* *

the sum of money mentioned in the resolution of the board of supervisors was "compensation," within the meaning of the Constitution, to inquire whether the sum fixed for attending at the drawing of jurors could have been diminished during the plaintiff's term of office. If it could have been reduced or abolished altogether, then it is not that compensation which is continued by the Constitution during the term for which the plaintiff was elected; for, as we have seen, that refers to the compensation to be established by law for judicial services, and which cannot be diminished during the official term. The statute conferred power upon the board of supervisors to "allow to the jus tices, judges and officers of the several courts, for the services required of them, such compensation for their services as the board shall deem reasonable and proper." The whole matter of compensation was left to the discretion of the board, and when it passed the resolution awarding the plaintiff $6,000 per year this did not bind any future board and was not permanent. The next board could have reduced it to a nominal sum, and during the last year of the plaintiff's actual service the board might have abolished the compensation entirely as to him, as he was no longer, within the terms of the statute, qualified to perform the duties for which the compensation was to be paid. The Constitution, in providing that the compensation of a judge, whose term was abridged by reason of age, should be continued, referred to the sum of money that the retiring judge was in receipt of when he became disqualified, as his regular stated salary as one of the justices of the Supreme Court. It did not refer to or include what might be termed "extra compensation," which a particular judge was in receipt of when he became seventy years of age, from a county, for special services to be performed in and for such county and not elsewhere. It cannot be supposed that the people when the amendment of 1880 was before them for adoption, intended that it should be so construed as to give one judge the statutory salary and allowance for expenses only, and to another judge nearly twice that amount. It was never intended that the amendment providing for the continuation of the compensation of a retiring judge should carry with it compensation by a locality for local services which he could not perform after his retirement, and which were not necessarily judicial in their nature and character. We think that the sum mentioned in the resolution of the board of supervisors for attending at the drawing of jurors in Kings county was not the compensation of a justice of the Supreme Court established by law, and which could not have been diminished during plaintiff's official term, but, on the contrary, it was special compensation by a locality for special services, and which was subject to change by the body that established it, and to be wholly abolished at the end of the plaintiff's actual term of service. Nov. 29, 1892. Gilbert v. Board of Supervisors of Kings County. Opinion by O'Brien, J. 18 N. Y. Supp. 892, reversed.

MARRIAGE LOAN OF WIFE'S MONEY- COMPOUND INTERESTRES ADJUDICATA.-(1) Testator, received $5,000 from his wife for the purpose of including it in a mortgage loan for $50,000 to be made by him. The loan was made, and the mortgagors subsequently paid testator $17,000 on the principal, and also the interest on the loan annually during his life. The wife, without a demand for interest, brought an action against testator and the mortgagors to recover $10,000 and interest, which action testator defended, and a judgment was rendered in her favor for $5,000, with simple interest. It did not appear under testator's agency what he was to do with the interest derived from the mortgage, nor did it appear that testator used it in business, or made any profit out of it. On testator's death, his executors, apparently in good faith, ap

pealed from the judgment, and received the interest on the mortgage pending the appeal. Held, that the wife was not entitled to receive interest on the interest paid to her husband and his executors. (2) The judgment in favor of the wife for $5,000, with simple interest, was a bar to a subsequent action by her to recover interest on the interest paid to her husband and his executors. Oct. 4, 1892. Price v. Holman. Opinion by Earl, C. J. 2 N. Y. Supp. 184, reversed.

