O v^lOSANCElfj^ '^^/iiia/\INl]-3'k\>' *H ^OFCALIFOff^ ^OPCAUFO/?^ ,,v-insANGFiFr.. >- n '^J^il]DNV-S01^'^ UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY ^lUJ] ^w^ ^. ^Xil30.SVS01^ %iiaA OJIIVDJO'^ ^.i/OJI OfCALIFO/?/ ^ t. .OS lOS \E-UN1VER^/ m ^OA«vaaii#' "^^^An 3/xiNa-3V\v ■'uunuvjiO ^OfCALIFOff,^ ,v^ ^. ciudlivj-dv) ' ^. ^OFCAllFOff^ ^. .^tltUNiVLKi .\weuniverva ■ ^lo: ^^\iOjiIVJ-jO-^ '^iirjNViUV^ • tvv ifr.- nFTAIir ^.., 'V^"'"VFRy//,. ^^vlOS-AVGEia^ 10/-^ I]'. 3J ^COMMENTARIES ON THE LAW OF PERSONS AND PERSONAL PROPERTY. BEING AN INTRODUCTION TO THE STUDY OF CONTRACTS. BY THEODORE W. DWIGHT, LATE PROFESSOR OF LAW AT COLUMBIA COLLEGE, NEW YORK. EDITED BY EDWARD F. DWIGHT, OF THE NEW YORK BAR. BOSTON- LITTLE, BROWN, AND COMPANY. 1894. Copyright, 1894, By Mary B. O. Dwight, Dwight H. Olmstead, and Edward L. Partridge, Administrators. T University Press ; John Wilson and Son, Cambridge, U.S.A. EDITOR'S PREFACE. This treatise, as stated by the author, was intended as an introduction to the law of contracts. In the beginning he doubtless had in mind the preparation of a more extended work, which would have embraced the whole subject of contract law. This plan, however, was not carried out. In its stead the work was confined in its scope to those topics included in the author's lectures at Columbia Law School immediately preceding the course on contracts. These lectures form the basis of the division of subjects both as to the law of persons in the first book and the law of personal property in the second. In the law of persons the grand division of absolute and relative rights is observed throughout. The former class is divided into the rights of personal security and personal liberty, while under the latter and more numerous class of relative rights are considered those which spring from the relations of husband and wife, parent and child, guardian and ward, and master and servant. Separate chapters are devoted to citizens and aliens, infancy, the doctrine of status as affecting capacity, and finally to corporations, which closes the first book. h7\zio j^ editor's preface. In considering the rights of personal security and personal liberty, the author has discussed at length, in connection with early EngHsh statutes, the rights and privileges of citizens of the United States under the Constitution and its amendments. Provisions in restraint of the general government on the one hand, and of the States on the other, are examined and explained in detail under separate subdivisions. There is also given an extended account of the writ of habeas corjnis in the State and Federal Courts, and also separately in its relation to extradition. The right of private property in things personal forms the subject of the latter half of the work. In the opening chapters considerable attention is paid to elementary dis- tinctions peculiar to different forms of ownership, and to the qualifications under which all ownership exists. Chief among these qualifications are eminent domain, pubhc necessity, and the police power. By far the more important part of the second book, however, treats of the methods of acquiring ownership, which may be by " original acqui- sition" or by "act of the law." Under the former mode are grouped capture, finding, occupancy, accession, con- fusion, copyrights, patents, and trademarks; under the latter, forfeiture, escheat, taxation, eminent domain, judg- ment, assignments in trust for creditors, bankruptcy and insolvency, and succession by will or in case of intestacy. To the very full treatment of wills and intestacy there is appended a section on the rights, duties, and liabilities of executors and administrators. These subjects, various as they are, are discussed in detail, and the principles applicable to each expounded with that degree of particularity which the importance editor's preface. V of the subject demands. In support of the views of the text, the author has selected such authorities as seemed best to explain and fortify the position taken. In preparing the manuscript for publication, I have not endeavored to do more than to add such late decisions and statutes as the lapse of time since its completion has made necessary. In accordance with the plan to which the notes and citations of the author conform, no attempt has been made to give a complete list of late decisions. Later authorities, except where they change or add to the rule as stated in the text, or except where it was thought they were valuable merely because recent, have been omitted. Some alterations have been made in the arrangement, and certain passages omitted altogether, because of changes in the law. With these exceptions the text remains as originally written. The notes and citations made by the author appear below the text, and are separated by a line from those I have added. E. F. D. 36 Broadway, New York, October 1, 1894. CONTEXTS. ■ •■ ■ — BOOK I. THE LAW OF PERSONS. CHAPTER I. INTRODUCTORY. PAGE Rjcrhts. — Public Law as distin^ished from Private Law. —Municipal Law defined. — Remedies at the Common Law 1-9 CHAPTER IE THE SOURCES OF THE LAW 10-44 Division I. — Common Law. I. Equity. — II. The Roman or Civil Law as used in the Admiralty, Ecclesiastical and Military Courts. — The Pandects or Digests. — The Institutes. — The New Code and Novels. — The Relation of the Roman Law to the Jurisprudence of England. — III. Reports as Depositaries of Rules of Law. — Rules determining the Value of a Reported Case 11-28 Division II. — Statute Law. I. Preliminary. — The Law-making Power in the United States and England. — Public and Private Statutes. — Declaratory, Penal and Remedial Statutes. — II. Rules Governing the Interpretation and Con- struction of Statutes. (1) General Rules of Interpretation. (2) Special Rules applicable to the Interpretation and Construction of Statutes. — III. Repeal and its Effect. — Express and Implied Repeal.— IV. Constitutional Restrictions upon Legislation by Congress, by State Legislatures, and by Parliament -o t-t yiii CONTENTS. FAOB CHAPTER III. THE EIGHTS OP PERSONS 45-118 Absolute Rights — Personal Security, Personal Liberty, and Private Prop- erty. — Magna Ckarta. — Petition of Riglit, — Habeas Corpus Act. — Bill of Rights. — Act of Settlement 45--51 Provisions of the United States Constitution in Restraint of the General Government. — I. Restrictions upon Legislation usurping Judicial Methods. (1) Bills of Attainder. (2) Ex post facto 'L^.vis. — II. Reg- ulations preventing Unnecessary Interference by Congress with the Free dom of the Individual. (1) Religion and the Free Exercise thereof. (2) Freedom of Speech and of tlie Press. (3) Right to Assemble and Petition for a Redress of Grievances. (4) Quartering Soldiers. (5) Right to Keep and Bear Arms. — III. Restrictions aifecting the Administration of Justice. (1) Suspension of the Privilege of the Writ of Habeas Corpus. (2) Security against Unwarrantable Searches and Seizures. (3) Trial by Jury in Criminal Cases. (4) Speedy and Public Trial in Criminal Cases. (5) Regulations as to the IMethod, Progress, and Results of Criminal Trials. (6) General Regulations in Criminal Trials. (7) Trials in Federal Courts in Civil Actions . . 51-72 Provisions in the United States Constitution in Restraint of State Action. — Fourteenth Amendment. — Due Process of Law. — Equal Protection of the Laws 72-77 Personal Security. — Assault and Battery. — Duress. — Injuries to Health or Personal Comfort. — Injuries to Reputation. (1) Libel. (2) Slan- der. — Principles applicable to both. — Malice. — Privileged Commu- nications. — Defences. — Denial. — Justification and Mitigating Cir- cumstances 77-94 Personal Liberty. — False Imprisonment. — Writ of Habeas Corpus. — I. The Applicant. — II. Method of Procedure. — III. Remand and Discharge. — IV. Habeas Corpus in United States Courts. — Habeas Corpus and Extradition. (1) Interstate. (2) Foreign Extradition. — Writ of Ne Exeat. — Religious W^orship. — Freedom of Speech and of the Press 94-118 CHAPTER IV. CITIZENS AND ALIENS 119-140 Division I. — Citizens. Sect. I. Acquisition of Citizenship. (1) By Birth. (2) By Naturali- zation 12.3-128 Sect. IT. Special Rules as to Citizenship under the United States Con- stitution. (1) Privileges and Immunities of Citizens. (2) Rights secured by the Fourteenth Amendment 128-131 Division II. — Aliens. I. Disability to acquire Land. (1) Acquisition by Purchase. (2) Title by Descent. — IL Special Questions concerning Alienage. III. Alien Enemies. (1) No Standing in our Courts. (2) Legality of Contracts. — IV. Right of Expatriation 131-140 CONTENTS. IX CHAPTER V. PAGE HUSBAND AND WIFE 141-232 Preliminary Remarks as to the Domestic Relations Ill Division I. — The Creation of the Relation of Husband AND Wife. Sect. I. Capacity to Contract ]\Iavriage. (1) Defect in Age. (2) Mental Unsoundness. (3) Force and Frand. (1) Consanguinity and Affinity. (5) Corporeal Impotence. (6) Polygamy. (7) Miscegenation . 112-151 Sect. II. The Marriage Contract itself. (1) Its Essential Elements: Assent, Present Words, Freedom from Restraint. (2) Form and Requisites of the Contract, Direct Evidence, Indirect Evidence ; Pre- sumptions arising from Cohabitation, General Reputation, Declarations of the Parties, Recognition by the Parties, etc. — Validity of Foreign Marriages 151-159 Division II. — Annulment, Dissolution, and Judicial Separation. Sect. I. Annulment 159 Sect. II. Dissolution. I. Parties. — II. Methods of Procedure, includ- ing Rules as to Alimony, Counsel Fees, and Expenses. — III. Defences. (1) Denial. (2) Recrimination. (3) Condonation. (4) Procure- ment. (5) Connivance. (6) Collusion. (7) Delay and Statute of Limitations. — IV. Effect of the Divorce. (1) Support of the Wife, and Rules as to Permanent Alimony. (2) Legitimacy of Children. (3) Custody of Children. (4) Property Rights. (5) Penal Disabili- ties. — V. Effect of Foreign Divorces. (1) Marriage not Performed in the State where Obtained. (2) Domicile of the Parties elsewhere. (3) Defendant absent from the Jurisdiction. (4) Fraud in the Pro- ceedings . . . , 160-184 Sect. III. Judicial Separation. I. Cruelty. — II. Desertion. — III. Procedure in the Action 185-190 Division III. — The Legal Consequences of the Marriage Relation. Sect. I. Husband's Rights in the Wife's Property. — Subsect. I. At Common Law. (1) Her Real Estate Owned in Fee. (2) Estates in Land granted to the Husband and Wife after Marriage. (3) Life Estates in Land. (4) Rights of Action. (.5) Chattels Real. (6) Tan- gible Personal Property. — Subsect. II. Statutory Changes. — INIarried Women's Act in England and Married Women's Acts in New York 191-198 Sect. II. Obligations which the Husband assumes by the Marriage. CONTENTS. FAOB Subsect I. To pay the Wife's Ante-nuptial Debts. — Subsect. II. To Support Her. (1) Where the Parties Cohabit. (2) Where the Hus- baud deserts the Wife. (3) Where the Wife is expelled from the llusbaud's House. (4) Where the Wife deserts the Husband without Cause (5) Adultery of the Wife. (6) Separation by Mutual Con- sent — Subsect. III. Liability for the Wife's Torts. I. Actionable Wrongs before iMarriage. - II. After Marriage. — Subsect. IV. Lia- bility for the Wife's Crimes 198-206 Skct. in. Capacity of the Wife to make Contracts. — Subsect. I. At Common Law — Subsect. II. Special Statutory Rules in Xew York and England . .' 