In Bankruptcy-Trial by Jury-Discharge and Certificate.-Facetiousness of the Law. or not at his own pleasure, or as he may creditor was to be considered as holding find it convenient. He has brought his the affirmative of the issue, and ought to creditors here to seek such satisfaction for begin. The granting of a discharge was a their demands as his estate will give, and matter of course, unless objections were having by his own free choice brought affirmatively interposed and affirmatively them here, in this court they have rights sustained by evidence. In such a proas well as he. If he does not choose to ceeding, the objector was the actor, and proceed, they may intervene for their own the bankrupt stood on the defensive. interest to speed the cause by a motion for a decree, or for the appointment of an assignee or for any other matter necessary for the protection of their rights.

FACETIOUSNESS OF THE LAW.
HUSBAND AND WIFE.

My opinion is that a voluntary bankrupt We now come to treat of husband and cannot withdraw his petition at his own wife, and shall inquire, first, how marriage pleasure. In the case of Randall, 5 Law may be made, which will be interesting to Rep. 114, it was decided by the circuit lovers; secondly, how marriages may be court that proceedings in such a case may dissolved, which will be interesting to unbe stayed on the motion of the petitioner on happy couples; and lasty, what are the good cause before a decree of bankruptcy. legal effects of marriage, which will be inIn that case the cause shown was that he teresting to those who have extravagant had settled with all his creditors, and no wives, for whose debts the husbands are person appeared to object. But the reason-liable. ing of the court clearly implies that he can- To make a marriage, three things are not withdraw without showing good reason. required; first, that the parties will marry; In this case he alleges only that he has set-secondly, that they can, and thirdly, that tled with nearly all.

they do; though to us it seems that if they do, it matters little whether they will, and if they will, it is of little consequence

U. S. DISTRICT COURT FOR THE NORTH- whether they can; for if they do, they do;

ERN DISTRICT OF NEW YORK.

Before the Hon. ALFRED CONKLING, D. J.

PRACTICE.

TRIAL BY JURY—DISCHARGE AND CERTIFI

CATE.

On trial by jury to determine the right of a bankrupt to a discharge and certificate, the opposing creditor has the affirmative of the issue, and has consequently the right to begin.

AT the close of an argument, on a motion for a new trial by jury to determine the right of a bankrupt to a discharge, Mr. Myers stated to the court, that considerable doubt and some diversity of opinion and practice prevailed among the commissioners before whom trials of this nature had from time to time been ordered, upon the question, whether it was the right of the objecting creditor, or of the bankrupt, to begin; and he suggested that, as there were yet many trials to be had, an expression of the opinion of the court on this point, would be useful in relieving the commissioners from embarrassment, and in producing uniformity in the practice.

CONKLING, J., said he had never entertained any doubt on the point, but had uniformly been of opinion that the opposing

and if they will they must; because where there is a will there is a way, and therefore they can if they choose; and if they don't it is because they won't, which brings us to the conclusion, that if they do, it is absurd to speculate upon whether they will

or can marry.

It has been laid down very clearly in all the books, that in general, all persons are able to marry unless they are unable, and the find old constitutional maxim, that " a man may not marry his grandmother," ought to be written in letters of gold over every domestic hearth.

There are some legal disabilities to a marriage, such as the slight impediment of being married already; and one or two other obstacles, which are too well known to require dwelling on.

If a father's heart should happen to be particularly flinty a child under age has no remedy, but a stony guardian may be macadamized by the court of chancery; that is to say, marriage to which he objects may be ordered to take place in spite of him. Another incapacity is want of reason in either of the parties; but if want of reason really prevented a marriage from taking

Miscellaneous.

place, there would be an end to half the matches that are entered into.