MORTGAGE-GROWING CROPS.-Where the owner of a mortgaged farm sells the growing crop, and then before it is harvested, delivers possession of the land to the mortgagee, the mortgage debt not being due, the mortgagee thereby acquires no title to the crop as against the purchaser. I do not think that the instru ment under which the plaintiff entered into the possession of this farm had the effect of making that possession that of the mortgagee, as that is technically understood. Its very terms seem to preclude that idea, for the possession which the plaintiff was authorized to take was qualified and limited to the exercise and enjoyment of certain prescribed acts, namely, to rent it and to apply the net income upon the indebtedness. The mortgage had not become due, inasmuch as there had been no demand for the payment of any indebtedness accrued and to be secured by it; or, at any rate, such a demand as the nature of this mortgage required. But I do not think it very important to our decision whether we hold that the possession was technically that of mortgagee, or one authorized by and assumed under the writing referred to. Although, if that question should be deemed essential, I should regard the possession taken by plaintiff, through this instrument of April, 1879, as not equivalent to a possession by surrender of the land from the mortgagor. In this State it must be regarded as settled by the cases that the title of the mortgagor to the land is not changed by the mortgage. It remains as before, while the mortgagee has in the mortgage a security for the mortgagor's debt, which is impressed upon the lands described, and incumbers them with the burden of the debt. It must also be regarded as settled that, even if the mortgagee goes into possession of the premises by a surrender of them from the mortgagor, the legal title or fee still remains in the mortgagor, and what the mortgagee thereby acquires is the possession of the pledged property. He holds it then for the purpose of paying off the debt with which it was incumbered, but takes no estate in the land. Kortright v. Cady, 21 N. Y. 343; Trimm v. Marsh, 54 id. 599. In Trimm v. Marsh the question of the effect upon the title, where the mortgagee acquires the possession of the land, was quite fully discussed, upon theory and in the light of earlier cases, and the decision should be considered as settling, and, as I think, quite in accordance with the reason of the thing, that a mortgagee who merely is let into the possession of the mortgaged land does not acquire the legal title. If we assume that the plaintiff was in possession of the land as by an actual surrender from the mortgagor, his rights in its use were subjeet to the previous disposition made of the growing crop of grain by the owner of the land. He had planted the crop and it was perfectly competent for him to dispose of it while he held the title to the land. Though in a sense a growing crop of grain is a part of the real estate, it nevertheless possesses the characteristics of a chattel, and is salable and transferable as other personal property is, and may be taken upon execution, and sold in discharge of a judgment debt. Whipple v. Foot, 2 Johns. 422; Stall v. Wilbur, 77 N. Y. 158. The relation which growing crops bear to the land has been frequently the subject of discussion in the courts, and is in some respects a peculiar one. They pass to the grantee in a conveyance of the land, as appertaining thereto. Wintermute v. Light, 46 Barb. 283; Stall v

the time of the sale which is set forth in the findings, there would have been no reason for refusing to purchase upon grounds relating to the vendor's capacity to convey a good title. Nov. 29, 1892. Jacobs v. Morrison. Opinion by Gray, J. 19 N. Y. Supp. 1021, affirmed.

WATER AND WATER-COURSE-RIPARIAN RIGHTSGRANT OF LAND UNDER WATER.-(1) The Hudson River railroad cannot, by virtue merely of the construction of its railroad under charter along the east side of the Hudson river, on land partly below high water, conveyed to it for that purpose by owners of the adjacent uplands, be regarded as an adjacent owner, within the Laws of 1850, chapter 283, allowing a grant of land under water only to such an owner, nor can it be allowed to defeat a grant to a private person under said chapter of land next under the water to its own, and which does not interfere with its operation, by extending its tracks thereover, pending application for the grant, under supposed authority conferred by charter to alter its location at any time, and particularly can this not be allowed, as the mere enlargement of its location as proposed is not an alteration within meaning of the charter. 16 N. Y. Supp. 674, affirmed; Rumsey v. Railroad Co., 114 N. Y. 423. (2) The conveyance of land for a railroad right of way, partly above and partly below high water, along the bank of a river, by one owning the adjacent uplands, does not destroy the grantor's character as riparian owner, so that a patent may not issue to him under the Laws of 1850, chapter 283, as to the owner of adjacent land, for the land lying next under the water. Oct. 4, 1892. New York Cent. & H. R. R. Co. v. Aldridge. Opinion by Peckham, J.