206-215 Skct. IV. The View taken by Courts of Equity of the AVife's Separate Estate. — Separate Use Trust and Methods of Creation. (1) By Ante- . nuptial Settlement. (2) Postnuptial Settlement. (3) With a View to Separation. (4) Other Methods than a Settlement. — Pin Money Trust. — Rights of the Wife over Property held for her Separate Use 215-223 Sect. V. Other Rights and Disabilities. — Of the Wife to make a Will of Real or Personal Property. — Of Either to the Society of the Other. — Civil Damage Acts, Principles established under them. — Wife's Right to Protection from Violence. — To the Use of the Husband's Simiame. — Domicile of the Husband that of the Wife. — Husband and Wife as Witnesses for and against Each Other. — Wife's Right of Dower 223-232 CHAPTER VI. PARENT AND CHILD 233-267 Division I. — Legitimate Children. Sect. I. Diities of Parents. I. ISIaintenance. — II. Protection. — III. Education. — Of a Mother to Maintain her Minor Children . 233-239 Sect. II. Authority of Parents over Children. 1. The Right of Custody, Habeas Corpus, Rules in Equity. — II. Right of Discipline and Train- ing. — Right to the Services of a Minor Child ; Actions for Loss of Service. — Lord Campbell's Act 239-251 Sect. II L The Relation of the Child toward the Parent. I. Status or Domicile. — Rights of Child as such. — Duties toward Parents. (1) Maintenance. (2) Protection 254-256 Division II. — Illegitimate Children. I. Where the Mother is Unmarried both at the Birth and Conception of the Child. — II. Where the Mother is Married, but the Husband is not the Father. — III. Where the ]\Iother is a Widow at the Time of the Child's Birth. — Legal Rights and Duties of the Parents of Illegitimate Children.— Status of an Illegitimate Child. — Rules of Public Policy. — Establishment of Legitimacy by a Direct Legal Proceeding. — Amer- ican Statutes 256-265 Division III. — Adopted Children . . . 265-267 CONTENTS. XI CHAPTER VII. PAGE GUARDIAN AND WARD 268-283 Sect. I. Rules of the Roman Law as to Guardianship. I. Appointment. — II. Character of Duties. — III. Accountability 268-270 Sect. II. Kinds of Guardians in English and American Law. — Those created by Law. (1) By Nature. (2) By Nurture. (3) In Socage. (4) By Estoppel. — Those Appointed. (1) Testamentary Guardians. (2) Those appointed by Courts of Chancery. (3) Those appointed by Surrogate's or Probate Courts. (4) Guardians ad litem and Special Guardians 270-277 Sect. III. The Powers of Guardians, as to the Personal and Real Estate, and the Person of the Ward 277-280 Sect. IV. Duties of Guardians. (1) To make Proper Investments of the Ward's Funds. (2) To account to a Court of Equity. (3) To take no Position adverse to the Ward's Interests. (4) To properly Educate and Train the Ward 280-283 CHAPTER VIII. INFANCY 284-803 Sect. I. Infancy considered as a Status 284-286 Sect. II. Capacity of Infants to make Contracts. I. General Rule. — II. An Infant's Capacity to Contract for Necessaries. — III. Ratification by an Infant of Voidable Contracts. (1) Conveyances of Real Estate. (2) Purchases and Leases of Real Estate. (3) Sales, Mortgages, and Purchases of Personal Property and Contracts having the Element of Mutuality. (4) Ratification of Indebtedness incurred during Infancy. — IV. Disaffirmance of Contracts during Infancy or Afterwards. — Right to Recover back Money Paid. — Rescinding Contract of Service. — Who can take Advantage of an Infant's Disability .... 286-296 Sect. III. Capacity to do and Perform Civil Acts other than Con- tracts _ 296,297 Sect. IV. Special Rules in Courts of Equity for the Protection of Infants 297-300 Sect. V. Statutory Protection to Infants 300, 301 Sect. VI. Liability of an Infant for his Torts 301,302 Sect. VII. Liability for Crimes 303 CHAPTER IX. THE DOCTRINE OF STATUS As AFFECTING THE CAPACITY OF PERSONS OF UNSOUND MIND (INCLUDING IDIOTS AND LUNATICS, AS WELL AS HABITUAL DRUNKARDS AND PRODI- GALS) 304-312 Sect. I. The Jurisdiction of the Court 305, 306 Sect. II. The Mode of Proceeding 306, 307 Sect. III. The Effect of the Adjudication. — Status of Indians . . 307-312 ^j,- CONTENTS. CHAPTER X. PAGE MASTEIl AND SERVANT 313-349 Division I. — Slavery 313, 314 Division II. — Apprenticeship. Voluntary and Compulsory Apprenticeship. I. Method of Creation of Voluntary Apprenticeship. — II. Effect of the Relation. (1) Rights and Duties of the Master. (2) Rights and Duties of the Apprentice. — III. Remedies for Breach of the Agreement. — IV. Dissolution. Apprenticeship under American Law. I. Rights and Duties involved in the Relation. — As between the Master and the Apprentice. — Rights of the Master as to Third Persons. — As between the Father and the Master. — II. Dissolution. — III. Compulsory Apprenticeship under the Poor Laws 315-323 Division III. — The Law of Master and Servant as Arising OUT OF Contract. Sect. I. The Relation itself 323-325 Sect. II. Rights and Duties involved in the Relation as between the Parties. I. The Duties of the Servant toward the Master. (1) To continue in the Sei'vice during the Employment. (2) To possess suf- ficient Skill to Perform the Service Undertaken. (3) To refrain from Acts of Misconduct subversive of the Contract. (4) To respond to the Master in Damages for Injuries caused by a Breach of Duty. — n. Duties of the ]\Iaster toward the Servant. (1) To continue him in Service. (2) To use Due Care in furnishing Tools, etc. (3) To use Reasonable Care in the selection of Co-servants. — Contributory Negli- gence of the Servant. — Acts which the Master is not Bound to do as between him and his Servant 325-336 Sect. III. Rights of Third Persons against the Master. I. AVhere the Master is under a Contract. — II. Duties of the Master toward Stran- gers. (1) Servant must be under the Control of the Master. — Con- tractors. (2) Employment must be Voluntary. (3) Act must be ■within the Scope of the Employment. (4) Master must owe a Diity to the Person injured 336-343 Sect. IV. Rights of the Master against Third Persons. (1) Torts com- mitted against the Servant. (2) Seduction of a Female Servant. (3) Enticement of a Servant 343-345 Sect. V. The Relation of the Servant to Third Persons. I. His Rights. — II. His Liability. — Acts of Service done Abroad brought in Ques- tion here. — Gratuitous Service 345-349 CONTENTS. Xlli CHAPTER XI. PAGE CORPOKATIONS o50-4U Division I. — General Eules applicable to all Corporations. Sect. I. Classification of Corporations 350-354 Sect. II. The Creation of Corporations 354-356 Sect. III. The Powers of Corporations. I. The Doctrine of Ultra Vires. — II. Powers as to Succession of Members, iuchiding Amotion and Disfranchisement. — III. Power to make By-Laws. — IV. Power to make Contracts. — V. Capacity to commit Torts. — VI. Capacity to acquire Lands and other Property, and to dispose of the Same. (1) To acquire Land in a Manner other than by Will. (2) To acquire by Will at Common Law and under New York Statutes. (3) The Right of Disposal. — VII. The Right and Capacity of a Corporation to Sue and to be Sued. — VIII. Special Questions as to the Powers of Corpo- rations. (1) The Question of Status. (2) Corporations as Trustees. (3) Construction of Corporate Charters 356-384 Sect. IV. The Visitation of Charitable Corporations. (1) Charitable Funds held for General Purposes. (2) Special Trusts .... 384-389 Sect. V. Judicial Control of Corporations. (1) The Relation of Corpo- rate Trustees to the Corporation. (2) The Position of Trustees or Directors toward Third Persons, (3) The Rights of Third Persons against the Corporation for the Misconduct of its Trustees or Directors (4) Remedies of the Corporation against its Directors for Mis- conduct . . 389-398 Sect. VI. Dissolution. I. By Death or Removal of all of the Members. — II. By Act of the Legislature. — III. By Surrender of Corporate Rights. — IV. By Adverse Judicial Decree. (1) L'nder the Common Law. (2) As a Statutory Remedy. — V. Effect of Dissolution. (1) In a Court of Common Law. (2) In Courts of Equity and by Statute 398-405 Division II. — Special Rules applicable to Stock Corpora- tions. Sect. I. Subscriptions for Stock and Assessments 406-408 Sect. II. The Nature of Stock . 408, 409 Sect IIL The Power of the Corporation over its Stock .... 409,410 Sect. IV. The Rights of Stockholders. (1) To Vote for Directors. (2) To receive Dividends. (3) To call Directors and Corporation to account for Mismanagement. (4) On Dissolution 410-412 Sect. V. Liability of the Corporation, Stockholders, and Directors to Creditors 412-414 -XIV CONTENTS. BOOK II. THE LAW OF PERSONAL PROPERTY. PART I. PROPERTY IN GENERAL AND THE LIMITATIONS TO ITS OWNERSHIP. CHAPTER L PAGE THE NATURE OF PEOPEETY 415-418 CHAPTER IL THE DISTINCTION BETWEEN EEAL AND PEESONAL PEOP- EETY 419,420 CHAPTER in. THINGS NOT THE SUBJECT OF PEIVATE OWNEESHIP. . 421,422 CHAPTER IV. THE QUALIFICATIONS OF OWNERSHIP. . . 423-438 Sect. I. Theft or other Wrongdoing 423, 424 Sect. II. Taxation 424, 425 Sect. III. Eminent Domain 425-430 Sect. IV. Public Necessity 430, 431 Sect. V. Regulation or Destruction of Private Property under the so- called Police Power. I. The Relation of the Exercise of this Power to Constitutional Provisions. — II. Instances of the Valid Exercise of the Police Power. — III. Instances of the Unwarranted Exercise of the Police Power 431-438 i \ CONTEXTS. XV PART II. DISTINCTIONS PECULLIR TO PERSONAL PROPERTY. CHAPTER I. PAGE ATTRIBUTES OF OWNERSHIP, INCLUDING THE POWER TO USE, SELL, EXCHANGE, ETC 4o9-4i6 Sect. I. The Power to Sell or Exchange ......... 43 -441 Sect. II. The Right to Abandon 441 Sect. III. The Power to Dispose of Property by Will 441-443 Sect. IV. Succession to the Property of an Owner dying Intestate 443-446 CHAPTER II. THE DISTIXCTION BETWEEN CORPOREAL AND INCORPOREAL PERSONAL PROPERTY 447,448 CHAPTER III. VARIOUS DISTINCTIONS OF OWNERSHIP . . 449-467 Sect. I. Absolute and Qualified Ownership 449-4.56 Sect. IT. Equitable and Legal Ownership 456-458 Sect. III. Separate and Co-ownership. (1) Joint Tenancy. (2) Ten- ancy in Common. — Partition .... 