company the benefits to be derived from the act. For example, a primary requisite on the part of those seeking the aid of the act is their willingness and ability to surrender all their property for the benefit of their creditors, and it would be obviously in possible for a person non compos mentis to make a valid surrender. And it would be equally impossible for his committee in this case to make such a surrender, because the title under the laws of New York remains in the lunatic, the committee being merely a baliff to take charge of the lunatic's property and administer it subject to the direction of the court appointing him (Matter of Application of Otis, The court said: 101 N. Y. 580; Pharis v. Gere, 110 N. Y. 336; Matter of Strasburger, 132 N. Y., 128; Kent v. West, The action was brought to restrain the city of 33 App. Div. 112). The lunatic, moreover, evidently Buffalo and its board of fire commissioners from could not perform the duties devolved upon him by tearing down and interfering with certain bill or section 7 of the act, nor be subjected to ne exeat or advertising sign boards erected and about to be contempt proceedings, and the committee obviously erected by the plaintiff in the city of Buffalo. The could not properly be substituted for him in any of case has been in this court before on appeal from an these or other matters which would demand the per-order denying an injunction pending the action. sonal attention or responsibility of a bankrupt. We then held the injunction should be granted, and the defendants restrained, until the action was tried (62 App. Div. 497; 71 N. Y. Supp. 155). The trial has now been had, resulting in a judgment dismissing the complaint and dissolving the injunction, and it is from that judgment this appeal is taken. In the English Bankruptcy Acts special provisions have been made with respect to proceedings involving the estates of lunatics, yet the administration of the law has been beset with difficulties and doubts still exist with respect to the validity of adjudications against lunatics (Williams's Bankruptcy Prac. [7th ed.] pp. 5, 61, 350, 370, 440, 457, 458). In In re Farn- Upon the former appeal we did not examine or ham (a lunatic) (Ch. Div., 1895, v. 2, 799), decided pass upon the questions whether the common counin 1895, it was assumed, for the purpose of disposing cil of the city of Buffalo had power to adopt the of a property question, that the lunatic had been ordinance involved, or whether the structures comvalidly adjudicated a bankrupt. That was an in-plained of were included within the prohibition of voluntary case, in which an adjudication was made the ordinance. We left those matters to be deterafter the lunacy was found by inquisition. In con- mined in the trial court, when the case should come sidering the matter, the court said that the trustee in on to be considered there. We considered only the bankruptcy took the estate subject to the powers of question whether, upon the record then before the the judge in lunacy under the Lunacy Act of 1890. court, a case was made which justified the fire comThat act conferred upon the judge similar powers missioners in destroying the structures as common with respect to the lunatic's estate to those con- nuisances, under the provisions of the ordinance ferred by statute upon the Supreme Court of this (page 499). We concluded that during the pendState, which appointed this committee, and, by ency of the action the defendant should be restrained analogy, as the property here remained in the pos- from destroying the structures. Upon the trial a session of the Supreme Court of the State and the large volume of evidence was taken, and the court committe was only its agent, not the agent of the decided that the structures were common nuisances, lunatic, no proper action could, in any event, be taken that the city had power to pass the ordinance; that without that court's direction, which would defeat it was a reasonable police regulation in the interest this committee's action. I do not think, however, of the general welfare and good government of the that the decision need rest upon the absence of such city and its inhabitants, and its enforcement was direction. required to abate and prevent such nuisances. We do not deem it necessary to enter into an extended review of the evidence or consideration of the law, in view of the decision of this court and the Court of Appeals in the case of the City of Rochester v. West (29 App. Div. 125; 51 N. Y. Supp. 482; affirmed, 164 N. Y. 510; 58 N. E. 673; 53 L. R. A. 548; 79 Am. St. Rep. 659). It was there held that the legislature had power to authorize the city to pass a similar ordinance; that the charter authorized the adoption of the ordinance, and it should be enforced. In that case the charter expressly authorized the passage of such an ordinance. We think It must be assumed that congress was familiar with the difficulties that would be encountered by the courts in attempting to administer in bankruptcy the affairs of lunatics, and did not intend to include cases other than those mentioned in section 8, where provisions is made for the continuance and settlement of estates of which the courts had acquired jurisdiction before the insanity occurred. I conclude that the court did not obtain jurisdiction in this matter and that the adjudication must be set aside and the motion for the restraining order denied.