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EXECUTION-AP

WILL-TESTAMENTARY POWERS POINTMENT TO "LAWFUL ISSUE."-(1) A power conferred by will on a designated person to appoint certain land to all or any or either of testator's sisters, "or to all or any or either of the lawful issue of my said sisters," enables the donee of the power to execute it by appointing grandchildren of the sisters, though their parents, the children of the sisters, are living, as the word "issue" means all descendants, unless the context or other provisions of the instrument in which it is used, and such circumstances as may legitimately bear in that direction, show it to have been used in the more restricted sense of "heirs of the body or "children." 10 N. Y. Supp. 183, affirmed. (2) The will further provided that on default in the execution of the power, the property should vest in the sisters in equal shares, and on the death of either during the life-time of the donee of the power leaving issue," such "issue" should take the same share which the parent would have taken if she had survived. Held, that the fact that testator used the word "issue" in a restricted sense in this devise, as meaning either "heirs of the body" or "children," does not show that he used the term in a similar restricted sense in the grant of power vesting a discretion in the donee as to whom appointment should be made, limited only to the blood of the testator. (3) The fact that the term "lawful issue," as used in other devises not connected with the one in question, showed that testator intended that in such devises children should not take to the exclusion of or concurrently with their parents, furnishes no support to the suggestion that he intended its use in the grant of power in a similar sense, or otherwise than the apparent sense in which it was then used, limiting the donee of the power only to the descendants of the testator in executing it. (4) The fact that the donee of the power was testator's illegitimate daughter; that she enjoyed his esteem and confidence, and that he was displeased by her ill-treatment at the hands of his

sisters, and their children, show that it was testator's intention to place her in such position in relation to the property in question as to secure her respectful treatment by those who might expect or hope, in the exercise of her discretion, to become appointees of the power with which she was vested, rendering it probable that the term "lawful issue' was used in its unrestricted sense as embracing any descendants of the sisters. (5) In the grant of power to appoint testator's sisters, "or" to all or any or either of their lawful issue, the word "or" following the names of the sisters is apparently used in a discretionary rather than a substitutional sense, and the rule that a devise to a person "or" his children enables the children to take only in a substitutional sense on the death of the parent is not necessarily applicable to a discretionary power of appointment created by will. Second Divis iou, Oct. 1, 1892. Drake v. Drake. Opinion by Bradley, J. Follett, C. J., and Haight and Brown, JJ., dissenting.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

MARRIAGE-DEEDS IN FRAUD OF-INNOCENT PURCHASERS.-A secret conveyance, made just before marriage, with the intention of defeating the vesting in the wife of the right of dower, the grantor being however permitted to remain in possession, is a fraud against the wife, and void, so that notwithstanding it, for the purposes of dower, the husband may be treated as dying seized and possessed of the property. That a secret deed, executed by the wife in anticipation of marriage, would be avoided as against the husband upon the ground that marriage with the husband is deemed a valuable consideration, and that such secret deed would be an actual fraud upon his marital rights is now settled. Ramsay v. Joyce, McMul. Eq. 236; Manes v. Durant, 2 Rich. Eq. 406. In the latter case Chancellor Harper, who delivered the opinion of the court, said: "In general it is not questioned that a voluntary conveyance made by a woman in contemplation of marriage, without the knowledge of the intended husband, will be set aside as a fraud on his marital rights. It has been supposed however that exceptions have been made in some particular cases, as where the object was to make provision for the children of a previous marriage. In the case of Ramsay v. Joyce, supra, I expressed my opinion that there was no such exception. By assuming the burdens of the marriage relation the husband is regarded as a purchaser for a valuable consideration of all the personal property in possession of his wife, and is there any doubt but that a voluntary conveyance, even to provide for children, is void against a subsequent purchaser for a valuable consideration and without notice?" Let it be remembered with the instance of a husband, referred to in the case just quoted, that all right to the ownership of the wife's personal property grew out of the well-established principle of our laws (which existed until 1868) by which such personal property was vested in the husband. The husband also had the right to the use and control of any lands owned by his wife, and this right the law gave him, upon the well-recognized legal principle that all the laws pertaining to and controlling a contract are considered as expressed in such contract when made, although not mentioned therein. Hence when a man married a woman it was said to be a part of that contract that he should be vested, as owner, with her personal property, and had the right to the use and control of her real estate, although no mention was made in the contract of marriage itself expressive of such rights. Now, under the decisions of our courts, marriage is decided to be a purchase for a valuable consideration of any rights conferred by the

