Second, an incapacity to hold property, or to sue in the king's courts, attended with forfeiture of the estate and corruption of blood; and the king took the property to the exclusion of the heirs. Jackson v. Catlin, 2 Johns. 262; 1 Domat, 531, § 14. There were cases in the English law, where the party was sentenced to perpetual imprisonment or perpetual banishment for an offense not attended with forfeiture of his estate. 2 Inst. 199; Stat. Westm. I, ch. 20; 2 Inst. 201, n. 10; Stat. Westm. II, ch. 35; 2 Inst. 437, 439. And it would seem that perpetual imprisonment or perpetual banishment, without forfeiture of the estate, did not in England produce civil death. Str. 872; Ld. Raym. 1572. As crimes do not work a forfeiture of the estate or corruption of blood in Vermont, there is lacking that taint from crime which

seems to have constituted at the common law one of the essential elements of civil death. See, also, Northfield v. Vershire, 33 Vt. 110; State v. Cooper; 16 id. 551. Town of Baltimore v. Town of Chester. Opinion by Veazey, J.

EXECUTION -TROVER FOR PROPERTY SEIZED BY TENANT IN COMMON-POSSESSION OF LANDS. (1) In an action of trespass or trover, one tenant in common of personal property, can recover for only his interest from an officer who has regularly taken and sold the entire property on execution. Ladd v. Hill, 4 Vt. 164; Bradley v. Arnold, 16 id. 382; White v. Morton, 22 id. 17; Addison v. Overrand, 6 T. R. 766; Sedgworth v. Overrand, 7 id. 279; Bloxham v. Hubbard, 5 East, 407. In Chaudler v. Spear, 22 Vt. 407, the judgment was reversed, because the plaintiff was allowed to recover the entire value of the property; and the court distinguish such an action from an action by one tenant in common to recover possession of the real estate owned in common, against a stranger to the title. This last case has been recognized as the settled law on this subject in Hubbard v. Foster, 24 Vt. 546; and Briggs v. Taylor, 35 id. 66. (2) Occupying a sugar place from year to year, only for the purpose of making sugar, which place is separated from the home farm by intervening lands owned by others, is not actual or continuous possession. See Flanagan v. Ward, 33 Vt. 313;

Paine v. Hutchins, 49 id. 314. Wilson v. Blake. Opinion by Ross, J.

EXEMPTION-TEAM KEPT FOR USE. - Under a statute exempting from an attachment a horse kept and used for team work, it is not necessary that the horse be in actual use at the time of attachment, to be ex

empt. It is exempt if the owner keeps it with the honest intention and purpose of using it within a reasonable time for team work, to enable him, with the aid of the animal, to procure a livelihood. Future intended use is as controlling upon the question of It has never been underexemption as any past use. stood that an actual user of the animal for team work at the time its exemption from attachment was claimed was necessary; such a construction would defeat the evident purpose of the statute. In Webster v. Orne, 45 Vt. 40, the past use of the horse for team work seems to have been regarded as decisive; for the horse was not in use for team work at the time he was at

tached, and it does not appear that he was then on the farm, where he had been so used, and his owner was then intending to sell him. Future intended use is as controlling upon the question of exemption as any past use. "Kept and used" signifies that the animal must be kept for team work and must be in actual use, or it must be kept with the honest intention and purpose of the owner, within a reasonable time thereafter, to use him for team work as occasion may require, to enable him, with the aid of the animal, to procure a livelihood. Sullivan v. Davis, 50 Vt. 648, distinguished. There the colt claimed to be exempt was too young for team work. Rowell v. Powell. Opinion by Royce, J.

Judgment affirmed — Beyer v. The People; Mullaly v. The People; Shipply v. The People; Read v. The People. Judgment reversed and venire de novo ordered Perry v. The People; Rogers v. The People. Judgment affirmed with costs-Rich v. Herr; Schrauth v. The Dry Dock Savings Bank; The Continental National Bank of New York v. Haskin; Bliss v. Hoggson; Hilton v. Fonda; Stewart v. Fonda; Stimson v. Wrigley; Syracuse Savings Bank v. The Town of Seneca Falls; Tarbell v. West; Holsapple v. The Rome, Watertown & Ogdensburgh Railroad Company. Judgment reversed and new trial granted, costs to abide event-Potts v. Mayor; Fuller v. Robinson; Knapp v. Simon; Kiff v. Youmans. Judgment reversed and leave granted to answer over on payment of costs-Lorillard v. Clyde. Appeal dismissed with costs-Raymond v. Husson; Jessuran v. Mackie ; Schreyer v. Bauernschmidt. Appeal dismissed without costs-Seymour v. Church. Order affirmed with costs In re Protestant Episcopal Public School of New York; In re accounting of Robert J. Dean. Order affirmed without costs- - Salter, appellant, v. Utica & Black River Railroad Company, respondent; Salter, respondent, v. Utica & Black River Railroad Company, appellant. Order of general

and special terms reversed and motion denied with costs- Schuehle v. Reimanu. Judgment reversed so far as it awards plaintiff any part of the estate of Samuel Norsworthy by reason of the death of Francis Norsworthy, with costs, and case remanded to Supreme Court to ascertain and award appellant so much of said part as he is entitled to- Wylie v. Lockwood. Motion denied - Dambmann v. Schultiny. Motion denied without costs - Snyder v. Sherman. Motion granted without costs - Gifford v. Town of Gravesend.