-N. Y. Law Journal. like authority, though not in express terms, was the agreement to reconvey the land on payment of given to the city of Buffalo by its charter. In the the money lent, with the interest stipulated for, is Rochester-West case the court said that the obvious plainly an agreement for the sale of land, within purpose of the legislature was to allow the city of Pub. St., chap. 78, sec. I, cl. 4, on which, by the Rochester to provide for the welfare and safety of terms of that act, no action shall be brought." the community in the municipality, and that the ordi- The agreement to keep down the interest on the nance there in question was within such purpose. In first mortgage cannot be sued on as a separate part this case the charter of Buffalo expressly authorized of a divisible contract (Irvine v. Stone, 6 Cush. 508; it to enact such ordinances as should be deemed McMullen v. Riley, 6 Gray, 500; Gould v. Mansfield, expedient for the good government of the city and 103 Mass. 408, 4 Am. Rep. 573; Dowling v. McKenthe promotion of peace and good order. These ex-ney, 124 Mass. 478). It does not come within the pressions are quite similar to the welfare and safety of the community. The court very properly held that authority was given the city to adopt the ordinance in question by the provision of the charter. These structures in question were covered by the language of the ordinance, fairly construed. The finding that for the reasons stated the structures were common nuisances was supported by the evidence. We regard the Rochester-West case as decisive of the questions involved in this case, and as requiring an affirmance of this judgment. Statute of Frauds Sale of Lands - Oral Agreement for Reconveyance Part Performance. In Hurley v. Donovan, decided by the Supreme Judicial Court of Massachusetts in September, 1902 (64 N. E. 685), it was held that an oral agreement between a grantor and grantee of land, whereby the latter is to reconvey to the former upon payment by him of money lent, with interest, is an agreement for sale of land, within Pub. St., chap. 78, sec. 1, cl. 4 (Mass.), providing that no action shall be brought upon an oral agreement for sale of land. It was further held that an oral contract to reconvey land upon payment of money lent, and to keep down the interest on a prior mortgage until such reconveyance is made, is not separable so as to allow an action for breach of the agreement to keep down interest, the other part of the contract being within the Statute of Frauds (Pub. St., chap. 78, sec. 1, cl. 4). The rule was laid down that where a contract is partly within the Statute of Frauds and partly not, and the part within the statute is voluntarily performed, an action may be maintained on the part not within the statute, though both parts were originally inseparable. It was decided that although upon proof that an absolute deed was executed pursuant to an oral agreement as security for a loan, and upon repayment of the loan, equity will compel a reconveyance, the grantor in an absolute deed cannot by an oral agreement reserve such title in the land conveyed as will entitle him to maintain an action of slander of title against the grantee for saying that he, the grantor, has no title to the property, since such an action would be an indirect enforcement of a contract which the Statute of Frauds declares shall not be enforced. The court said, in part: So far as the courts in contract are concerned, cases in which such a recovery has been allowed. Where the plaintiff has done work in consideration of the defendant's promising to do two things, the promise to do one being valid, the promise to do the other being within the Statute of Frauds, it has been held that the plaintiff can, if he chooses, forego all rights by reason of having been promised the two things, and enforce the performance of the one for which the promise is valid, as in Rand v. Mather (11 Cush. 1; 59 Am. Dec. 131). There are other cases where there is a contract containing "several stipulations having reference to distinct objects and imposing distinct duties, some of which can and some cannot be enforced," in which it has been held that one of the separate contracts not within the statute can be enforced, although some are within the statute and cannot be enforced, as in Friend v. Pettingill (116 Mass. 515). But in the case at bar the promise is part of one inseparable contract, namely, the contract to reconvey the land on being paid the money lent, and until then to keep down the interest on the prior incumbrance. It is like an agreement to buy a cargo of coal, and pay for its transportation from Philadelphia to Boston, which was under consideration in Irvine v. Stone (6 Cush. 508); and like the agreement to sell flats and fill them to a specified grade, and to sell land and pay a sewer assessment, in question in Page v. Monks (5 Gray, 492), and in Carr v. Dooley (119 Mass. 294). In such cases, so long as the part of the contract within the Statute of Frauds is unexecuted, no part of the contract can be enforced,, as was held in Irvine v. Stone (6 Cush. 508). It has been held that when the parties have voluntarily executed the part which is within the prohibition of the statute the promise to