law upon the wife, although no expression of such results is mentioned when the contract of marriage is entered into by her. In Rivers v. Thayer, 7 Rich. Eq. 144, Chancellor Dargan announced the proposition in these words: "Marriage is a valuable consideration. Some have considered it the highest known in law. None would say it was a lower consideration than money. There is nothing unreasonable in this. The great value of the consideration consists in this: That the wife surrenders her person and her self-dominion to the husband, and enters into an indissoluble engagement with him, foregoing all other prospects in life, and if the consideration for which she stipulates fails, she cannot be restored to the status in quo. She can have no remedy or relief." In speaking of a wife's right to require the personal estate of her husband to be applied to the liens under the statutes of our State fixing the order of application of such personal estate by the deceased husband's personal representative, so as to let in her claim of dower, in the case of Wilson v. McConnell, 9 Rich. Eq. 513, the court used this language: "But this claim is met by a corresponding equity on the part of the widow, who is entitled to the position of a purchaser for valuable consideration against all but existing liens" (liens that existed before marriage). We are enabled therefore to declare it to be the law, as derived from our own decisions, that in this Commonwealth marriage is a valuable consideration to the wife, paid by her for those rights and estates that by the laws of this Commonwealth are accorded the wife as a wife. One of these is the right to a comfortable maintenance by the husband. Another is that, if he dies intestate, she shall be entitled to the one-third of his estate if he leaves children; one-half if he leaves none. Another is the right to an estate of dower in all the lands of which he may be seized during coverture if she survives him. Having thus brought the consideration of the subject down to this point, the question is presented: What does the law say shall be the result of a secret agreement between the husband and a third person, on the eve of a marriage, whereby to defeat this right of dower in lands of which the husban dis seized, and such intended husband conveys away his lands, still retaining possession thereof, and withholding all knowledge from the intended wife, before marriage? As we have already shown, such conduct of the wife in this State would be upset as a fraud. It must be confessed however that there is no direct decision in favor of the assertion of a corresponding right in the wife as against the husband. An obiter dictum however, prejudicial to this claim of the wife, occurred in Peay v. Peay, 2 Rich. Eq. 409, where Chancellor Dunkin said: "It has been said that a deed executed by the husband on the eve of his marriage, for this purpose, would be deemed fraudulent. But the propriety of this dictum may be well questioned. It is not like a deed privately executed by the wife under such circumstances. The husband becomes responsible for all the existing as well as the future debts of his wife, and may be disposed to contract with some reference to the estate he is to receive." When Peay v. Peay, supra, is examined, it will be seen that this expression of Chancellor Duukin has no pertinency to the issues therein involved, and furnishes another illustration of the danger in a judge suffering himself to let fall observations dehors the record. Of course, proceeding from such an eminent authority, it is entitled to consideration, but it cannot be invoked here as a precedent. It appears, as before remarked, that the wife's deed is set aside because it operates as a fraud on the husband's marital rights. What rights? Surely only such as he was clothed with by the law of the land in view of his responsibilities assumed when he entered into that obligation. We have seen that the law clothes the wife with rights,