The Albany
Albany Law Journal.

THE

ALBANY, OCTOBER 22, 1881.

CURRENT TOPICS.

HE absence of the editor for a fortnight will explain delays in answering and in publishing communications.

Both political parties have made excellent nominations for associate judge of the Court of Appeals and for attorney-general of this State. Judge Finch has sat on this bench by appointment for more than a year, and has amply fulfilled the expectation of the public. He is an accomplished scholar, and a calm, clear-headed, industrious and well-instructed lawyer, of fit age and health, and of the best character and the most agreeable address. He deserves especial and exceptional praise as a writer. The volumes of the Court of Appeals reports will show no pieces of judicial writing superior very few equal-to his opinions. For verification of this statement, we refer to his opinions in Cronin v. People, 82 N. Y. 318; S. C., 22 Alb. L. Jour. 430; Sibbold v. Bethlehem Iron Company, 83 N. Y. 378; and In re Eldredge, 82 N. Y. 161; S. C., 22 Alb. L. Jour. 350. These are models of judicial writing; the two latter especially are among the most admirably expressed opinions to be found in our books. - Mr. Schoonmaker has been county judge of Ulster county, and served a term as attorney-general with great credit. He is a gentleman of the most excellent reputation and professional attainments, of a judicial cast of mind, of large experience at the bar, and of gravity and dignity of character. In the river counties Mr. Schoonmaker is very intimately and most favorably known. The people of our State cannot do amiss in electing either of these gentlemen. Either of them would do honor to this eminent bench.

Mr. Leslie Russell, the Republican candidate for attorney-general, is a gentleman with whom we are not personally acquainted, but we hear the best reports of his character and abilities. Of middle age, unexceptionable character, noticeable intellectual strength, sound judgment, fair learning, and considerable aptitude for advocacy, he is one of the most honored and influential of the northern lawyers of our State, and is in every way fit for the office for which he is named. He is at present the county judge of St. Lawrence county. Of Mr. Roswell A. Parmenter, the Democratic candidate, we can speak from a somewhat intimate acquaintance, and a residence in the same town with him for more than twenty years. Mr. Parmenter has for many years been a leader of the Troy bar, engaged in nearly every case of any importance. He is characterized by great vigor, untiring industry, unusual acuteness, ingenuity, and foresight, indomitable courage, large professional learning, and a forcible VOL. 24. No. 17

style of oratory.

His character is above reproach.

He served a term as State senator with general acceptance. For many years he has discharged the duties of the arduous and responsible office of city attorney of Troy, with exemplary fidelity and distinguished ability. We believe that no reproach can be cast upon the elective system of choosing judges and attorney-generals, so long as such nominations as these are put before the people.

Having been out west two weeks and read the western newspapers, we have naturally heard some news and learned something worth while. The following from the Chicago Times is news: "The Supreme Court of the United States is an exceedingly leisurely body. It meets at long intervals, generally with but a bare quorum, and adjourns solemnly, without the transaction of business, until such time as it may please their honors to again meet. The work of the tribunal is from three to five years in arrears, but that fact does not induce the slightest haste in this august court. It does not even move it to ordinary diligence. All this may be quite dignified in their honors, but it's death to the suitors who are so unfortunate as to be compelled to wait the slow movement of the judges. Field has not returned from Europe, and if it weren't that one justice recognizes in another justice the right of slow locomotion, he ought to be regarded as in contempt of court. The Clifford vacancy continues, and the president should fill it at once. The court is sluggish enough. It should not be crippled." In this paragraph there is a misstatement in almost every line. Such misrepresentations need no denial so far as our profession are concerned, but they have some weight with the public. There is no court in the world more heavily weighted with business and more constant and faithful in discharge of its duties than this court. meets at long intervals," but it sits constantly six months when it meets, and much of the rest of the year its judges are engaged in Circuit duty and in writing opinions. That it has had but "a bare quorum" has not been its own fault. Mr. Justice Field is universally recognized as one of the ablest and most indefatigable of the judges, and has earned the right to rest for a few months abroad. The editor of the Times has always been a reckless slanderer of courts and judges, and perhaps has some personal reasons for hating judges, but he should now and then, for variety, if for no other reason, speak temperately and truthfully about them.