458, 459 Sect. IV. Future Estates in Personal Property. — Powers. — Suspension of the Ownership of Personal Property 460-467 PART III. TITLE TO PERSONAL PROPERTY. CHAPTER I. TITLE BY ORIGINAL ACQUISITION. . . . 469-554 Divisiox I. — Title by Capture. Sect. I. Booty 469-471 ■Sect. [T. Prize 471. 472 ^^^ CONTENTS. Division II. — Title by Finding. PAGE ^ Sect. I. Finding on Laud. - Treasure Trove. - Estrays. - Wrecks 472-478 \/ Sect. II. Finding at Sea Division III. —Title by meke Occupancy .... 480 Division IV.— Title by Accession. ^ Sect. I. The Ownershipof the Young of Domestic Animals 481 ^ Sect. II. Additions by Labor or by the Use of New Materials . . 482-486 Division V. — Title by Confusion . . . 486, 487 Division VI. — Title to Incorporeal Things by Mental Action, including the Appropriation of Trademarks. Sect. I. Title to Literary Property. I. At Common Law. (1) Literary Compositions in General. — Plays. (2) Letters. (3) Pictures and Statues. (4) Miscellaneous Cases. (5) Breaches of Trust or Confi- dence.— II. Literary Property as Protected by Statute, or Copyright. (1) Theory and Nature of Copyright. (2) Who may take a Co^^yright under the United States Laws. (3) The Subject of a Copyright and the Laws under which it is Granted. (4) The Mode of Acquiring a Copyright. (5) Term of Copyright and Renewal. (6) Assignment. (7) Infringement 488-505 Sect. II. Title to the Products of Invention and Discovery. I. To whom the Patent should be Granted. — Claim for a Patent for Improvements. — Invention described in a Printed Publication either Here or in a Foreign Country. — Invention first Patented in a Foreign Country. — Invention Known or Used by Others in this Country. — Invention or Discovery suffered to go into Public Use by Inventor or Discoverer. — Abandonment. — II. The Subject-matter of a Patent. (1) What is not Patentable. (2) What is Patentable. — III. Proceedings in the Patent Office to obtain a Patent, to Correct Defects, to Secure a Re- issue, and to Determine Questions of Interference. — The Specification. — Claim and Disclaimer. — Surrender and Reissue. — Interference Cases. — Appeal in Cases other than Interference Cases. — Special Matters concerning the Issue of a Patent. (1) Abandonment after Filing Application. (2) Rights of Assignee of Inventor. (3) Death of Inventor before Patent Issued. — IV. Substantive Rights acquired under a Patent. (1) The Patent itself. (2) Derivative or Subordinate Rights: 1. Renewal or Extension; 2. Rules governing Assignments, Licenses, etc ; (3) Infringement. — V. Remedies. (1) Cases in which the Patent is Attacked: 1. Proceedings by the United States; 2. Proceedings under the Revised Statutes by an Individual to Vacate the Patent. (2) Remedies by the Patentee : 1. Actions in a Court of Law, Defences of prior Public Use, Abandonment, Want of Novelty; 2. Suits in Equity ' . . . . 505-540 Sect. III. Title to Trademarks by Appropriation. — Preliminary. I. The Nature of a Trademark and the Ownership of it. — II. Trade- CONTENTS. xvii PAGE marks at Common Law and by Statute. (1) At Common Law. (2) By Statute. — IlL What constitutes a Valid Trademark. (1) Name of the Manufacturer or Seller. (2) Name of the Place of Origin. (3) Use of the word " Patent " where the Subject is not Patented. (4) Arbi- trary Expressions. (5) Title of a Book. (6) Device or Label.— IV. Assignment of a Trademark, — V. Trademarks as affected by the Sale of the Business, including the Dissolution of a Partnership. (1) Goodwill. (2) Brands. (3) Statement by tlie New Trader of having been with the Old Firm. (4) Where the Trademark contains the Name of One of the Partners. — VL Infringement, Injunctions for. (1) Plain- tiff must Apply with Clean Hands. (2) j\Iust be an Imitation. (3) Effect of Delay. (4) Color of Device not taken into Account. (5) Injunction may Extend to Third Persons. — VII. Registration of Trademarks. — Criminal Legislation . 540-554 CHAPTER II. TITLE BY ACT OF THE LAW 555-668 Division I. — Forfeiture ..... 555.557 Division II. — St.\te Succession or Escheat . . .557 Division III. — Taxation 558 Division IV. — Eminent Domain 559 Division V. — Title by Judgment. (1) Judgments in personam. (2) Judgments in rem 560-562 Division VL— Title from a Failing Debtor. Sect. I. Voluntary Assignments and Composition Deeds. L Voluntary Assignments. — Preferential Assignments. (1) Validity of Assign- ment. (2) Its Nature and Effect. — Non-preferential Assignments. — II. Composition Deeds 56'^-566 Sect. IL Bankruptcy and Insolvency Proceedings. (1) The Court hav- ing Jurisdiction and its Officers. (2) Kinds of Bankruptcy. — Volun- tary Bankruptcy. — Involuntary Bankruptcy. (3) Proceedings to Realize the Estate, Duties of the Assignee, the Adjustment of Claims, and the Distribution of Assets. (4) Proceedings peculiar to Partner- ships and Corporations. (5) The Discharge. (6) Fraud as an Element in Bankruptcy Proceedings. (7) The IMutual Relation of the State and Federal Courts in Cases of Bankruptcy. — Insolvency under State Laws. — Rights of Foreign Assignees in Bankruptcy or Insol- ^«"*^y 567-581 h xviii CONTENTS. Division VII. — Title by Succession. FAOB Sect. I. Title by Will. I. The Origin of the Power to make Wills of Personal Property. — II. Capacity to make a Will. — Want of Age. — .Alental Unsoundness. — Undue Influence. — Coverture. — III. The Nature and Requisites of a Will or Testament. — Mode of Execution iu England and generally in the United States. — Attestation Clause. — IV. Kevocation. (1) Express Revocation. (2) Implied Revocation: 1. Inconsistent later Wills and Codicils; 2. Subsequent Marriage and Birth of Issue; 3. Statutory Provisions working Revocation. — Non- revocable Wills. — V. Revival and Republication. — VI. Probate. — VII. The Construction, Operation, and Effect of a Will. Rules. — VIII. Legacies. (1) Kinds of Legacies: 1. Specific; 2. Demonstrative; 3. General. — Cumulative and Substitutionary Legacies; Rules for Determining. (2) Ownership or Right of the Legatee. — Vested and Contingent Legacies. — Absolute and Conditional Legacies. — Qualified Ownership in Legacies. (3) Incidents to Legacies: 1. Abatement; 2. Ademption; 3. Satisfaction in General, and between Parent and Child, and Double Portions, Rules as to. (4) Legacies charged upon Land. (5) Void Legacies: 1. Illegality; 2. Fraud; 3. Uncertainty; 4. Want of Capacity to Bequeath; 5. Incapacity of the Legatee to Take.— Corporations. — Charities. — Individual Legatees; 6. Effect of a Void Legacy 581-638 Sect. II. Succession in Case of Intestacy. — Advancements. (1) To Descendants. (2) To a Wife — Domicile as affecting Distribution 638-643 Sect. III. Executors and Administrators. I. Distinctions peculiar to Executors (1) Bonds not Required. (2) Title dates from Death. (3) In Absence of Statute may Bequeath Office. (4) Executor de son tort. (5) When an Infant or Married Woman, etc. — 11. Distinctions applicable to Administrators. (1) Cum testamento annexo. (2) De bonis nan. (3) Durante absentia. (4) Durante minore cetate. (5) Pendente life, — in. Rules common to both Executors and Administrators; Duties of. (1) To Bury the Deceased. (2) To Collect the Assets and Pay the Debts. — Real Estate as Assets. (3) Payment of Legacies. — Interest on Legacies. — Succession Duties or Taxes. (4) Distribu- tion of the Estate. (5) Management of the Estate: 1. Contracts of Personal Representatives; 2. Continuing the Business of the Decedent; 3. Care and Preservation of the Estate; (a) Duty to Insure, (b) Conver- sion of Assets, and Investments, (c) Liability for Waste. — Liability of one of several Executors. — IV. Judicial Proceedings. (1) Adminis- tration Suits. (2) Administration in the Probate Courts. — V. Ancil- lary Administration 643-668 Index 671 TABLE OF CASES. PAGE A. V. B. 147 Abbot V. Bayley 210 Abel v. Pres., etc. Del. Canal Co. 329 Abendroth v. Manhattan Ry. Co. 4'J8 Abernethy v. Hutchinson 492 Ableman v. Booth 100 Abraham v. Plestoro 580 Abrahams v. Deakin 340 Abrath v. North Eastern Ry. Co. 369 Abshire i'. Cline 83 Ackerraan, Matter of 234 Adair v. Brimmer 292 V. Shaw 196, 645, 646 V. Young 534 Adams v. Adams 619 V. Adams' Adm. 347 V Bellaire Stamping Co. 515 V. Bridgewater Iron Co. 639 V. Burke 526 V. Burton 451 V. Fitzpatrick 326 V. Gamble 224 V. Gt. W. R. R. Co. 382 V. Howard 529 V. Lavender 625 V. Meyrose 530 V. Miller 320 u. State 456 V. The People 122 V. Thomas 309 Addison v- Bowie 285 Additon v. Smith 610 Adee v. Thomas 529 Adriance v. Lagrave 110, 112 Agar-Ellis v. Lascelles 246 Ah King v. People 65 Ahrenfeldt v. Ahrenfeldt 188 Aird's Estate, In re 627 Airey v. Bower 6 Alaska, The 253 Albany Fire Ins. Co. v. Bay 209 Albro V. Jaquith 346 Alden Evap. Fruit Co. v. Bowen 515 Alderson v. Maddison 597 Alexander v. Angle 86 V. Morse 551 Alexander's Cotton 470 Allen V. Allen 176, 290, 597 V. Blunt 534 V. Maddock 588 V. M'Pherson 600 V. Rawson 508 V. State 473 Allentown v. Kramer 367 Allison V. Norwood Allsop V. AUsop Alsager v. Rowley Althorf V. Wolfe 25, Alton V. Midland Ry. Co. Am. Bell Telephone Co. v. Dolbear Ambrose v- Kerrison American Bank Note Co. v. N. Y. E. Ry. Co. American Fertilizing Co. v. Board of Agriculture American Print Works v. Lawrence Amey's Appeal Amor I'. Fearon Amory v. Flyn Amoskeag Bank v. Ottawa Am. Ry. Frog Co. v. Haven Amy V. Dubuque Anderson v. Anderson 310, 602, V. Cullen V. Goldsmith Andover Turnpike Corp. v. Gould Andres v. Koppenheafer 243. 