and among others her estate of dower. Does not the law place heavy responsibilities upon her toward the husband? Aye, and fearfully heavy they are too when death alone affords her succor in some instances. In the remarks quoted from Chancellor Dunkin in Peay v. Peay, supra, it will be seen that he lays stress upon the fact of the assumption of serious responsibilities by the husband for the wife, assumed by him upon marriage, such as paying her debts already existing or to exist, and this is advanced as the basis for the busband's rights in his wife's estate. But, on the other hand, does not the wife have a right to look carefully, to see if he who would wed her has the means essential to support herself and such offspring as a kind Providence may give her? In England is it not a matter of every-day occurrence that the husband makes settlements upon the intended wife, often at the instance of his intended wife's family or friends? Then too in our own country is it not often considered, in the family circle, whether a marriage is advisable because of the ability of the proposed husband to care for his wife? If a man cannot be charged with indelicacy in looking into his wife's estate, surely the woman, who at best is so unprotected, may consider, when she is asked to marry a man, whether he has the means to provide for her. Here was a man of confessedly weak health. Is it to be a matter of censure that the woman be asked to be his wife and the mother of his children considered that he was the owner of a large plantation well stocked? This wife says she knew that her husband was the owner of this large landed property, and that any change in this ownership was studiously withheld from her, so much so that she was not aware until a year or so after her husband's death that there was any claim that he was not the owner of these lands? Was she not deceived? Did not both Heury and Stephen Gibson secretly confederate together to destroy an estate that they both knew the law would give her at her marriage? Was this not a fraud? Marriage to a woman is a valuable consideration for the purchase of the privileges of wifehood with all the rights affixed to that relation by the law of the land, and any secret combination to defeat the vesting of those rights, between the husband (the vendor) and his vendee, is an actual fraud. By the law of the land, when it is discovered and established, such deed is null and void, revesting the title, so that it may be said Henry A. Gibson died seized and possessed of his landed estate that was attempted to be conveyed by him to Stephen Gibson, so far as such lands still remain in the control of the said Stephen Gibson. We have not reproduced much of the learning with which both sides to this contest indulged at the hearing before us. Much of it referred to the action of the courts of other States than our own. In our best judgment the solution of these interesting points of law was easily supplied by our own decisions. S. C. Sup. Ct., Sept. 30, 1892. Brooks v. McMeekin. Opinion by Pope, J.

MARRIAGE-VALIDITY—AUTHORITY TO SOLEMNIZE. -Where a marriage is celebrated before any person professing to be a justice of the peace, minister of the gospel or other person authorized by law to solemnize marriages, and it is consummated with the full belief on the part of the persons so married, or either of them, that they have been lawfully joined in wedlock, the marriage will be valid, although the person before whom it was solemnized had no authority. And although a license is required, yet a failure to procure the same, although it may render the person performing the ceremony liable, will not of itself affect the validity of the marriage. 2 Kent Com. 85, note b; Blackburn v. Crawfords, 3 Wall. 185; Carmichael v. State, 12 Ohio St. 555. In the case last cited the plaintiff in

error, who had a wife then living, was married a second time. The second marriage had been performed by a person who had no license or authority to perform the marriage ceremony. The court sustained a conviction for bigamy against the husband. It is said: "The act of the General Assembly is an act regulating marriages; it does not profess to create or confer a right to marry, but only to regulate the exercise of a right, the existence of which is presupposed. The consequences of denying validity and effect to the exercise of the right would be so serious that an intention to do so will not be inferred, but must be clearly expressed." In Meister v. Moore, 96 U. S. 76, it is said: "A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner, but an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license or publication of bans, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent, and such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwithstanding the statutes, unless they contain express words of nullity." Catterall v. Sweetman, 1 Rob. Ecc. 304; Port v. Port, 70 Ill. 484; Campbell v. Gullatt, 43 Ala. 57; 14 Am. & Eng. Enc. Law, 514. The practice in Great Britain under the ecclesiastical laws or rules appears to be the announcement in a particular church of the intended marriage, the purpose being to give all persons who may oppose the marriage an opportunity to present their objections before the marriage takes place. Poth. Traite du Marr., p. 202; 1 Bouv. Law Dict. (14th ed.) 189. The principal object is to prevent ill-advised and clandestine marriages. The statute requiring license is designed to take the place of publication of bans, and the law as to both is directory, and the failure to observe it does not affect the validity of the marriage. The marriage therefore was valid, and the defendant in error is the wife of the plaintiff in error, and she cannot recover damages for a void marriage. Neb. Sup. Ct., Oct. 11, 1892. Haggin v. Haggin. Opinion by Maxwell, C. J.