It is related of Sir John Holt, Ch. J. of the K. B. in the reign of William and Ann, A husband and wife are one in law that "there were some persons in London though there is often any thing but unity who pretended to possess the power of in other matters. A man cannot enter into foretelling future events, and who were a legal agreement with his wife, but they called the French prophets. Holt having often enter into disagreements which upon occasion committed one of these to are thoroughly mutual. If the wife be prison, a disciple of his came to the chief in debt before marriage, the husband in justice's house, and desired to see him. making love to the lady has been actu- On being admitted, he said: 'I come from ally courting the cognovits she may have the Lord, who bade me desire thee to grant entered into; and if the wife is under an a nolle prosequi for John Atkins, his serobligation for which she might be legally vant, whom thou hast thrown into prison.' attached, the husband finds himself the Thou art a false prophet and lying knave,' victim of an unfortunate attachment. A returned the chief justice. If the Lord wife cannot be sued without the husband had sent thee, it would have been to the unless he his dead in law; and law is real-attorney general; for the Lord knoweth ly enough to be the death of any one. A that it is not in my power to grant a nolle husband or a wife cannot be a witness for or prosequi."—Note to Hill's Rep. The Peoagainst one another, though a wife some- ple v. McLeod, p. 405 v. 1. times gives evidence of the bad taste of the husband in selecting her.

A wife cannot execute a deed; which is perhaps, the reason why Shakespeare, who was a first-rate lawyer, made Macbeth "do the deed," which lady Macbeth would have done so much better, had not a deed done by a woman been void to all intents and purposes.

By the old law, a husband might give his wife moderate correction; but it is declared in black and white that he may not beat her black and blue, though the civil law allowed any man on whom a woman had bestowed her hand to bestow his fists upon her at his own discretion. The common people, who are much attached to the common law, still exert the privilege of beating their wives; and a woman in the lower ranks of life, if she falls in love with a man, is liable, after marriage, to be a good deal struck by him.

Such are the chief effects of marriage, from which it is evident, says Brown, that the law regards the fair sex with peculiar favor; but Smith maintains that such politeness on the part of the law is like amiability from a hyena.

DURING a debate in the house of lords, with reference to amendments of the law, Lord Tenterden observed, that "it was fortunate that the subject had been taken up by a gentleman of an enlarged mind, (Sir Robert Peel,) who had not been bred to the law; for those who were, were rendered dull, by habit, to its many defects.

His

PERSONAL IDENTITY.-In the year 1772, one Mall, a barber's apprentice, was tried for robbing a Mrs. Ryan. The witnesses swore positively to the identity of the lad, and the whole court imagined him guilty. He said nothing in his defence but that he was innocent and could prove it. evidences were the books of the court; to which reference being made, it appeared that on the day and hour when the robbery was sworn to have been committed, the lad was on his trial at the bar where he then stood for another robbery, in which he was likewise unfortunate enough to be mistaken for the person who committed it.

A LEARNED real property lawyer who was retained specially to attend the York Assizes, who was remarkable for being tediously prosy, commenced his argument at nisi prius with this proposition "an estate in fee simple is the highest estate known to the law." "I hope, sir," said the chief justice, "you have not taken the trouble to come all the way from London to tell us that."

TO THE PROFESSION.

OUR readers will observe an advertisement, on

our cover, of Messrs. Mason & Tuttle. These gentlemen undertake to insert advertisements in any paper published throughout the U. States, Canada, and the West Indies. The convenience of such an establishment, to Lawyers and Merchants, must be obvious; and from our intimacy with them, we can with confidence assure our friends, that any adver

tisements entrusted to them will be attended to with fidelity and promptness. Their office is No. 128 Nassau street, opposite Clinton Hall.

THE

New York Legal

NEW YORK, APRIL, 1845.

A donatio mortis causa is said to differ from a legacy, inasmuch as the latter is defined to be a gift left, and the former as a gift by the donor in his lifetime. 3 Woodd. Vin. Lect., p. 512, 1, 60; Swinb. p. 1, § 6. Justinian (Inst. tit. 7; De Donationibus) thus defines a donatio mortis causa:-Mor- he thought of, and that his fortune was tis causa donatio est, que propter mortis fil suspicionem cum quis ita donat, ut si quid humanitus ei contigisset, haberet is qui, accepit, sin autem supervixisset, is qui donavit, reciperet; vel si eum donationis pænituisset, aut prior decesserit is, cui donatum sit.