do something not within the statute, made in consideration of that which is within the statute, can be enforced (Page v. Monks, 5 Gray, 492; Carr v. Dooley, 119 Mass. 294; and see Wetherbee v. Potter, 99 Mass. 354). Had the defendant in the case at bar voluntarily reconveyed the land, but omitted to pay the interest on the first mortgage, the plaintiff could have recovered for breach of that agreement if it is conceivable that any damage could have been suffered from the breach of that agreement as a separate contract under those circumstances. But in these cases, so long as the defendant does not voluntarily perform the part of the agreement, which is within the statute, no action can be brought on the promise, which is not within the statute, and which is an inseparable part of one con New Books and New Editions. By Henry Hardwicke. Albany, N. Y.: Banks & Co., 1902. tract, as was decided in Irvine v. Stone (6 Cush. 508), and McMullen v. Riley (6 Gray, 500), where no part had been performed; and, as was laid down in Page v. Monks (5 Gray, 492, 496), and Wetherbee The Trial Lawyer's Assistant in Criminal Cases. v. Potter (99 Mass. 354, 361), where the part which could not be enforced had been performed. In the case at bar it is plain that the plaintiff cannot stand any better by suing twice, once to recover the land. and a second time to recover the damages. Whether he can sue twice or not we do not decide; but, if he can sue twice, he cannot stand any better in the second action than if he had included his claim for damages in his first suit. The compulsory conveyance made by the defendant in obedience to a decree of the Superior Court in the suit in equity does not bring the case within Page v. Monks and Wetherbee v. Potter, and put the plaintiff in the same position as he would have been in had the defendant voluntarily performed the agreement so far as it was within the Statute of Frauds. It remains to dispose of the count in tort. Assuming, in favor of the plaintiff, that this count contains the necessary allegations of a count for slander of title, we are of opinion that here also the Statute of Frauds is a defense. The ground on which it is contended that the plaintiff has a title is that, if the defendant had refused to perform the agreement after the plaintiff had conveyed the land to him by an absolute deed, and had set up that that agreement was not enforceable, equity would have compelled the defendant to reconvey the land on the plaintiff's paying the money for which the land was to be security. Whether in such a case equity enforces the oral agreement or gives a remedy outside that agree ment is not material. In such a case equity compels the defendant to reconvey the land on payment of the money due to the plaintiff, to prevent the commission of a fraud by retaining property, obtained under an oral agreement within the statute, without paying for it (Glass v. Hulbert, 102 Mass. 34, 35, 36; 3 Am. Rep. 418; Campbell v. Dearborn, 109 Mass. 130; 12 Am. Rep. 671; Maddison v. Alderson, 8 App. Cas. 467, 476). 66 In this compact little work, the well known author of "The Art of Winning Cases," "Oratory and Orators," etc., has given to the profession another book of great practical value; indeed, this is the great feature of all of Mr. Hardwicke's works. His long experience as a trial lawyer in both civil and criminal cases, has enabled him, when writing for the profession, to choose his subjects and treat them in the most advantageous way. Not only has he in this, his latest work, stated with admirable brevity the substantive law, but he has in many instances stated the principles of pleading, practice and evidence in difficult cases. The principles of the law of evidence; the most approved methods of preparing criminal cases; the suggestions as to topics for discussion, both for the prosecution and defense, and much other valuable information for the trial lawyer, make this book a most useful addition to the library of every ambitious practitioner in the country. In his admirable introduction, Mr. Hardwicke has given much excellent advice to the trial lawyer as to the conduct of his cases in court. The matter is arranged in alphabetical order; hence, any subject may be easily found. It can be said with truth, that there is hardly a superfluous line in the book. The following interesting sketch of Mr. Hardwicke appeared in the "Successful American" for September last: Henry Hardwicke, whose excellent training and long experience while associated with leading law firms, has made him an efficient and capable advocate, while his firm adherence to the dictates of Although the plaintiff in such a case has a right professional ethics has gained him universal rein equity to get back his quarry, he has no title for the slander of which he can maintain an action for spect in the metropolis, was born in Newport, Virdamages, if the defendant maliciously says that he ginia, on September 30, 1861. His father is Dr. has not a title. The only title which the plaintiff James K. Hardwicke, then an eminent physician has in that case is under an oral agreement, and the of that city, and his mother, now deceased, was statute provides that on that oral agreement no Martha J. Hardwicke. The son's education was action shall be brought." It is true that it has been chiefly acquired in