"It

We do agree with the Times, however, that "the Clifford vacancy" should be filled at once. By way of variety it should be filled from New England, and not from Ohio. The nomination is due to New England, and not to any western State. The name of Chief Justice Gray has been repeatedly suggested for the post, and has elicited the most favorable comment. Assuming that Senator Edmunds would not accept the post, and believing that he ought not to be taken away from the Senate, we regard Chief Justice Gray as the fittest man for the office

whose name has been suggested or that now occurs to us. He is an all-accomplished lawyer; a judge of vast experience, shining abilities, and ample learning; a man of purity and dignity of character. In this connection, we regret that Mr. Justice Hunt still clings to the office whose duties he has not for years pretended to perform, and which it is conceded he never will again be able to discharge. Out of self-respect, if not out of respect for the public, he ought to resign. We have plainly said so before, and we mean to say it now more plainly, if possible. It seems to us a very improper course for him to pursue, thus to stick to the office until he shall have "earned " his retiring pension.

It

The Chicago Tribune also tells us some news. tells that Chief Justice Folger, of the New York Supreme Court, will not accept the National treasury portfolio, because he now has an office which he can hold fourteen years, at a salary of $12,000 a year, with a retiring pension of the same amount for life! For such big and "enterprising" newspapers the Chicago journals are singularly inaccurate. The Tribune has got several errors in this paragraph. Judge Folger is not "chief justice"; he is chief judge. He is not of the Supreme Court, but of the higher and highest Court of Appeals. We hope he will not accept the treasury portfolio, and if he puts his refusal on the ground that he cannot afford to give up his present post for such a temporary and ill-paid office, he puts it on a very sensible and reasonable ground. Doubtless he wishes, as we all wish, that he could hold his office fourteen years, but he cannot, because his seventieth year will overtake him long before. Doubtless he wishes, as we all wish, that he had a salary of $12,000, but he has not, and on the contrary has only $7,500, with an allowance for expenses, we believe, of $2,000 a year. Doubtless he wishes, as we certainly wish, that he might have a retiring pension of $12,000 a year for life; but the pension is only the amount of his salary during the remainder of the term for which he was elected. So the Tribune is quite wide of the mark. But the Tribune's inaccuracies are more tolerable than the Times' slanders.

Our Court of Appeals, it is said, have settled the long-vexed question of the validity, in this State, of a marriage contracted out of this State by a party divorced in this State and forbidden to marry again during the life of the former husband or wife, and so contracted out of this State with intent to evade the effect of the decree. In Van Voorhis v. Brintnall, such a subsequent marriage is held valid by the Court of Appeals. The New York Daily Register thus states the facts: "The wife of Barker Van Voorhis obtained a judgment of divorce

A daughter was the issue of this marriage. She was born in the State of New York. On February 27, 1880, Barker Van Voorhis died. The executors of his father's will declined to admit the child of Barker Van Voorhis, whose name was Rose, to a share in the trust allotted to her father, questioning her legitimacy. Judge Barnard, upon the trial, in the Second District, in April, 1880, found that Barker Van Voorhis and Ida Schroeder went to New Haven for the purpose of evading the New York law; and held that the second marriage of Barker Van Voorhis was null and void, and that the child was consequently illegitimate and not entitled to any share in the property disposed of by the will of Elias W. Van Voorhis. The General Term affirmed the judgment, but the Court of Appeals have directed a reversal and granted a new trial." This decision of course overrules Marshall v. Marshall, 2 Hun, 238, and is in accord with our own convictions. See 22 Alb. L. Jour. 41; 21 id. 486.

At frequent intervals for a year or two past we have received from the Rochester Astronomical Society missives dated at Warner Observatory, announcing the discovery of new comets. One dated October 8th, announces "still another comet, making the sixth one which has appeared since May 1st." There must be some mistake about the sending of these announcements to us. We are not in the planetary line. We are not star-gazers, and we hope not lunatics. The gentlemanly astronomers of Warner Observatory are vastly polite, but do they suppose we can keep track of all these heavenly developments? How do we know that they are not deceiving us purposely or innocently? What is to prevent their foisting any number of comets on us, either from mischief or from visual duplexity? It seems that prizes are offered for the discovery of new comets, and Mr. Warner has given $1,300 in a year for comet prizes. Of course this sort of thing stimulates the comet market. What assurance have we that these discoveries are not rediscoveries, like Columbus' discovery of the New World? Have the star-routers ever seen Hogarth's pictorial representation of the telescopic observer? If not, let them look it up, and take warning. One other point: If there were really any comets extant, our own observatory at Albany - the Dudley — would be sure to look them up and inform us. In respect of comets we are a protectionist, and believe in home manufactures. Now the Dudley Observatory has not warned us of any late comets, and we do not believe there are any. So, however skillfully the Rochester people may plan it, they cannot come it over us.

NOTES OF CASES.

N State v. Moriarty, Supreme Court of Indiana, June 21, 1881, 12 Rep. 331, it was held that an indictment against defendant for being “found intoxicated in a public street, highway, and sidewalk,” sufficiently charges that the offense was committed in a public place. The court said: "The ruling of