MINES-CONVERSION OF ORE-ACTION BY LESSEE.When plaintiff is in possession of land under a mining lease which gives him the exclusive right to mine for a certain term of years, subject to the payment of a roy. alty, and requires him to mine seven thousand tons each year, and as much more as can reasonably be mined on the land, and by which he is bound to pay for seven thousand tons each year, whether mined or not, but with the privilege of crediting any such payment for ore not mined on ore mined in excess of seven thousand tons in any succeeding year, he has such property in the ore before it is mined that he can maintain trover against one who mines it without his consent. The defendant's contention is that the plaintiff is, under this instrument, a mere licensee, and that a licensee who is privileged by his license to mine ore has no such beneficial interest or title in the ore before it is severed from the realty as to entitle him to bring trover against one who enters upon the land and mines it without his permission. Defendant's counsel cite, as sustaining this proposition, Grubb v. Bayard, 2 Wall. Jr. 81; Brandt v. McKeever, 18 Penn. St. 70; Iron Co. v. Wright, 32 N. J. Eq. 248; Baker v. Hart, 123 N. Y. 470; Gillerson v. Mansur, 45 Me. 25. In Grubb v. Bayard it was held that under the general

terms of the license in question the licensee was privileged to enter upon the lands and mine the ore or not, as he saw fit. The words employed were "full and free liberty to dig all metals and minerals throughout the demised lands." It was held that this language did not exclude the owner of the soil from mining, and that therefore no title vested in the licensee in the ore until actually mined. In Brandt v. McKeever it was held that a statute which gave the right to dig and mine for iron, coal, limestone, sand and gravel, fire clay and other minerals, did not grant a right to the soil, but a right to mine and dig in it, and to take to the use of the warrantee the product of his digging and mining, and every thing he shall have made his own by the products of his labor, but nothing else; that a grant of the right to dig and mine conveys no more than a license to take and appropriate the minerals beneath the soil, but vests no property in them until they are taken and appropriated; that under the statute in question the plaintiff had no better right than had the defendant to the sand deposited, or rather that the right to it was exclusively in the State. In Iron Co. v. Wright it was said: "A license may confer either a sole or exclusive right, or simply a right in common. If it simply confers a right to dig and take ore or work a mine, it is not exclusive, and the licensor may himself take ore from the same land or mine, or license others to do so. And when it authorizes the licensee to dig and carry away all the ore to be found in certain lands, it does not confer an exclusive right. If it be merely a license, and no estate or property in the land is passed, the licensee acquires no title to the ore until it has severed it." And it was said, as to the defendant's right in that case: "His license was unexecuted; he obtained it without paying a consideration for it, and had done nothing under it which rendered its revocation, either as a matter of law or conscience, unfair or unjust. If his license invested him with no estate or interest in the land, and no equities have been raised in his favor by an expenditure of money or labor under it, it is difficult to understand by force of what legal or equitable rule it can be said to possess the least efficacy after the person who granted it has ceased to have any interest in or dominion over, the lands upon which it was intended to operate." In Baker v. Hart it was held that the plaintiff, under a grant to him of the sole and exclusive right of entering in and upon the lands for the purpose of quarrying, cutting, crushing and removing stone for the term of ten years, but not to hold possession of said lands for any other purposes," acquired no such right in the unmined ore as entitled him to maintain trover against a wrong-doer. It was said in that case however that "a right to take all the stone on the land without restriction in time or quantity might readily be held to transfer its ownership," and that under the facts in the case under consideration, undoubtedly the act of defendant was an infringement of their rights, for which they could recover such damages as they in fact sustained. The case of Gillerson v. Mansur is not in point. Plaintiff in that case rested his claim of title upon the permit to take the timber which defendant had appropriated, within a specified time, and not after, and upon certain conditions. The timber had not been cut by the plaintiff, and by the terms of the permit the original owner was to have the original and complete ownership and control of all timber to be cut upon the land, and it was further stated as a fact that it did not appear that the conditions by which the timber could be cut were ever fulfilled in any respect. And it was said: "Nothing is exhibited in the case that Gilman had not the title and right of possession exclusively to the property replevied, and the issue that the plaintiff had no right of possession therein