Of Donations Mortis Causa.

causa, the gift must have been made in contemplation of death, and intended to take effect only after the donor's decease. And so the bill treats it, for it alleges that such was the intention of the testatrix. If it appeared, however, from the circumstances of the transaction, as stated, that the donor really intended to make an immediate and irrevocable gift of the bonds, that would destroy the title of the party who claims them as a donatio mortis causa; a proposition which is distinctly laid down in Tate v. Hilbert (supra), where a claim to property on the ground of its having been a donatio mortis causa was held to have failed; because, upon the facts disclosed, it ap

& Cr. 226, is an important one, as many
of the cases were there examined and com-
mented on. The circumstances of that
case were, that in the year 1819, J. N. W.,
being indebted to M. in the sum of £300,
her a
gave bond for securing that sum with
interest. In the year 1828, the said sum
of £300 being still due, together with an
arrear of interest, amounting to the sum
of £123 15s., a second bond was given by
J. N. W. to M. C. for securing the latter
sum with interest thereon. The whole
of the two sums of £300 and £123 15s.
remained due, upon the security of the two
bonds, at the time of the death of M. C.
On the 25th of May, 1830, only five days
before her death, M. C. signed an endorse-peared to be a transaction of present gift.
ment not under seal upon the bond of 1819,
which purported to be an assignment of
the bond without consideration to a person
to whom the bond was at the same time
delivered. The bond of 1828 was usually
kept with the bond of 1819. At the time
at which the endorsement was signed, the
two bonds were fastened together with a
pin. Immediately after the endorsement
had been signed, M. C. delivered, or caused
to be delivered, both the bonds to E. E.,
the plaintiff in the suit. The bonds re-
mained in the hands of the plaintiff until
the filing of the bill. M. C. died on the
30th of May, 1830, having in 1829 made
her will in which she did not mention the
bonds or dispose of the residue of her pro-
perty, but by which she appointed the de-
fendant, R. Jones, her executor, who fully
proved the will. After M. C.'s death, the
defendant, who had been aware in her life-
time of the existence of the bonds, suppo-
sing that they had been lost, prevailed on
J. N. W., the obligor, to execute a new
bond for the amount due upon the two old
bonds, and, at the same time, gave the
obligor a bond of indemnity against any
claim which might be made under the old
bonds. The bill was filed to have it de-
clared that the defendant was a trustee of
the two bonds for the plaintiff, and for an
account of the principal and interest. The
lord chancellor in delivering judgment said,
"It was argued at the bar that the bonds
were delivered either by way of donatio
mortis causa, or as a gift inter vivos; one
question being, whether on the face of the
record there was such an allegation as en-
titled the plaintiff to raise the latter point.
Now, in order to be a good donatio mortis

Several cases have been cited for the pur-
pose of controverting that proposition, and
shewing that words of gift might operate
by way of donatio mortis causa. Of these
the principal were Gardner v. Parker, 3
Madd. 184, and Lawson v. Lawson, P. Will.
441; which cases, however, so far from
disproving the proposition, actually as-
sumed it throughout
The rule,
therefore, remains unaffected by any de-
cisions on the other side; and we have
now to look at this gift to see whether the
circumstances which attended it can be
considered as importing a donatio mortis
causa. Now, the transaction certainly can-
not prevail as a donatio mortis causa. In
the cases referred to, there was no written
instrument or memorandum-nothing but
a mere general expression of gift,-and the
court founded its conclusion upon the cir-
cumstances with which the gift was at-
tended. In the present case, however, the
transaction is in writing, and, therefore, in
looking for the intention, we are confined
to the language in which that intention is
expressed. It may be observed, that the
very fact of the transaction being in wri-
ting is a strong circumstance against the
presumption of the gift being intended to
operate as a donatio mortis causa. Here is
an instrument purporting to be a regular
assignment, exactly in the same form as
where the purpose is absolutely and at
once to pass the whole interest in the sub-
ject matter. A party making a donatio
mortis causa does not part with the whole
interest, save only in a certain event; and
it is of the essence of such a gift that it
shall not otherwise take effect. A donatio
mortis causa leaves the whole title in the