511, 243, 245, 608, Andrews, In Andrews v. Hovey V. Partington V. Salt V. Shaffer V. State Andrina, The Angermann v. Ford Angus V. Clifford Annin v. Wren Ann L. Lockwood, The Anon. 86, 87 Ansonia Co. v. Electrical Supply Co. Anstice v. Brown Anthony v Anthony V. Rice Apollinaris Co. v. Norrish Applebee v- Percy Archenbrown, Re Arkansas Cattle Co. v. Mann Arkwright v. Newbold Armit's Trusts, In re Armory v. Delamirie Armstrong's Appeal Armstrong v. The People Armytage i'. Wilkinson Arnison v. Smith Arnold v. Hudson Riv. R. R. Co. Aronheimer i\ Stokley Aronson v. Fleckenstein PAOE 321 86 665 325 344 516 202 429 129 430, 559 348 327 476 24 364 23 604 201 212 408 83 273 538 236 246 209 58 480 617 394 527 479 186 513 133 186 183 546 343 570 481 393 298 475 610 250 614 392 428 434 490 XX Arrowsmith v. Hornmening Asliburner v. Macguire Ashbury Ky., etc. Co. v. Kiche Asliby r. Ashby V. White Asher v. Texas Ashton V. Lord Langdale Askew V. Thompson Assop V. Yates Astbury r. Beasley Aston V. Wood Atcliison, &c. R. K v. Weber Atchlev r. Sprigg Athol Music Hall Co. v. Carey Atkin I'. Acton Atkinson, In the Goods of Atkinson r. Denby V. Medford V. Rochester Printing Co. Athvnta Rv. Co. v. Kiraberley TABLE OF CASES. PAGE 7 621 360 193 345 21, 129 635 655 330 662 622 253 174 406 327 591 566 143 457 339 PAGE 535 660 320 517 612 61 649 163, 169, 225, 247 292 620, 621 277 Atlantic Giant Powder Co. v. Hulings 522 Atlantic Works v. Brady Attree i'. Hawe At wood V. Holconib Atty-Gen'i v. Alexander V. Alford V. Browne's Hospital V. Brunning V. Chelsea Water- Works V. Corporation of Bedford V. Dixie V. Fishmongers Co. V. Higham V. Kohler V. Kwok-a-Sing i-. Lubbock V. Magdalen Coll. V. Middleton 1-. Partington V. Robins V. Siddon V. St. Cross Hospital I'. Stewart V. Vernon V. Wilson Auburn Bolt Works v. Shultz Augerstein v. Jones Austin V. Austin State 508, 514 635 247 381 664 388 648 35 388 388 634 651 476 113 388 388 388 195 617 341 388 634 536 390 406 329 245, 246 433 Australia, London Chartered Bank of, V. Lempriere 224 Avelyn v. Ward 611 Avery v. Everett 78, 161, 637 Ayer v. Chase 321 Ayers, In re 381 Aymar v. Roff 281 469, B. & O. R. R. Co. V. Glenn 381 Bach V. Longman 491 Backhaus ". Sleeper 564 Badger v. Badger 156, 157 V. Phinney 294 Baggett V. Meux 222 Bagg's Case 362 Bagshaw v. Seymour 393 Bailey, Ex parte Bailey v. Gould V. King . • V. Roberton Baillie v. Butterfield Bain, Ex parte Bain v. Sadler Baker v. Baker V. Disbrow V. Farmer V. Lorillard V. Meisch L'. Sampson V. Taylor V. Union Mut. Life Ins. Co. Balch V. Smith Baldwin v. Bank of Newbury V. Casella • V. Franks r. Hale V. St. Louis Ry. Co. Ball V. Burleson r. Harris Ballard v. Burgett Ballerger v. McLain Ballin v. Dillaye Baltimore Elevator Co. v. Neal Banbury Peerage Case Bancroft v. Tiiayer Banda & Kirwee Booty Case Bank v. Weems Bank of Africa v. Salisbury Gold Mining Co. Bank of Augusta v. Earle Bank of Chenango v. Brown Bank of Ontario v. Lambe Bank of Redemption v. Boston Bank of U. S. v. Davis V. Halstead Banker v. Caldwell Banks v. Gibson r. Manchester Barber v. Barber V. Root Barclay v. Smith Barden, In the Goods of Barden v. Keverberg Bardwell i". Purrington Barfield v. Nicholson Barker, Matter of Barker v. Rayner V. The People Barlow's Will, In re Barnardo v. McHugh Barnes v. Allen V. Barnes V. Keene Barnesley v. Powell Barnett v. Allen Barnum r. Barnum Baron Penedo v. Johnson Baroness Wenlock r. River Dee Co. Barony of Saye and Sele Barr v. Fewkes 484 203 501 211 319 578 343, 452 553 577, 578 333 213 629 424 322 207 3.32, 334 173, 261 435 470 457 409 Barrere v. Barrere Barret v. Beckford 352, 381 29 43 76 368 22 497 550 497 230 177, 181 447 600 210 285, 321 491 311, 363 621, 622 69 311 262 225 163, 167, 175 2-50 643 86 156 377 360 261 638 189, 190 625 TABLE OF CASES. xxl PAGE Barrett i-. Davis 221 V. Dolan 2:28 V. Failing 177 Barron v. Burnside 75, 353 Barrs v. Jackson 647 Barry, £x parte 100 Barry v. Equitable Life Assur. Soc. 212 V Lambert 647 Barth v. Backus 580 Bartholomew v. Finnemore 294 V. Sawyer 509 Bartlett v. Drake 294 V. Muslinar 157 c. Weils 287 Bartiette v. Crittenden 488, 492 Bartley v. Riciitmyer 249 Barton v. Higgins 647 Barton's Trusts, In re 618 Bartonshill Coal Co. v. Reid 330, 331 Baruch, Matter of 109 Barwick v. English Joint-Stock Bank 394 Batcheler v. Fortescue Bate V. Graham Bates V. Mackinley V. Shraeder Battell v. Torrey Batthews v. Galindo Batty V Moaks Bawdoii I'. Bawilon Baxter v. Burfield Bayard, Matter of Bayer v. Phillips Baylies v. Curry Baylis v. Baylis Bazeley c. Forder B C. & N. Y. R. R. V. Pottle Beacli V. Beach V. Schmultz V. Trudgain Beadleston v. Beadleston Beall V. Bealls Beamish v. Beamish Bean v. Edge Beard v. Westcott 316, 252 411 618 192 279 231 317 162 317 70 277 130 170 239 407 211 487 480 166 265 153, 154 424 615 Beardsley v. Hotchkiss 273, 291, 295, 298 V. Johnson 364 Beattie v. Lord Ebury 392 Beauclerk v. Beauclerk 170 Beaufort v. Berty 273 Beaumont v. Oliveira 633 Beavan v. Lord Hastings 644 Beazley v. Soares 549 Becker v. Hastings 522 Beckham v Drake 328 Becleford v. Tobin 656 Bective v. Hodgson 637 Bedell v. Bedell 18'.) Bedford v. Bagshaw 393 Beebe v. Estabrook 641 Beecher Mfg Co. v. Atwater Mfg. Co. 508 Beekman v. Bonsor 133 Beer v. Foakes 565 Beer Co. v. Massachusetts 4.32 Beeston u Collyer 326 Belding v. Turner 527 Bell's Case 402 Bell V. Stocker PAGE 200 Bellairs v. Tucker 394 Bellamy, In re 196 Bellasis v. Uthwatt 624 Bellows V. Hallowell & Augusta Bank 405 Bengough v Walker 624 Benham v Bishop 292 Bennac v. People 98 Benner v. Puffer 424 Bennett's Estate 628 Bennett v. Bennett 21£ ,225 V. Byrne 275 V. Davis 297 V. Smith 225 Benson v McMahon 113, 114 , 115 Bentley v. GrifBn 201 Benyon v Benyon 612 Benzing v Steinway & Sons 333 Berger v. Varrelmann 564 Bergold v. Puchta 85 Berley v. Rampacher 200 Bernina, Tiie 252 Berolles v. Ramsay 288 Berrigan v. N. Y. Lake Erie Ry. Co. 329 Berringer v. Great Eastern Ry. Co. 344 Berry v. Cutts 564 Bertholf v. O'Reilly 42 ,227 Bertles r. Nunan 197 ,206 Besant, In re 243 ,246 Besondy, Re 234 Besozzi V. Harris 452 Besset, Ex jiarte 95 Bethell v. Green 653 Bethune v. Bethune 185 Bethurum, Ex parte 55 Betsinger v. Chapman 156 Betts V. Carroll 294 V. Harper 697 V. Kimpton 195 r. Lee 484 V. Menzies 618 Bevan v. Cooper 628 Beveridge v. Minter 231 V. N. Y. El. R. R, Co. 367 Beverley's Case 308 Beverlin v. Beverlin 154 Bibb V Thomas 592 594 Bibb's Adm. V. N. & W. R. R. C 0. 837 Bicknell v. Todd 527 Biffin V Bignell 204 Bigelow Grannis 293 V. Huntley 424 Biggs V. Peacock 460 V. Terry 244 Billings V. Robinson 407 Bindley v. Mulloney 217 Binney v. Annan 535 Binstead v. Buck 450 Birch V. Birch 186 Bird V. Bird 177 V. Gibb 480 Birkett v. Knickerbocker Ice Co 252 Birtwhistle v. Vardill 2.59 Bisbey v. Shaw 92 Bischoff V. N. Y. El. Ry. Co. 429 Biscoe V. Kennedy 199 xxu TABLE OF CASES. FAOE 183 409 154 358 648 214 502 528 491 360 336 Bishop i". Bishop V. Globe Co. Bissell V. Bissell _ ^ , V. Mich. So. & N. I. R. R. Co.'s Bissett I'. Antrobus Bitter v. Uatiimaii Black V. Henry G Alien Co. V. Munson II Murray Blackburn Bldg. Soc. v. Cunliffe Blackstock c N. Y. & Erie R R- Co. Blackstone Mfg. Co. v. Inhab. of Blackstone 381 Blades r. Higgs 450 Blaechinska i-. Howard Mission 213 Blagrove v. Coore 622 Blake v. Barnes 666 i;. Blake 273 . V. Ferris 337 . V. Lanyon 344 V. SanFrancisco 614 Blanc V. Blanc 167 Blanchard v. Hill 542 r. Sprague 512 Blandford v. State 112 Blann v. Bell 617 Bleck V. Bleck 167 Bliss' Petition 128 Biofield i: Payne 550 Blomfield v. Eyre 272 Blood V Humphrey 209 Bloodgood (• Mohawk, &c. R. R. 28 Blooniingdale v. Lisberger 211 Blossom I'. Barrett 179 Blotz V. Rohrbach 227 Blowers i'. Sturtevant 203 Bloxam v. Elsee 520 V. Favre 230 Blundell's Trusts, In re 634 Blunt V. Patten 497 Blydenburgh v. Miles 70 Blyew V. Commonwealth 65 Board of Education v. Minor 56 Boardman r. Boardman 186 V. L. S. & M. S R R. Co. 411 Boast V. Firth 316 Boddy V. Lefevre 272 Bogardus v. Trinity Church 370 Bogert V. Indianapolis 454 Boggett V. Frier 210 Bobm V. Met. El Ry. Co 428, 429 Bohn V. Bogue 503 BoMing V Strugnell " 613 Boldt V. N. Y. C. R. R. Co. 331 Boles, In re 99 Boiling 1). Turner 309 Bolten V. Miller 319 Bolton V. Bolton 281 V. Schriever 602 Bonaparte v. Bonaparte 182 Bond, E.r parte 2-% Bones v. Booth 34 Bonnard v. Ferryman 83 Boogher r. The Life Assoc, of America 869 Bool V. Mix 208, 290 Booth V. Baptist Church 588 PAGE Booth V. Kennard 518 Borden v. Fitcli 184 |. V. Jenks 620 ^ Bortholick, Matter of 602 Borthwick v. Evening Post 498 Bosen, Ex parte 96 Bosher v. R. & H. Land Co. 394 Bosley v. National Machine Co. 394 Boston & Prov. R. R. Co. v. N, Y. & N. E. R. R. Co. 358 Bostwick, Matter of 237 Bosvile V. Atty.-Gen'l 173, 261 Bothamley v. Sherson 609 Bouch V. Sproule 619 Boucicault v. Fox 48» V. Hart 489 Boughton V. Flint 625 Boulnois V. Peake 547 Bovill V. Pimm 518 Bowden, Iti re 656 Bowen v. Bowen 848 V. Hall 345 V. Lease 39 V. Sullivan 475 Bower v. Peate 338, 339 Bowers v. Smith 603 Bowery Nat. Bank v. SnifEen 221 Bowles V. Bingham 261 Bowling Green v Carson 435 Bowman v. Chicago, &c. Ry. Co. 433 V. Taylor 528 Box V. Box 193 V. Jackson 193 Boyce v. The People 250 Boyd V. Boyd 641 V. Brown 525 u. Croydon Ry. Co. 350 V. Higginson 629 L\ M'Alpin 531 V Watt 228 Boyle V. Zacharie 577 Boys V. Boys 617 Boyse, Re 665 Bradford Nav. Co., In re 402 Bradford v. Young 605 Bradish v. Gibbs 216, 224 Bradley v. Bradley 218 V. Healey 677 Bradly v. Heath 658 Bradshaw i-. Beard 202 V. Huish 62S V. Lancashire Ry. Co. 251 Bradstreet Co. i: Gill 88 Bragg V. City of Stockton 539 Braham v. Beachim 546 Bram v. Bram 197 Bramwell v. Halcomb 503 Branch v Walker 1.50 Brandon v. Robinson 222 J Brandon's Trusts, In re 306 ■ Brantley v. Wolf 294 ■ Brashford v. Buckingham 193 M Bray v. Chandler 327 A Brazil & C. Coal Co. v Cain 332 i Breed v. Pratt 808 Breiman v. Paasch 225 TABLE OF CASES. XXlll Bremner, Ex parte 173 Brew is, In the Goods of 588 Brewster v. Hatch 392 Brick V. Campbell 212 'QriAges, Ex parte 103 Bridges i'. Hawkesworth 475 Briggs V. Briggs 181, 348 V. Carroll 628 V. United States 470 Bright ('. Hutton 407 V. Larcher 621 Brill V. Wright 628 Brinckerhoff v. Bostwick 391, 397 Brinkerhoff v. Aloe 515 Brinkley v. Atty.-Gen'l 158 V. Brinkley 15, 161, 164 Brinsmead v. Harrison 561 British Cast Plate Mf rs v. Meredith 343 British Museum, Trustees of v. White 633 Broadbent v. Barrow 609, 610 Broadstreet v. Broadstreet 162 Bronsdon v. Winter 609 Bronson v. Bruce 93 V. Kinzie 578 Brook V. Brook 146 Brooke, In re 628 Brooke v. Kent 594 V. Logan 243 Brooker v. Scott 288 Brooklyn El. Ry. Co., Application of 400 Brooklyn Steam Transit Co. v. City of Brooklyn 400 Brooklyn, W. & N. Ry. Co., Matter of 400 Brooks V. Bicknell 531 V. Byara 527 V. Jenkins 520 V. Miller 539 V. State 473 Brophy v. Bellamy 236 Brow V. Brightman 239 Brown, Ex parte 108, 618 Brown v. Ackroyd 202 V. Carpenter 452 V. Chicago, R. I. & P. R. R. Co. 253 V. Clark 33, 591 V. Davis 533 IV Knapp 630, 656 V. Lvnch 255 V. Mallett 441 V. Maxwell 331 V. McGee 150 United States 101 V. Webber V. Welsh's Ex'r V. Whittemore Brown Chemical Co. v. Meyer Brown's Appeal Browne, Re Browne v. M'Guire Bruen v. Gillet Brugh, Matter of Brummer ;-. Colm Brunswick, Duke of, v. King of Han over 3, 379 Brunt V. Brunt Bryant v. Pottinger 37 267 319 545, 547 234 279 621 663 307 212 .'sn3 294 Bryant v. Rich PAGE 336 V. Tidgewell 228 Bryce v. Dorr 531 Brydon v. Stewart 329 Buccleuch v. Metropolitan Be 1. of Works 428 Bucher v. Cheshire R. R. Co. 25 Buckingham v. Drury 298 Buckland v. Johnson 561 Buckmaster v. Buckmaster 188 V. McElroy 228 Budd V. New York 435 Buel V. Trustees of Lockport 37 Buffalo & N. Y. City R. R. Co. v Dudley 406 ,407 Buffett V. Troy & Boston R. R. Co. 358 Bulkley v. Van Wyck 299 V. Whitcomb 891 Bull, Re 101 Bull V. FoUett 322 Buller V. Lidell 184 BuUinger v. Mackey 497 Bullock V. Wheatley 661 Bunce i-. Bunce 265 V. Vander Grift 196 Bunn V. Carvalho 7 Burch V. Newbury 29 Burdell v. Burdell 189 Burden v. Skinner 320 Burdett v. Abbot 81 V. Allen 477 Burdick v. Garrick 664 Burgess v. Burgess 548 V. Seligman 25 Burghart v. Angerstein 288 Burke, Matter of 236 Buries v. Popplewell 665 Burley v. Russell 286 Burnaby v. Baillie 173 261 Burnard v. Haggis 302 Burnie v. Getting 660 Burnley Equit. Co-op. & Ind. Soc. v. Casson 316 Buron v. Denman 124 Burr V. Burr 168, 172 189 V. Cowperthwait 521 V. De La Vergne 526 V. Wilcox 406 Burress r. Commonwealth 66 Burrill v. Boardman 631 Burrouglis i-. Burroughs 225 Burrow, &c. Lith. Co. v. Sarony 500 Burrus, In re 100 Burt V. Evory 513, 515 Burt and Towne, Tn re 577 Burtcnshaw v. Gilbert 592 594 Burtis V. Burtis 15 1(11 Burton v. Newbery 59!) V. Sturgeon 178 Burwell v. Mandeville's Executor 659 Bury V. Bedford 547 Busell Trimmer Co. v. Stevens 515 Bush V. Fox 518 V. Prosser 92 V. Steinman 337 Bushnell v. Beloit 29 XXIV TABLE OF CASES. PAGE Buslinell i'. Carpenter 613 480 170 274 Buster v. Newkirk Duller !