the common and private schools decided that equity can prevent the grantee from of Virginia and North Carolina, but all of his keeping the property without paying for it, to pre- studies from early boyhood were undertaken with vent the perpetration of fraud; but what the plaintiff the idea of preparing himself for the legal pronow asks is that we should go one step farther and fession, which he chose as his walk in life when cast the defendant in damages, because he mali- he was but eleven years old, for even at that early ciously denied that the plaintiff had a title under the age Mr. Hardwicke had displayed marked abilities oral agreement. We are of opinion that we cannot as a student and a determined purpose seldom take that step; that would be to enforce indirectly found in one of his years. the oral agreement, and what the statute directly forbids cannot be indirectly enforced.-N. Y. Law Journal. He was but fourteen years of age when he was made deputy register of deeds in Madison county, North Carolina, whither he had removed, and was but eighteen when the position of deputy clerk of the Superior Court of the State came to him. At the age of nineteen he was made special deputy collector of internal revenue. At the age of twenty-four he received a flattering vote for attorney-general of North Carolina, and a few years later was appointed supervisor of the census for the western district of North Carolina ar. official record the equal of which is probably not to be found in the archives of any other State in the country. Fitted not only by his deep study and thorough insight into the intricacies of the profession, but the various official positions which he had held, Mr. Hardwicke was licensed to practice law by the Supreme Court of North Carolina in 1883, but he soon removed to New York city, where he acquired an extensive practice, and was, on the first day of January, 1897, appointed assistant district attorney of New York county, in which capacity he served for one year under Judge W. M. K. Olcott, and tried some of the most important cases that came under the jurisdiction of the office. Among the most notable of these was the trial of the American Cigarette Trust, one of the most important criminal cases ever before courts. of attorney-general of the United States by United States Senator Pritchard, of North Carolina, General James Grant Wilson, and many members of the New York bar. Mr. Hardwicke has also achieved distinction in the field of literature as author of "The Art of Winning Cases, or Modern Advocacy," "The Art of Living Long and Happily," "The History of Oratory and Orators," "The Art of Rising in the World," and "The Art of Getting Rich," all of which attracted widespread attention, had a very extensive circulation, and are still enjoying a steady sale, and received the hearty commendation of the press of the country. Mr. Hardwicke is at present connected with the law firm of Messrs. Campbell & Hance, of 220 Broadway, New York He was married in 1889 to Miss A. L. C. Cornell, of Somerville, New Jersey. They have two children. Mason on Highways. By Herbert Delavan Mason. This is a new Manual of Highway Law, which, in view of the rapid spread of public interest in the subject of road improvement, is very timely. The so-called good roads agitation has rendered In this case, Hon. Joseph H. Choate, Hon. necessary the dissemination of accurate, authoriDaniel G. Rollins, ex-district attorney of New tative information with reference to highways and York; Mr. W. W. Fuller, attorney for the Ameri- the methods provided by the legislature for their can Tobacco Company, and Messrs. Ondin and systematic and permanent improvement. Lawyers, Oakley appeared for the defense. The jury dis- boards of supervisors, village trustees, town boards, agreed, and a mistrial was the result. Ten of the commissioners and overseers of highways, owners jurors were for conviction and two for acquittal. of automobiles and bicyclists, are vitally interested Mr. Hardwicke also appeared for James E. Bare- in these statutory provisions with reference to more, who had been pronounced insane by some highways. The book under review fully meets of the most eminent alienists in this country. After this need. It is up to date in all respects, conmany contests he won for himself a national repu- taining, among other important highway matters, tation by having Baremore released from the insane asylum where he was confined, although the experts in the case had sworn that he was incurable. the Highway Law of the State of New York and all constitutional and general statutory provisions relating to highways, highway officers, their powers and duties, sidepath and county roads, including the so-called Good Roads Law of 1898, all as amended to the commencement of the legislative session of 1903, together with annotations and forms and numerous cross-references to independent highway statutes, contained in an appendix. Among other subjects fully treated are county supervision of highways, grade crossings, duties and powers of officials, highway assessments, lay Mr. Hardwicke began his political career at an early age; and, when but seventeen, made a speech putting George B. Everett in nomination for presidential elector for the State-at-large in the North Carolina Republican convention. At twenty-four he