Practical Points.-Separate Estate. Deed-Construction. Production of Lessor's Title. donor, unless the event occurs which is to in her, the law will say that such estate as divest him. Here, however, there is an she may have, shall be bound by her own actual assignment, by which the donor, act. Per Lord Langdale, M. R., 4 Bea., Mrs. C., transfers all her right, title, and 323. But where she enters into no bond, interest, in the subject of her niece; and contract, covenant, or obligation, and in no that is really the whole evidence of the way contracts to do any act on her part, transaction; for the testimony of several where the instrument which she executes persons who were present proves that it does not purport to bind or to pass anything was intended as a gift. Independently of all whatever that belongs to her, and where it the other circumstances, therefore, and in- must consequently be left to mere inference, dependently of the grounds taken by the whether she intended to affect her estate in vice chancellor in his judgment, I consider any manner or way whatever, the case is the language of the assignment sufficient entirely different, either from the case, to prevent this transaction from being con- where she executes a bond, promissory sidered as a good donatio mortis causa. note or other instrument, or where she There is not very precise evidence as to enters into a covenant or obligation, by the time when these bonds got into the which she, being a married woman, can be possession of the plaintiff. There is also a considered as binding her separate property. defect of evidence to show that at the time Where, therefore, a married woman posat which the transaction took place, Mrs. sessing separate estate, joined her husband C. was in such a state of illness, or expect-in an annuity deed, purporting to secure ation of death, as would warrant the sup- the annuity on her separate estate, and the position that the gift was made in contem- husband alone covenanted, and the wife enplation of that event. These considerations, tered into no obligation, and there appeared however, do not appear to be very material, no agreement on her part to charge her because I consider the language of the separate estate. Lord Langdale held that assignment itself to exclude the possibility her separate estate was not bound by the of treating this as a donatio mortis causa. deed. Tullett v. Armstrong, 4 Bea. 319.

PRACTICAL POINTS

SEPARATE ESTATE.

ASSIGNMENT FOR THE BENEFIT OF
CREDITORS.

DEED CONSTRUCTION.

WHERE a woman has property settled to By a deed executed by A. he conveyed her separate use, she may bind that prop- his creditors. The operative part of the and assigned his property for the benefit of erty without distinctly stating her intention deed was in these words: "All and sundry so to do, and this by bond, bill, promissory seperiorities, lands and heritages, debts herinote, or other obligation. Coppin v. Gray, table and moveable, and whole goods, gear, 1 Y. & C. N. C., 205; Bulpin v. Clark, 17 Ves., 365; Field v. Sowle, 4 Russ., 112; ral my whole means and estate, heritable sums of money, and effects; and in geneMurray v. Barlee, 4 Sim., 82 and 3 Myl. & C., 209; Owens v. Dickenson, 1 Cr. & Ph.,mination, or wherever situated, presently and moveable, of whatever nature or deno48. Story on Eq. And where separate per- belonging to me." The House of Lords sonal property is left to a married woman by will, and no trustees are interposed, a court (on appeal) decided that these words did of equity will not order such property in a time filled by the grantor. It was also denot pass the profits of a public office at that suit of the wife by her next friend, to be paid cided in the same case that the profits of a to the husband, but will order it to be carried to the wife's separate account, with lib-public office cannot be assigned for the beerty to her to appoint it. See Owen v. Lys, F. 295. nefit of creditors. Hill v. Paul, 8 Clark & 1 Tam. Where also a married woman, having separate estate, but not knowing perfectly the nature of her interest, executes an instrument by which she plainly shews an intention to bind the interest which belongs to her, then, though she may make a mistake as to the extent of the estate vested

VENDOR AND PURCHASER. PRODUCTION OF LESSOR'S TITLE. There was formerly considerable doubt whether on an assignment of a lease, the assignor was bound to produce the original