•. Butler i\ Freeman I'. Palmer 28 V. Slam 347 V. Steckel 514 Buxton V. Buxron 661 Buzzell I'. Andrews 533 Byam v. Byam 223 — — ('. Collins 88 V. Eddy 531 Byers v. Commonwealth 60 Bynner r. The Queen 536 Byrne v. Van Hoeseu 271 Cadell V. Palmer 465, 466, 615, 631 Caden v. Farwell 321 Cadman i'. Cadman 2o6 Cady V. Cady 628 Cahill V. Hilton 334 Calioon V. Ring 508 Caird v. Sime 41)2 Cal';utta Jute Mills Co. v. Nieholson 381 Calder v. Bull 54 Caldwell v. Van Vlissengen 505, 506, 640 Calhoun v. Delhi R. R. 40 California, State of v. Rogers 29 California Electrical Works v. Finck 526 Callaghan, hi re 281 Callaghan v. Myers 497, 500 Callan i'. Wilson 50, 60 Callo V. Brouncker 327 Calvin's Case 120, 121 Cambrian Peat, Fuel, & Charcoal Co., Re 401 Cambridge v. Rous 615 Cameron v. Baker 264 Campbell v. Campbell 156 V. Crampton 145 V. Graham 610, 622 V. Lucy 600 V. Mackay 244 V. M'Conaghey 630 V. Race 431 r. Spottiswoode 89 r Stakes 302 Canada Southern R. R. Co. v. Gebhard 581 Cancernie v. People 46 Candler v. Tillett 663 Candor's Appeal 348 Caney v. Bond 661 Cannon, In re 109 Cannon v. Cannon 261 Canovar v. Cooper 247 Cantclou v. Doe 150 Canter v. People 66 Capella, The 479 Cape May, etc. Nav. Co., In re 363 Capper's Case 300 Carey v. Berkshire R. R. Co. 250 Caririle v. Wood 156 Cargill V. Bower 396 V. Cargill 188 Carley v. Graves 457 Carlisle v. United States 138 Carlson v. Phcenix Bridge Co. 329 Carlton v. Bokee 520 Carmichael v. Carmichael 644 Carnahan v. Schwab 564 Carow V. Mowatt 297 Carpenter v. Schernierhorn 210 V. Smith 511 17. Whitman 263 Carr v. Griffith 619 Carrier v. Brannan 436 Carroll v. Lessee of Carroll 23 Carsan v. Watts 320 Carson v. Murray 217 Carte v. Duff 490 V. Evans 490 V. Ford 490 Carter v. Beck with 308 V. Howe Machine Co. 369 V. Montgomery 149 Carthage, Village of, v. Frederick 74, 366 Cartlidge v. Cartlidge 175 Ca.-trell v. Wallick 538 Cartridge Co. v. Cartridge Co. 523 Cartwright v. Cartwright 217 V. McGown 152 Cary v. Bertie 274 V. Faden 491 V. Longman 491, 497 V. Wolff 515 Case of Monopolies 505 Case of Swans 449 Case V. Marks 93 Casey v. Cincinnati Typ. Union 82 Cassidy v. Maine Cent. R. R. Co. 332 Cassin v. Delany 205 Casson v. Dade 590 Castanos v. Ritter 250 Castle V. Fogerty 227 V. Lewis 358 Castleden v. Castleden 148 Castrique v. Irarie 579 Castro V. De Uriarte 114 Caswell V. Hazard 545, 550 Cathcart v. Fire Dept. of New York 29 Catlin V. Haddox 292 CaujoUe v. Ferrie 155 Cavin v. Gleason, Matter of 457 Cawley's Estate 597 C. B. & Q. R. R. Co. V. Iowa 399 Celluloid Mfg. Co. v. Am. Zylonite Co. 515 Co. 515 515 430 564 333 Chrolithion C. & C. V. Comstock, &c. Co. Central Bridge Corp. i'. Lowell Central Nat. Bank v. Seligman Central R. R. Co. v. De Bray Central Transp. Co. v. Pullman's Car Co. Cent. Ry. Co. of Venezuela v. Kisch Cesena Sulphur Co. v. Nicholson Chaddock v. Day Chalker, In re Chamberlain v. Chamberlain 34, 156, 161, 173, 238, 374, 375, 633, 643 V. Napier 223 Chamberlin v. McCallister 328 359 392 381 366 209 TABLE OF CASES. XXV PAGE Chambers v. Smith 527 Champion, The 479 Chancey's Case 623 Chandler v. De Graff 486 I'. Edson 484 V. Simmons 294 Chapin v. Shafer 292, 295 Chaplin v. Chaplin 624 Chapman v. Ferry 500, 505 I'. Phoenix Nat. Bank 471 Cliapple V. Cooper 289 Charkieh, The 3, 5, .379 Ciiarles v. Taylor 331 Charlock v. Freel 337 Charlotte &c. R. R. Co. v. Gibbes 74 Charlton v. Earl of Durham 647 Chase v. Sanborn 497 Chatham Furnace Co. v. Moffatt 393 Cheavin v. Walker 546 Cheese v. Lovejoy 593 Cheever v. Wilson 181, 184 Chemical Nat. Bank v. Kohner 565 Chenango County Mut. Ins. Co., Mat- ter of 364 Cheney v. Arnold 152 Cherry v. Colonial Bank of Austral- asia 392 Cheshire v. Barrett 292 Chester, City of 19, 480 Chetwynd v. Chetwynd 175, 178 Cliewacla Lime Works v. Disraukes 359 Chicago City v. Bobbins 327 Chicago Mil. & St. P. R. R. Co. v. Ross 333 Chicago Music Co. v. J. W. Butler Co. 505 Chicago Packing, &c. Co. v. Chicago 435 Chicago & T. R. R. Co. i'. Simmons 332 Chichester, Lord, v. Coventry 623, 024 Child V. Child 273 V. Homer 93 Chilton V. London & C. Ry. Co. 366 China, The 339 Chipman v. Montgomery 666 Chirac v. Chirac 126 Chisholm v. Georgia 380 Christmas v. Russell 184 Chubb V. Stretch 199 Church of the Messiah, Matter of 376 Churchill v. Lewis 225 Churchward v. Chambers 827 Churton v. Douglas 542 City Hank of Columbus v. Bruce 409 City of Bowling Green v. Carson 435 City of Brenham v. Brenham Water Co. 366 City of Chester, The 19, 480 City of Chicago v. Cameron 397 ('. RumpfE 366 City of Glasgow Bank Cases 395, 402 City of Little Rock v. Barton 435 City of Marshalltowu ;;. Blum 436 City of Portland v. Richardson 327 City of St. Louis v. Bircher 4.35 Civil Rights Cases 75, 130 Civil Service Supply Assoc, v. Dean 547 Claflin V. Continental Works 486 Claridge v. Evelyn 297 Clark, Matter of 127 Clark V. Adie 528 V. Adie (No. 2) 518 V. Bever 405 I'. Browne 622 V. Clark 235 , 283 V. Fisher 601 V. Fitch 247 ,248 V. Fosdick 172 ,217 V. Freeman 82 V. Fry 337 V. Miller 29 V. Mitchell 74 V. Montgomery 277 V. Tarbell 580 V. Van Court 294 Clarke, Ex parte 66 Clarke, Re 246 Clarke v. Burke 202 V. City of Rochester 41 V. Clarke 144 V. Cobley 287 289 V. Dickson 392 V. Earl of Ormonde 655 V. Holmes 329 V. Sawyer 601 V. Van Surlay 279 Clarkson v. Clarkson 593 594 618 Clayton v. Liverman 597 " V. Stone 497 498, 499 Clearman v. Clearman 187 Clement v. Maddick 503 V. Riley 150 Clements, Ex parte 65 Cleopatra, The 479 Clerk V. Ward 590 Clifford V. Burton 231 V. Old Colony R. R. Co. 332 Clifton V. Burt 652 Clinch I'. Financial Corp. 404 Clinton v. Clinton 172 I'. Rowland 246 Clough V. Bond 196 Glowers v. W. St. L. & P. R. R. Co. 333 Coard v. Holderness 610 Cobbett V. Woodward 497 503 Cochran v. Van Surlay 41 279 Cochrane, In re 229 Cochrane v. Badische, etc. Fabrik 522 Cockerel! v. Barber 654 Cockran r. State 322 Cocks V. Haviland 662 Coddington v. Coddington 183 Codrington v. Codrington 175 Coffeen v. Brunton 497 Coffin V. Bassett 320 V. Tracy 37 Cogley V. Cushman 294 C!ohn V. Cohn 186 Colah, Matter of 311 Cole, In the Goods of 588 Cole V. Cassidy 393 V. Cole 171 v. Mann 424 XXVI TABLE OF CASES. Cole V. Millerton Iron Co. V Kyan Coleman," iMatter of Coleman, I\e Coleman r. Burr V. Coleman i\ Kiclies Collard i'. Marshall Colleton V. Garth Collier, Ex parte Collier v. Chadwick . V. Munn V. Kut ledge Collingwood v. Pace Collins.. Collins 116,152,157,160,166 '-■• ^^^" r5q Collinson v. Lister oow Collison v. Curling 622 Colonial Bldg. Assoc, v. Atty.-Genl of Quebec 43 Colonial Life Ass. Co. v. Home & PAGE 405 407 127 59 213 167 340 83 622, 642 58 649 282 596 134 Colonial Ass. Co. 544, 545 Colt V. Colt 2^9 Columbia Mill Co. v. Alcorn 546 Colville V. Middleton 610 Com. V. Baird 319, 320 i\ Bearse 433 r. Beck 320 V. Bowden 65 V. Cook 65 V. Deacon 320 321 V. Desilver 494 V. Detwiller 363 V. Edwards 320 321 r. Hamilton 60 320 V. Harrison 320 V. Hawes 112 V. Huntley 433 V. King 321 V. Kinsley 434, 435 436 V. McCormick 66 V. Munson 154 V. Omohundro's Adm. 156 V. Perry 74 V. Strieker 261 V. Sutherland 67 )'. Titus 473 I'. Wilbank 319 V. Wyatt 70 Comer ;•. Cunningham 424 Compton r. Bearcroft 158 V. Bloxham 616 Comstock, hi re 382 ,570 Concklin r. Havens 482 Condy v. IMitchell 5-50 Conger ;■. Van Aernum 347 Congress, &c., Spring Co. V. High Rock, &c. Spring Co. 546 Conley i\ Portland 332 Conner v. Elliott 128 Connolly v. Connolly 664 i\ Farrell 620 Connor, In re 98 Conrad v. Ithaca 338 V. Lane 286 Conservators of the River Tone v. Ash 355 Consolidated, &c. Co. v. Wolf Constantine v. Van Winkle 39, Constantinople & Alexandria Hotel Co., In re Continental Store, &c. Co. v. Clark Converse v. Converse Conway, Matter of Conway v. Lynch V. Reed Coode, In the Goods of Cook, Li re 106, 107, Cook V. Bradley V. Cook 183, V. Gregson V. Hart V. Pearce V. Starkweather V. Tullis V. Winchester Cooke V. Cooke V. Newell Cooke's Trusts, Zn re Coon V. Syracuse & Utica R. R. Co. Coope V. Cresswell Cooper V. Blissert V. Bockett V. Cooper 188, 285, V. Crane V. Lloyd V. Martin V. Shepherd V. Simmons V. Telfair Coote V. Whittington Cope, In re Cope V. Evans Corbett v. Poelnitz Corliitt V. Corbitt Corliss V. E. W. Walker Co. Corn Exch. Ins. Co. v. Babcock Cornell v. Hay Cornell University i\ Fiske Cornwall v. Hawkins Corpe V. Overton Corrance v. Corrance Corsair, The Corson c. State Cory r. Burr V. Carter Cossette v. Dun Costello's Case Costerton v. Costerton Costigan v. Mohawk & H. R. R. Co. Cotlieal I'. Cotheal Cottman v. Grace Cotton V. Gillard Couch man r. Sillar Couldery v. Bartrum County of Allegheny v. Cleveland Couron v. Couron Courtright v. Courtright Cousen v. Cousen Covell V. Covell i\ Heyman Cowell V. Gatcombe Cowen V. Hulton PAGE 530 208 300 534 584 587 64 302 600 , 109 256 188 648 103 517 547 457 590 175 202 230 331 631 665 593 347 144 204 234 561 316 53 644 646 551 211 460 493 221 393 633 292 295 177 253 436 21 75 300 665 328 596 635 547 317 565 381 630 239 185 173 103 663 644 TABLE OF CASES. XXVll PAGE PAGE Cowles I". Cromwell 407 Cunningham v. Pell 412 Cowper V. Mantell 622 Cunninghams v. Cunninghams 155 Cox V. Cox 189 502 Curran v. Burdsall 529 Coxhead r. Mullis 296 V. Craig 529 Coyle V. McNabb 477 V. Merchants' Mfg. Co. 331 Crabb v. Crabb 188 r. State of Arkansas 412 Craft V. United States 138 Curtin v. Patten 292 Cragie v. Hadley 457 Curtis, Ex parte 102 Craig V. Board of Med. Examiners 129 Curtis I'. Curtis 168, 175 186 V. Leslie 133 V. Hubbard 25 V. Van Bebber 290 294 V. Kiley 339 Craigs, Tlie 480 V. Leavitt 36, 367 384 Cranch v. White 346 Curtis's Case 300 Crandall v. Piano Mfg. Co. 529 Cussons V. Skinner 327 Crane v. Price 508 513 Cuthbert v. Purrier 655 Cranmer, Ex parte 306 Crapo V. Kelly 254 581 Crapster v. Griffith 460 Dabbs V. State 434 Crawford v. Crawford 163 DaCosta. Matter of 97 y. The Wm. Penn 138 Dain v. WycofE 249 322 Crawshay v. Thompson 550 Daland v. Williams 618 Creevy v. Breedlove 441 Dallow, In the Goods of 598 Cregin v. Brooklyn Crosstown Ry. Dalryraple v. Dalrymple 153, 154 158 Co. 251 Dalton I'. Angus 339 Crewe v. Crewe 169 