received the vote of the delegates from about fifty counties in the Republican convention for attorney-general of the State. He is at present the president of the Useful Knowledge Publishing ing out of highways, methods of securing State Co., and is a member of the Bar Association of the city of New York, the New York Historical Society, the New York Genealogical and Biographical Societies, the American Authors' Guild and the Republican Club of the city of New York. Mr. Hardwicke was recommended for the position aid under the two systems provided by the legislature, liability for defective highways, trees and fences, the new law of the road, automobile registration, bridges and ferries, etc., etc. Lawyers will be especially interested in the full table of cases, and the carefully prepared forms will be found invaluable to them, as well as to all officials sections of the code, and showing at a glance all charged with the administration of the highway the sections where the particular subject is con laws. The author has carefully looked up the derivation of each section of the highway law and found many sources of derivation of same not noted by other authors, a matter of great importance to the practitioner in determining the weight of older decisions. The many errors of other writers have been avoided by careful reference to the Session Laws. The index has been prepared with especial care, and will be found many times larger and more complete than any other. The forms, too, have been brought thoroughly up to date, and include many not attempted by other writers. Besides the very exhaustive index, will be found an elaborate table of cross-references, a feature which must be very acceptable to commissioners as well as lawyers who have heretofore had no key to the very unsystematically arranged and confusing highway law; also particularly useful in giving proper references to isolated, general and special statutes supplementary to and sometimes controlling of or contrary to the highway laws. We cheerfully commend "Mason on Highways" to all who are interested in the subject, of which it so fully and carefully treats. Bliss's Annotated Code of Civil Procedure. Edited tained or referred to, and a brief reference to all Index Digest of the New York Supreme Court This work has been prepared on the same general plan as that followed in Danforth & Wickes' New York Court of Appeals Digest, which has met with the general approval of the profession. It contains all decisions of the General Term and the Appellate Division, from 1869 to 1902, reported in Lansing, Thompson & Cook, Appellate Division, I to 64, inclusive; New York State Reporter, I to 105, inclusive; New York Supplement, I to 71, inclusive, and Silvernail, five volumes, with table of statutes cited and table of cases affirmed or reversed. More than forty thousand cases have been digested, the points therein decided being stated as briefly as possible, having in view the importance of compressing the voluminous matter into small and handy volumes. All cases on the same point, whether few or many, have been digested, thus enabling the lawyer to make selections fitting the facts of the particular case as closely as possible; cases reversed as well as those affirmed are digested, and the disposition of the cases by the Court of Appeals can be ascertained by a glance at the table of cases. It is a very useful book for every lawyer, printed in fine, clear type, on best quality of paper and bound in law sheep. Bliss's Code has always been the standard code; it has stood the test of twenty-five years' use by the bench and bar and has been generally given the precedence for reliability, accuracy and completeness. In this new fifth edition, the general plan and scope of the work has been carefully maintained. The sections of the code are brought down, as amended, to 1903, preceded with the year of amendment, and at the end of each section is a specific reference to the session laws and chapter. The annotations of the last edition have been revised and stricken out where superseded by positive changes in the law, and have been preserved and inserted where of possible information and value. The decisions construing the different sections have been added down to and including those published to May 1, 1902, and in This is a book certain to find many readers at many cases, those of value to the first day of July, this particular time, when the subject treated is 1902 and in some cases even later. The notes are coming in for a large share of public attention. the latest. General laws are cited or referred to Mr. Bolen discusses briefly every phase and printhroughout the work, and in such important stat- ciple of the "trust question, as well as the tariff utes as the Transfer Tax Law are inserted at and the railroad problem. Besides presenting new length, with exhaustive annotations. The appendix ideas, it summarizes practically all that has been contains an entirely new feature, viz.: a combined written on these three important subjects. The table and special index arranged alphabetically chapter on municipal monopolies is similarly comaccording to the subject matter of the different prehensive. Though the style is simple and con The Plain Facts as to the Trusts and the Tariff. By George L. Bolen. New York: The Macmillan Co., 1902. |