V. Gib 288 Crickett v. Dolby 654 656 Daly V. D. W. & W. Ry. Co 251 Crispin v. Babbitt 333 V. Palmer 497 Crofts V. Waterhouse 341 V. Webster 497 CroU v. Edge 517 Dalzell V. Dueber Mfg. Co. 608, 526 527 Crombie v. McGrath 315 Dammert v. Osborn 643 Cronin v. People 366 433 Danforth v. Woods 221 Crook V. Hill 263 264 Dangars v. Rivaz 388 Cropsey v. Ogden 178 Dann, Matter of 58 I'. Sweeny 348 Danville v. Amoskeag Mfg. Co. 295 Crosby v. Hanover 430 Darby v. Ousely 81 Cross V. Carstens 564 Darcy v. Allin 505 V. Cross 173 183 Dare v. Boylston 530 V. Sprigg 626 Darling v. Berry 572 V. United States Trust Co. 643 Darlington v. United States 429 Crossdail v. Phillips 651 Darrigan v. N. Y. & N. E. R R. Co. 333 Crossley v. Dixon 528 Dartmouth College v. Woodward 69, 352, Crowell V. Jackson 393 354 399 Crowninshield v. Crowninshield 584 Dash V. Van Kleeck 36 Cruce V. Cruce 664 Davey v. Ward 2.36 Cruikshank v. Gordon 92 Davidson, Ex parte 500 V. Home for the Friendless 631 Davidson v. State 435 Cruin v. Bliss 238 V. Tulloch 392 Crumb, Ex parte 276 Davila v. Davila 642 Crutcher v. Kentucky 4.36 Davis, In re 576 Cubley v. Cubley 175 Davis r. Beason 56 Cubreth, Ex parte 109 V. Coburn 321 Cuckson V. Stones 825 V. Davis 88, 154 245 Cullen V. Thomson's Trustees 346 392 V. Fredericks 509 515 Cumber v. Wane 566 V. Gemmell 397 Cumines v. Supervisors of Jefferson 38 V. Goodenow 348 Cuming v. B. C. R. R. Co. 2.50 V. Jackson 618 V. Hill 315 V. Krum 487 Cummings i\ Gaun 475 — — V. Packard 87 V. Perham 452 V. Railroad Co. 577 V. The State of Missouri 53 V. Standish 227 Cummins v. Des Moines & St. Louis Davison v. Rake 656 Ry. Co. 428 Dawes v. Howard 235 Cumner v. Milton 2.55 Dawson v. Clark 638 Cunliffe v. Cunliffe 610 V. Dawson 256 Cunningham v. Burdell 157 V. Helmes 290 V. Massena Springs Co. 359 u. Jay 244 280 XXVlll TABLE OF CASES. Day V. Everett V. Putnam Ins. Co. Dean i-. Peel Dean, &c. of Femes, Case ot Deanesville Cemetery Assoc, Mat ter of Dearden r. Townsend Deare v. Soutten Debeiiliam v. Mellon De Brimont v. Penniman Debuly v. Eckett De Francesco r. Barnum Degg V. Midland R. K. Co Degnan v. Degnan De Ilaber v. Queen of Portugal De Haber and Queen of Portugal, ^Matter of De Haven v. Williams De Kuyper v. Witteman Delafield v. Parish l: State of Illinois De Lancey v. McKeen Delaney v. Van Aulen De Llamosas v. De Llamosas De Manneville i-. De Manneville Deniarest v. Wynkoop Denielt, In re Deniilt v. Leonard Dempsay v. Lawson Denipsey v. Tylee Den u. Johnson Denison v. Denison Dennis v. Clark Dennison v. Page Dent V. Dent Denton, Matter of Denyssen v. Mostert De Peyster v. Michael Derisley v. Custance De Roo 1-. Foster Derry v. Peek De Ruyter v. The Trustees of St Peter's Church Desdoity, Ex parte Desmare v. United States Detroit v. Corey Devanbagh r. Devanbagh De Vese v. Pontet Devlin's Case De Wahl r. Braune Dewov V. Toledo, etc. Ry. Co. De Witt V. Elmira, &c. Mfg. Co. V. Hastings Dexter v. Spear Dick V. Struthers Dickenson r. Dickenson Dickerson v. Brovpn Dickeson v. Hilliard Dickinson v. Codwise V. Dickinson V. North Eastern Ry, Co. V. Stidolph Dicks r. Yates Dierker v. Hess Diez, Matter of Dill V. Bowen PAGE 319 347 249 361 426 366 201, 202 200 234 617 288, 344 335, 349 155 Dillingham v. Smith Dillon V. Mount Cashel Dimock v. Revere Copper Co. Di Savini v. Lousada Ditcham v. Worrall Diversby v. Johnson Dixon V. Fawcus V. Samson D. L. & W. R. R. Co. V. East Orange Dobbins v. State Dobree v. Napier Dobson V. Dornau V. Hartford Carpet Co. Dodd I'. Focht Dodge V. Woolsey Doe V. Barford 379 1 V. Doe 662 V. Fleming 552 V. Harris 584 V. Hiscocks 377 V. Hubbard 58 V. Lancashire 610 V. Manifold 166 V. Needs 242 V. Palmer 220 V. Perkes 309 V. Roe 309 Doglioni v. Crispin 594 Doker v. Hasler 210 Dole V. Olmstead 584 Doles r. The State 154 Dollard v. Roberts 285, 250 Dolphin v. Robins 261 Dominick v. Michael 168, 172 Donaldson v. Beckett 614 Donn, In re 597 Donnell v. Mississippi 440 Donnelley v. Ivers 299 Donnelly v. Corbett 287 V. Decker 393, 394 V. Donnelly Donovan v. Needham 376 Doran u. Simpson 364 Dorland i'. Patterson 138 Dorman v. State 338 Dormer's Case 147 Dorrity v. Rapp 625 Dorr's Estate, Re 98 Dorsey, &c. Rake Co. v. Bradley 210 Mfg. Co. 359 Doty v. Postal 534 Dougan's Case 355 Doughty v. Penobscot Log Co. 87 Douglas v. Cruger 539 V. Douglas 161 Dow V. Beidleman 154 V. Eyster 88 Dowd V. Hurley 221 Dovifley v. Winfield 188 Downs v. Allen 263 Doyle, Matter of 588 Doyle v. Blake 498, 502, 546 v. Continental Ins. Co. 247 V. Spaulding 586, 591, 597 Drake v. Drake 294 17. Mitchell FAOB 487 273 575 280 296 487 551 625 435 65 346 520 540 249 411 595 189 156 592 607 607 595 590 606 593 592 225 587, 643 231 486 66 250 230 38 37 454 130 500 578 433 172 655 665 81 433 271 338 259 527 227 403 332 223 38, 279 76 202 150 655 150 263 663 353, 383 509 604 561 TABLE OF CASES. XXIX PAOE Drehman v. Stifle 53 Drew V. Drew 188 V. Peck well 320 Dreyfus v. Schneider 532 Drinkwater v. Falconer 620 DriscoU V. West Bradley &. C. M. Co. 409 Drummond v. Venable 613 Drury v. Ewing 497 Dryden v. Swinburne 127, 128 Dube V. Lewiston 333 Duberley v. Day 193 Du Boulay v. Du Boulay 545 Duchess of Hamilton v. Incledon 658 Dudley v. Collier 382 V. iMayhew 37, 534 v. Parker 228 Duffies V Duffies 225 Duffy V- Reynolds 539 -■ The People 60 Dufour V. Pereira 597 Duignan v. Croonie 649 Duins V. Donovan 159 Duke V. Markham 364 Duke of Buccleuch v. Metropolitan Bd. of Works 428 Duke of Norfolk's Case 467 Duncan v. Cannan 223 V. Dixon 293 V. Duncan 152 V. Findlater 343 V. Watts 617 Duncomb v. Tickridge 289 Dunn, In re 576 Dunston v. Imp. Gas Co. 365 Dunwick, Bailiffs, &c. of, v. Sterry 477, 478 Dupre, Ex'r of, v. Boulard 149 Durant i; Durant 186 Durfee v. Jones 475 Durgin v. Ireland 566 Durham, Earl of, v. Wharton 624 Durrant v. Friend 621 Duryea v. Bliven 217 Dutton V. Marsh 392 Dwinelle v. N. Y. Cent., &c. Ry. Co. 3.36 Dyer, Matter of 275 Dyer v. Brannock 154 V. Ervinsr 593 Dyke v. Walford Dynen v. Leach 445, 558 330 Eachus V. Broomall 523 Eadie v. Slimmon 212 Eagleton Mfg. Co. v. West, Bradley, &c. Co. 513 Eames, Ex parte 568 Earl of Durham v. Wharton 624 Earl of Glengal v. Barnard 626 Earl of Ilchester, Ex parte 594 Earl of Lindsey v. Gt. Northern Ry. Co. 404 Earl of Milltown v. Trench 655 Earle v. Sawyer 620 Earp V. Faulkner 453 Earp's Appeal 618 PAGE Easley v. Craddock 320 East V. East 661 East India Co. v Skinner 558 East Tenn., &c. Ry. Co. v. De Armond 332 East Tenn. & W. N. C. R. R. Co. v. Collins 333 Eastern Counties Ry. Co. v. Broom 340, 368 Eaton V. D L. & W. R R. Co. 342 V. Hill 302 V. Munroe 484 V. The B C. & M. R. R Co. 428 V. Western 317 Ebaugh V. German Ref. Ch. 364 Ebbetts, Ex parte 292 E. B. W. & M Co., Matter of 427 Eckstein v. Frank 287 Eddels V. Johnson 653 Edelsten v. Edelsten 551 Edge, In the Goods of 699 Edgerly v Shaw 293 Edgington v Fitzmaurice 393 Edwards v. Davis 256 V. Edwards 166 — — V. Elliott 50 V. Freeman 639 V. Midland Ry. Co. 340, 359 Egbert v. Lippmann 511 Ehret v. Pierce 498, 504 Ehrman v. Teutonia Ins. Co. 379 Eilenbecker i- Plymouth County 432 Eisenlord v. Clum 156 Ela V Brand 267 Elderton, In re 243 V. Em mens 328 Eleanor, The 479 Electoral Coll. of South Carolina 101 Electric Gas Lighting Co. v. Boston Electric Co. 523 Eliott V. Sparrell 664 Elizabeth v. Pavement Co 5-39 Elk V. Wilkins 312 Elkins V Camden 359 Elkinton v. Brick 589 Ellen V. Topp 317 Ellicott V. Peterson 289 Elliot i: Davenport 626 Elliott, In re 6.34 Elliott V. Collier 195 ('. Hayden 561 V. Lambert 244 V. Lewis 244 V. Smith 634 i\ Turner 616 c. Wohlfrom 184 Ellis r. Ellis 168 V. Sheffield Gas Co. 337 Elmore v. Fitzpatrick 482 Elmslie v. M'Aulay 665 Elmwood, Township of v. Marcy 23 Elwell V. Martin 302 Elwood V. Klock 209 Ely V. Holton 40 Emack v. Kane 82 Emerson v Davies 497 V. Hogg 520 XXX TABLE OF CASES. Day and Emerson v. Spicer Emery v. Berry V. Darling . V. Emery Emery's Case Emmens v. Pottle Emmet v. Norton Emperor of Austria Kossuth , Empire Assurance Corp., in \e Employers' Ass. Corp.. Employers Ins. Co. Emulous, The English V. Newell . V. State Enohin v. Wylie Ensign, Estate of Enterprise Mfg. Co. v. Sargent Enticknap v. Rice Era Assurance Society, in re PAGE 271,272 644 596 203 62 81 204 377 403 544 137 662 58 600, 667 177 515 160 403 Erkenbrach u. Erkenbrach 161, 173, i^b. Eschweiler v. Stowell Esron v- Nicholas Estcourt u. Estcourt Hop Essence Co Este V. Smyth Evans v. Carrington . V. Coventry V. Eaton u. Foster . V. Smith V. Walton Evelyn, Er parte Evergreens, Matter of the Evers v. Challis Everson v. Carpenter Ewens v. Ewens Ewer V. Coxe Ewing V. Orr Ewing Excelsior Needle Co. Needle Co Eynon, In the Goi.ds of Eyre v. Shaftsbury Eyster v. Gaff PAGE 326 218 3 242 249 565 332 229 479 146 302 130 338 451 145 647 361 92 155, 265 328 397 287 545 223 178, 217, 218 397 508 71 597 344 646 40 615 293, 295 148 501 600, 668 Union 512 590 272, 274, 281 575 F. V. D. Fagan, Re Fairer v. Park Fairfield, The Fairman v. Ives V. Oakford Falk V. Schumacher Falkland Islands Co. v. Queen Faremouth v. Watson Farmers' Loan & Trust Co. v. Clowes Farmers' & Traders' Bank of Bona- parte V. Haney Farns worth v. Oliphant Farrand, Matter of Farrington v. Donohoe Farrior v. New Eng. Mort. Co. Farrow v. Wilson Farwell v. B & W. R. R. Co. V. Nillson Fawcett v. Cash Fearon v. Aylesford Feather v. The Queen Feeney, Matter of Felkner v. Scarlet Fellows V. Stevens Feltham v. England Feudal! v. Goldsmid Fenix, The Fenton v. Livingstone Ferguson v. Bobo . V. Gies V. Hubbell V. Miller Ferlat v. Gojon ^ Fernandes' Executors' Case Femes, Case of Dean, &c. of Fero V. Ruscoe Ferrie' v. Public Adm. Fewings v. Tisdal Ficklen v. Shelby Co. Taxing Dist Field, Ex parte V. De Comeari V. Field V. Peckett V. Schieifelin Filow's Case Finch V. Finch V. Marcon Findlay v. Bear Fingal v. Blake Fire Dept of N. Y. v. Chapman Fire Ins. Patrol v. Boyd Firebrace v. Firebrace Firemen's Ins. Co. v. Bay First Nat'l Bank v. Hummel First Troop Phila. Cavalry v Morns Fischer v. Blank V. Popham Fish V. Ferris Fisher (.-. Clement V. xMcGirr Fitton, In re Fitzgerald v. Chapman V. Fitzgerald V. Quann Fitzhugh V. W^ilcox Fleet ('. Perrins I Fleshward v. Jackson I Fletcher v. Fletcher V. Peck V. Rhode Island Flitcroft's Case Florsheim v. Schilling Floyd V. Calvert Flynn v. Salem Foakes v. Beer Fobes V. Shattuck Fogg V. Blair Foley V. Chicago, R I & P. R. R Co V. Mut. Life Ins Co. Folsom V. Marsh Fond du Lac County v May Fonda ;'. Van Home Foot V. Card V. Dickinson 1 129 58 533 225 627, 661 277 450 239 662 451 652 434 343 230 209 457 490 547 689 302 81 433 109 178 188 205, 206 308 195 215 190 54 433 397, 410 613 154 332 565 460 405 332 271 497, 504 514 254, 271 225 192 TABLE OF CASES. XXXI Foote V. State Forbes v. King Forbes & Judd's Case Ford V. Foster i;. Lake Shore & Mich. So. Ry L'. Munroe Fores i'. Wilson Forrest v. Forrest 166, 171, 17 V. Nelson Forster v. Forster P'orsyth, Matter of Forsyth v. Forsyth V. Hooper r. Wells Forth V. Forth Fort Smith v. Dodson Foster v. Lindsay V. Neilson V. Stewart Fowler, In re Fowler, Matter of Fowler v. Butterby V. Fowler V. Hollenbeck V. IngersoU V. Willoughby Fox V. State of Oliio Fraker v. St. Paul, M. & M. R. R. Co. Francis v. Cockrell Franciska, The Frank v. Bingham v. xMutual Life Ins. Co. Franklin v. McCorkle Frasiier v. State Frazer v. Gates, &c. Iron Works Frazier v. Penn. R R. Co. Frearson v. Loe Frederick v. Atty.-Gen'l Freeman v. Fairlie y Robinson V. Simpson Freer, In re French v. Carter V. Maguire 489, Fricke v. Hum Frierniuth v. P>iermuth Friesner v Symonds Frith, In the'Ooods of Frost V. Capel V. Denman Fruhauf v Bendheim Fry V. Fry V. State Fryer v. Morris Fuchs V. Koerner Fuller V. Bemis Fuller & Johnson Mfg. Co. i'. Bartlett Fullerton v. Jackson Fulton Bank v. N. Y. & Sharon Canal Co. Furman v. Van Sise 239, Fursaker v. Robinson Fussell V. Dowding Fust, Matter of Fynn, In re PAGE 70 G. V. G. 8(3 G. & H. Mfg. Co. V. Hall 401 Gabrielson i\ Waydell 546 Gaffney v. ColviU 329 Gahn v. Niemcewicz 250 Gale v. Village of Kalamazoo 344 Gall V. Gall 172 Gallagher v. Piper 424 V. Vought 188 Gallemore v. Gill 322 Galliano v. Lane 178 Gallwey v. Marshall 323 Galusiia v. Galusha 172 484 Galveston v. Barbona 187 Galveston, &c. Ry. Co. v. Smith 477 Gandy v. Maine Belting Co. 536 Ganse, Matter of 111 Gantert, Matter of 317 Gardner v. Atty.-Gen'l 115 V. Collins 426 V. Gardner 212 V. Hatton 185 Garland, Ex parte 53, 319 Garlick v. Strong 614 Garnett, In re 245, 610 Garnier, In re 50 Garrett, In re Garrison v. City of New York Garth v. Meyrick Garvey's Case Gassett v. Patten Gatehouse v. Gatehouse Gaters v. Madeley Gates V. Meredith Gauntlet, The Gay V. Ballou Gear v. Grosvenor Geaves v Price Gee V. Liddell v Prilchard Gelpcke v City of Dubuque Gelston v. Hoyt General Exch Bank v. Homer Genet v. Tallmadge 254, George v. Gobey George and Richard, The Georges v. Chancie Gera v. Ciantar Gerdes v. Weiser Germain v. Lake Shore & Mich. So. Ry. Co. Gerry, Matter of Gertrude, The Gervis v. Gervis Gibbs V. Harding I'. Hoefner V Queen Ins. Co. Gibson v. Bott V. Soper V. Williams V. Woodworth Giddings v Seward Gifford V. Thompson Gilbert r. Knox Gilbert Elevated Ry. Co. v. Kobbe, Matter of 42 332 339 472 457 212 249 149 520 334 519 265 662 235 627 622 514 490 522 348 262 590 654 664 216 660 435 622 328 497 527 274 368 247 264 178 307 243 PAGE 147 546 333 412 221 366 154 332 348 627 208 86 217 '253 333 510 311 654 158 23 174 622 ,659 216 , 246 310 576 559 612 55 202 188 194 93 471 289 528 594 625 490 24 562 .391 277 227 .300 215 258 348 408 619 479 6.53 217 529 378 657 294 85 534 610 618 590 ii xxxii TABLE OF CASES. Giles V. Melsom ^^q ,., Taff Vale Ry. Co. ^^^ c. Warren Gilkeson r. Gilkeson Gilkey '•• l*'>ine Gill c. Wells Gillet V. Mason V. Stanley 03 Gilley v. Gilley Gillman r Gillman Gilnian v. Gihnan i>. Lockwood , V. McArdle Gilmer v- United States Gilniore v- City of Utica Gilpin V. Gilpin Gilroy v. Stephens Gilson V. Spear Gipps V. Gipps Giraud c Hanbury Girls' Industrial Home v. Fntchey Gladney f. Murphy Gladstone v. Gladstone Glasier r Rolls Glass V. Wynn Glavin r. Rliode Island Hospital Glen Cove Mfg. Co. ,;. Ludehng Glohe Nail Co. v. Superior Nail Gloucester Ins. Co. v. Younger Glover, Ex parte Goate V. Fryer Godcharles r. Wigeman Goddard v. Grand Trunk Ry. V. O'Brien Godillot I'. Harris Goebel v. Wolf Goflft.-. Braine.rd V. Great Northern Ry. t^o. r. Kilts Goldsworthy, Re Gonsolis V. Gearhart Goodman v. Pocock Goodsell V. Myers Goodwin's Trusts, In re Goodyear v. Bishop y. Hartford Spring Axle Co. Gordon r. Hostetter V. Potter Gorham v Fillmore V. Gross . V. Ives Gorham Co. v. White Goshen i'. Kern Gosling V Roberts Gottfried v Miller Gotts V. Clark Gouband v. Wallace Gould V. Hudson Riv. R. R. Co. V. Little Rock, M. R. & T. Ry. Co. Goulder v. Goulder Gourand, Will of Grace v. Newman 491, Graff V. Bonnett V. Kinney PAGE 381 540 665 636 493 525 Graham v. Boston, &c- Ily';Co. V. Geneva, &c. Mfg. Co. V. Maxwell Gram v. The Prussia, &c. Ev. hoc. Granard, Earl of, v. Dunkin Grant v. Raymond Gravelle v. Minneapolis & St. Louis R. R. Co. Graves' Case Graves v. Graves Gray v- Cookson V- Durland V. Portland Bank V. Russell Grayburn v. Clarkson Greaves v. Gouge Green v. Burke :.:'Gt'r „, 291,294 V. Hudson Riv. R. R. Co. 250 ,. Rutherforth 387, ^8» V. State 61, 149 332 500 188 316 239 408 497 661 397 297 493 82 599 580 497 433 23 648 584 210 484 628 593 259 604 161, 164, 166, 204 58 Telfair V. Tribe V. Van Buskirk Greene v. Biship V. James V. Lessee of Neal Greenside v. Benson Greenwood v. Greenwood Gregory v. Pierce V. Stryker Greville v. Browne V. Tylee Grey's Trusts, In re Greyston v. Clark Griffin v. Griffin . V. Wilcox Griffith V. Railroad V. Wells Griffiths V Dudley Gidlow Lewis London, &c. Docks Co. Wolfram Griggs V- State Grimes, In re Grinnell i'. Wells Griswold v. Butler V. Waddington Grocers' Bank v. Murphy Grove, In re Grover v. Wakeman Guardians of the Poor v. Nathans Guckenheimer v. Angevine Guenther v. Birkicht Guernsey v- Wood Guilderland v. Knox Gunter v. Graniteville Mfg. Co. Gurly V. Gurly Gut V. State Guthrie v. Weaver Guy V. Sharp Guy Mannering, The 454 37 335 330 85 330 346 473 246 250 308 138 447 259 563 154 484 348 578 321 332 642 54 454 612 339 TAB] LE F CASES. xxxm PAGE PAGE H. V W. 217 Harmood v. Oglander 652 Hackett v. The Western Union Tel. Harrington i-. Harrington 663 Co. 337 Harris, In the Goods of 593 Hackney v. Welsh 108 Harris v. Baker 343 Haddan's Patent, In re 536 V. Currier 348 Haden v. Ivey 150 V. Davis 43 Hagaman v. Burr 566 ('. Fly 629 Hagan v. Walker 411 V. Morris 203 Hagerman v. Empire Slate Co. 379 V. Woman's Hospital 343 Hagood V. Southern 381 Harris' Settled Estates 209 Haile V. Tlie State 58 Harrisburg, The 253 Hailes v. Van Woomer 508 Harrison v. Anderston, &c. Co. 515 Hains v. Jeffell 263 ('. Asher 621 Hair v. Hair 230 V. Bush 88 Haire v. State of Nebraska 55 V. Grady 203 V. Wilson 81 V. Harrison 170 Hakewill, In re 241 V. Mexican Ry. Co. 410 Hale V. Everett 56 Hart V. Deamer 309 y Lawrence 4.30 ,559 V. N. Y. Dry Dock Co. 382 Hall V. Barrows 542, 545 , 549 V. Prater 288 V. De Cuir 24 V. Ten Eyck 457, 487 V. Gardner 319 ,321 V. United States 138 V. Germain 227 V. Wall 81 V. Hall 169 ,186 Hartman's Appeal 347 V. Hollander 250 Hartung v. The People 41,54 V. Jones 293 Harvard Unitarian Soc. v Tufts 609 V. Smith 343 Harvey v. Briggs 294 Hallinger v. Davis 46, 76 V. Farnie 180, 181 Ha Hi well v. Counsell 318 Harwood v. Baker 584 Halloran v. The State 66 Hassell v. Hawkins 625 Halstead y Mayor, &c. of N. Y. 384 Hatch V. Adams 526 Hamaker i-. Blanchard 475 V. Coddington 561 Hainbly v Trott 651 V. Hall 526 Hamilton, Matter of 154 V. Moffitt 522 Hamilton v. Davis 477 Hatfield v. Sneden 197 V. Eno 86 Hatt V. Nay 334 0. Kingsbury 527 Hauser v. Sain 348 V Lomax 296 Hawenstein v. Lynham 11, 128 V. Rollins 528 Hawkes v. Barrett 666 Hamilton, Duchess of, v Incledon 658 Hawkins v. Hawkins 170 Hammersmith Skating Co. v. Dublin Hawkins' Trusts, Re 616 Co. 82 Hawksworth v. Hawksworth 245 Hammond v. Hastings 409 Hawley, Matter of 281 Hampden's Case 274 Hawley u. Bradford 221 Hanbury v. Hanbury 163 V. James 466 V. Spooner 616 Hay V. Cohoes Co. 338 Hancock v Peaty 143 Haycraft v. United States 470 V. Yaden 74 Hayes v Ball 84, 85 Handley v Handley 174 V. Hayes 609 Hands v. Slaney 288 V. Missouri 74 Handy v. Brown 321 v. Oshkosh 367 V. Handy 167 V. People 154 Hanks, Matter of 307 Haynes v. Mico 625 Hannahs v. Hannahs 664 V. Nowlin 225 Hannon v. Agnew 343 Hays n. Sulsor 509 Hanselt v. Vilraar 563 Haywood v. Foster 93 Hapgood V. Hewitt 508 Hazeltine v. Miss. Val. Fire Ins, Co. 379 Harbeck v. Harbeck 155 Head v Head 173 Hard v. Ashley 666 Head-Money Cases 111 Hardware Co. v. Implement Co. 564 Hearle v. Greenbank 207 Hare v. Mclntire 346 Heath v. Chapman 634 Harlow v. Putnam 528 V. Mahoney 287 Harman v. United States 57 V. Perry 656 Harmer v. Cornelius 327 V. West 294 V. Killing 292 Hebblethwaite v. Hepworth 152 Harmon v. Struthers 511 Hebe, The 480 xxxiv TABLE OF CASES. 291, 557 629 Hedges v. Aid worth Heenuans r. Robertson Hefel V. Whitely Land Co. Hegan i;. Eiglith Ave. R. R- Co. Heine v. Appleton Heinz v. Luiz Helbert v. Banner , ^ , ,. Heller v. Mayor, &c. of Sedalia Helps V- Clayton Hemming v. Gurrey Henderson v. Broomhead . V. Maxwell y. N. Y. Cent. R. R. Co. Hendricks v. Montagu Hennequin v. Clews Henning v. Planters Ins. Co. Henrick & Maria, The Henry, Ex parte Henry v. Brady V. Gt. Northern Ry. Co V. Root Hensloe's Case Hensman v. Fryer Henty v. Henty Henwood v. Harrison Hereford v. Police Jury Herendeen i'. De Witt Hermann Loog v Bean Heme v Meyrick Heme Bay Waterworks Co., In re Harrington y. Village of Lansingburgh Hershey v. Clark Hertford v Lowther Hervey v. R. I. Locomotive Works Hesdra, Matter of Heseltine v Heseltine Hewett V Norton Hewitt, Will of Hewitt V- Prime V. Warren Heyward v. Mayor of New York Hibernia Nat. Bank v Lacombe Hicks V. Gregory Hier v. Abrahams Higgins V. Keuffel r. The Mo, Pac, Ry. Co. Higgins's Trusts, Re Higgs V. Goodwin Hiies V. Fisher Hill V. Arbon V. Berry V. Chapman V. Curtis V. Day V. Evans i). Gomme I'. Harding u. Hibbet . V. Hill y Nelms V. Walker Hiller v Burlington, &c. Ry. Co. Hilliard v. Hamhridge Hillman v. Stephens Hills u. Liverpool United Gas-Light Co PAGE G26 652 500 34 494 551 402 367 288 612 89 500 428 543 572 379 471 508 332 410 295 638 653 188 89 441 256 83 652 402 338 597 621 5bO 654 622 576 587 248 287 405 580 264 546 497 329 651 533 197 288 227 654 644 308 518 244 597 155 246 290 648 379 193 234 590 245, Hills V. London Gas-Light Co Hinckley v- Emerson Hindley v. Westmeath Hindmarsh v. Charlton Hinds V. Harbon Hinely v. Margaritz Hines v. Howes Hinks V. Safety Lighting Co. Hinson v- Williamson Ho Ah Kow V. Nunan Hoar V. Hoar Hoard v. Peck Hobbie y, Jennison V. Smith 515 Hobbit V. London & N. W. Ry. Co. Hoblvn V. The King Hobson V. Blackburn Hodge V. The Queen Hodgens v Hodgens Hodgson y. Scarlett Hoey v. Dublin & B. J, Ry. Co. Hofflieins y. Russell Hoffman v. State Hogg y. Emerson Holdsworth v. Davenport Hole y. Bradbury Holland v. Alcock V. Clark HoUiday v. Rheem Hollingsworth v Duane HoUis V. Drew Theol. Seminary 375, Hollister v. Benedict, &c, Mfg. Co Holmes v. Blogg y. Clark V. Gilman 2ll> y. Jennison y. Jones y. Mather V. N. E. R. R. Co. y. Onion y. Willard 384, y Worthington Holt, In re Holt V Bancroft y. Scholefield Holt, Sir Thomas, v. Astgrigg Holyoke v Haskins Home Nat Bank y. Sanchez Homer v. Thwing Honduras, Republic of, v. Soto Hood V. Haden y. Hood Hook y. Donaldson Hooke y. Hooke Hookham v. Pottage Hooks V. Perkins Hope, Matter of Hope y. Brewer y. Carnegie y. Hope Hopkins v Carpenter, In re Hopkins' Trusts, In re Hopkinson v. Burghley Hopper V. Hopper 5.33 Hopt V. Utah 547, 549, 197, 225, PAGE 616 452 217 591 346 292 321 519 663 70 169 226 526 ,534 337 365 597 43 237 89 334 522 65 520 635 502 635 651 508 82 238, 632 514 295 330 457 103 92 341 349 337 391 330 243 564 84 84 310 564 302 3 609 177 291 160 551 320 108 643 665 243 570 619 490 54 TABLE OF CASES. XXXV PAGE PAGE Horn Silver Mining Co. v. New York Hussey v. Coger 333 State 129 V. Ryan 250 Home V. Chatham 526 Hutcheson v. Peck 225 Horner v. The Collector 32 Hutchins, Ex parte 495 Horton v- Cantwell 604 Hutchins v. Kimmell 154 V. Mabon 513 Hutchinson r. Fuller 610 Horvvood v. Heffer 203 V. Tiie York, &c. Ry. Co. 331 Hospes V. Northwestern Car Mfg. Co. 405 Huth V. Carondelet Marine Ry. C o. 290 Hotchkiss V. Oliphant 93 Hutton V. Scarborough Hotel Co. 410 Hotten V. Arthur 491 ,503 Hyatt V. Allen 410 Houlding v. Cross 622 V. Ingalls 528, 529 535 Houldsworth v. City of Glasgow Hyde v. Cookson 485 Bank 395 V. Hyde 159 Houliston V. Smyth 203 Hylton r. Brown 53 House, Matter of 183 Hynes, Matter of 277 Househill Coal, &c. Co. v. Neilson 510 V. McDermott 154 155 Houstoun, Matter of 310 Howard v. Daly 328 V Digby 219 Idaho, The 487 V Gunn 490 Ilil V. R. R. Co. 253 Howarth, In re 236 Ihley V. Padgett 291 Howden, In the Goods of 588 Ilchester, Earl of. Ex parte 594 Howe V. Earl of Dartmouth 617 lUingworth v. Burley 200 Howe Machine Co v. Cage 436 V. Spaulding 527 Howell V City of Buffalo 426 Illinois, State of, v Delafield 377 V. Howell 93 Illinois L. & L. Co. v. Bonner 261 Howry v. Calloway 322 Ilott V. Genge 589 Hoxie V. Lincoln 295 Imhoff V. Witmer 308 Hoye V. Swan 429 Imperial Anglo-German Bank, Re 402 Hoyt V. Hilton 274 Imperial Hyd. Hot. Co. v. Hampson 397 V. Hoyt 629 Imperial Mercantile Assoc, In re 402 V. Mackenzie 491 Incorp. Church, &c. Soc v. Coles 635 Hubbard v. Weare 393 Ind. B. & \V. R. R. Co. v. Dailey 334 Huber v. Reily 70 Ind. Dist. of Boyer v. King 457 Hudnut V Bullock 321 Ingalls V. Tice 630 Hudson V. Hudson 186 Inglesant v. Inglesant 589 V. Ocean Steamship Co. 336 Inglis V. Trustees of Sailors' Snug Hudson V. Osborne 549 Harbor 121 631 Hudson Real Estate Co. v. Tower 406 Inman v Foster 87. 92 Huffman v Rout 321 Innes i'. Mitchell 622 Hughes V. Empson 661 Insurance Co. v. Brame 253 V. Humphreys 317 V. Davis 138 1.39 V. Jones 309 V. Francis 377 V. Percival 339 V. Morse 353 Hume V. Burton 305 V. " The C. D. Jr." 377 Humphrey v. Douglass 302 Ireland v. McGarvish 85 Humphreys v. Humphreys 621 Irons V. Field 85 V. Mears 343 Irvine i-. Irvine 290 Hung Hang, Ex parte 99 Irwin V. Dearman 344 Hunt, Ex parte 256 Isaacs V Daly V. Third Ave. R. R. Co. 498 Hunt, Matter of 589 336 Hunt, Re 246 Isaacsohn v. Isaacsohn 160 Hunt V Bates 561 Isham V. Buckingham 407 I'. Bennett 81 Isle Royale Mining Co. v Hertin 484 V. Cary 391 Ives V Canby 610 V. De Blaquiere 202 ,204 Ivins V Norcross 319 V, Good lake 81 Ivory, In re 647 V. Hoover 535 V. Hunt 182 ,217 ''. Johnson 210 Jack V. Martin 116 c. Peake 296 Jackson, Ex parte 118 Huntley v. Luscombe 96 Jackson v. Beach 1.32 Hurlbut V. Carter 384 V. Brookins 227 228 Hurst V. Beach 612 V. Cairns 208 Hurtado v. California 73 V. Carpenter 290 Huss, Matter of 643 I' Combs 271 XX.Wl TABLE OF CASES. PAGE Jackson v. Edwards 208 V. Gilclirist 38, 39 V. Green 134 . V. Hobliouse 222 ,,. Jackson 134, 589, 591 V. Lunn 132 I- Mayo 293 V. State 150 V. Stevens 208, 210 V. Turquand 392 V. Vandcrlieyden 210 (;. White 121 V Wriglit 121 Jacob's Will, In re 654 Jacobs, Matter of 74, 437, 438 Jacomb v. Ilarwood 647 Jacques v. Chambers 655 Jaehne v. People of New York 42, 55 Jagger Iron Co. v. Walker 566 James, In the Goods of 598 James v. James 548 V. LeRoy 321 V. Woodruff 412 Janaway, In the Goods of 589 Janes v. Cleghorn 267 Jaques v. Meth. Epis. Church 220 Jarrold v. Houlston 499, 502, 503 Jaynes v. Jaynes 225 Jefferies v. Michell 625 Jefferys v. Boosey 502 Jeffreys v. Vantiswarts 281 Jencks v. Langdon Mills 508, 527, 530 Jenkins v. Harvey 354 V Jones 622 V. Steanka 487 V. The State 67 V. Walker 520 Jenner v. Ffinch 590 V. Morris 201 V. Walker 288 Jennings v. Brown 264 V Gt. Northern Ry. Co. 366 Jennison v. Citizens' Savings Bank 359 V. Hapgood 664 Jewett V. Dringer 487 Jewis V Lawrence 616 Jewsbury v. Newbold 201 Jillard v Edgar 630 Job V. Job 663 John Shillito Co. v. McConnell 564 Jolmson V. Boyfield 289 V. Bradstreet Co. 88 I'. Brady 627 V. Dicken 84 V. Dodd 322 y. Goss 609,611 V. Johnson 167, 168 V. Meeker 328 V. Moon (357 V. Newton 662 • V. Prendergast 664 V. Silsbee 247 V. Thirteen Bales, &c. 137 Johnston v. Orr Ewing 552 V. Parker 159 V. Pittsburgh & W. R. R. Co. 332 PAGB Johnston v. Sumner 203 Johnstone v. Beattie 242, 255 280, 281 V. Hamilton 635 Jollet V. Deponthiea 579 JoUie V. Jaques 497 501 Jolly V. Rees 200 Jolly's Adm'x v. City of Hawesville 367 Jones V. Butler 298 V. Foxall 664 V. Green 622 V. Habersham 375 V. Jones 150, 184, 185 V. Leonard 107 V. People 433 V. Reynolds 526 V. State 66 V. Terra Haute R. R. Co. 410 V. Walker 559 r Williams 635 Jordan, In the Goods of 600 Jordan v. Ala. Gt. Southern Ry. Co. 369 V. O'Connor 83 V- Overseers of Dayton 525 V. Wright 235 Joyce V. Chillicothe Foundry, &c. Works 515 Judkins v. Walker 295 Judkins' Trusts, In re 286 Judson V. Cope 509 Jupp's Case 541 Justices V. Murray 51 Kain v. Larkin 247 Kaine, Ex parte 99 Kaine, In re 99 Kaiser v. Flaccus 334 V. Kaiser 148 Karap V. Kamp 165 , 173 Kane, Matter of 236 Kane v. Mulvany 88 V. New York El. Ry. Co. 428 V. Northern Cent. R. R. Co 335 Kansas v. Zeibold 432 Karberg's Case 394 Kaufman i'. Schoeffel 214 Kavanagh, Matter of 375 Kay V. Marshall 519 V. de Pienne 210 V. Smith 293 Kearney v. Missionary See. 238 Kearny, Ex parte 100 Keats V. Keats 168 Keech v. Keech 188 Keene v. Kimball 489 V. Wheatley 488 Kelley v. Davis 235 V. Drury 577 Kellinger v. Roe 276 Kellum, Matter of 691 Kelly V. Byles 498 , 502 V. Crapo 254 , 581 V. Harrison 121 V. Hutton 503 V. Kelly 185 V. Mayor, &c. of N. Y. 837 TABLE OF CASES. xxxvn Kelly V. Morris I'. Owen V. Partington V. Porter V. Sprout V. United States Kemp, In re Kendall v. Stone V. United States V. Wiiisor Kennard v. Louisiana Kennedy v. Abbott V. Gifford V. Saunders Kensham Blue Lias Co. v. Baker Kent V. Pickering V. Quicksilver Mining Co. PAGE 492 128 86 5.30 320 64 58 94 68 534 74 631 84 227 382 665 359, 410 105, 107 250 561 112 lO'J 563 329 Kentucky v. Dennison Kenyon v. The People V. Woodruff Ker V. Illinois I'. The People Kerchies v. Schloss Kern v. DeCastro & D. Sugar Ref Co Kernochan, Matter of, 618, 664 Kerr, In re 262 V. Douglierty 375 V. Kerr 176, 184 Kettletas v. Gardner 275 Keys V. Norris 308 Keystone Bridge Co. v. Newberry 332 Kidd V. Pearson 432 Kies V. Erie City 366 Kilbee v. Sneyd 662 Kilgore v Rich 289 Kimmish v. Ball 129 Kincheloe v. Merriman 202 King, In re 287 King V. Berry 689 V. Cunningham 38 V. Delavel 241 V. DeManneville 241 V Gallun 514 V. George 612 V. Greenhill 241 V Gwinear 319 V Harris 361 V. Hoare 561 c. Inhab. of Woodlawn 38 V Johnson 240 V. Kline 452 i;. Luffe 173, 260 V. Lyme Regis 362 V. Mead 217 V. Metcalf 519 V. Smith 240 i;. Soper 263 V. Sourton 174 V Spurr 342 V. Talbot 660 V. Ward 98 V. Watson 82 V. Westwood 365 V. Wheeler 519 V. Winton 96 PAGE King of Spain v. Hullett 377 Kingsbury's Case 107 Kingwood y Bethlehem 319 Kimlock v. Secretary 470 Kinnier v. Kinnier 181 Kinney v. Commonwealth 149 Kirby ;;. Kirby 166 V. Potter 611 Kirk V. Atlantic, &c. R. R. Co. 332 I' Nowill 365 Kirkman c. Booth 659 Kitchen, Re 622 Kitchen v Lee 294 Kittle V. Merriam 520 Klein v. Wolfsohn 144 Knapp V. Morss 513 V. Roche 561 KnatchbuU v Hallett 457 Knee, Ex parte 262 Knickerbocker v. De Freest 299 Knight V. Knight 621 c. Wilcox 249 Knobloch v. C. M. & St. P. R. R. Co. 434 Knott V. Cottee 661 Knotts V. Bailey 628 Knowles v. McCamby 209 Knowlton v. Cong. &Emp. Spring Co. 22 Knox V. Bushell 201 V. Hay man 392 Knye v. Moore 264 Koehler v Sanders 544 Kohl r. United States 429 Kohn V. Fandel 326 Kohne's Estate 285 Kring v. Missouri 54 Kunnen v. Zurline 597 Kunzler v. Kohaus 568 Kynnaird v. Leslie 134, 637 L. V. L. 147 Labouchere v. Dawson 549 Lacon v. Lacon 623 Lady Thynne v. Earl of Glengall 624, 626 La Farge v. Exchange Fire Ins Co. 3.50 La Fayette Ins. Co. r. French 352, 379 Lahr v Met. El. Rv. Co. 428 Lake Ontario & C. R. R. Co. v. Mason 406 Lake Ontario Shore Ry. Co. v. Curtiss 406 Lake Shore Banking Co. v. Fuller 564 Lake Shore & M. S. R. R. Co. v. Stupak 334 Lake View & Rose Hill Cera. Co. 432 Lamar y. Browne 4,0 V. Micou 255, 279, 660, GCl Lamb v Evans 497 I'. Lamb 382 Lamkin v. Knapp 1"7 L'Amoureux v. Crosby 308 Lancefield v. Iggulden 653 Land Credit Co., &c. v. Fermoy 391, 396 Lander v. Lander 170, 171 Lane v The People 473 Lane & Bodley Co v. Locke 508 Langdale v. Esmonde 609 XXXVlll TABLE OF CASES. Mar- Langdon i'. Astor's Ex'rs Lantie, Ex I'drte Langt'ord v. Gascoyne Laiisdowne, Marquis of, cliioness of Laiisdowiie t Lantz V. Frey ^ Lapsley r. Grierson ^ Larivii-re i'. Morgan ^ Larking, Er jiarle ^ Larson v. Chase ^ Latiirop r. Union Tac. Ry Co. i Laugliman's Appeal , „ ,, Laugiiton c. Bishop of Sodor & Man Laundy r. Williams j Law, In tiie Goods of ; Law V. Wilkin Lawrence v. Allen V. Dana 49(, i r. Lawrence V. Spence ■ V. The Mayor Lawton v. Steele 74, ^ Lawyer v. Fritcher • Lead Co. v. Richardson Leader v. Purday Learoyd v. Brook Leask v. Scott Leather Cloth Co. v. Am. Leather Cloth Co. 542, 543, 547, Leavenworth, County of, v. Barnes Lebanon v Griffin LeBreton v Miles Le Caux i'. Eden Lee V. Cohick V. Gibbings V Haley 547, V. Lee Leeds Estate, &c. Co. v. Shepherd Leefe, Matter of Lefevro i: Lefevre Lefiingwill v. Warren Leggett r Dubois V. Hunter V. Perkins V. Standard Oil Co. Lehigh R. R Co v. Hall Lehman v. Kelly Leidig v. Coover's Ex'r Leigl), In re Leisy v. Hardin 129, Lemage v. Goodban Lemmon v. The People Lent r. Howard Lenzberg's Policy Leonard v. Allen V Leonard r. Wilkins Lepanto, The Leslie v. Leslie 165, 166, Levy V. Walker Lewis, In the Goods of Lewis V. Chapman V. Courtright V. Darling V. Lewis 165 ■ V. Matthews Lewis V. Wildman Leyland v Stewart Licensed Victuallers' Newspaper Co. V. Bingham Life & Fire Ins. Co. v. Mechanic Fire Ins. Co. Ligiitby V Clouston Like V. McKinstry Lincoln v Quynn V. Wright Lindgren v Lindgren Lindo V. Rodney Lindvall v. Woods Lindzey v. State Lingen v. Linpen Linkauf v Lombard Lipe V. Eisenlerd Litowitch V. Litowitch Little V. Hall Littledale v. Bickersteth Little Rock v Barton Livermore r. White Liverpool, &c. Assoc, v. Smith Livietta, The Liviiigston I". Ackeston V. Bishop V. Livingston V. Moore V. Tanner IV Williams Lloyd, In re Loan V. Etzel Lockett V. Hill Lockhart v. Horn Loffus V. Maw PAGE 320 502 498 384 317 93,94 424 6G3 607 472 333 55 259 859 249 182 488 655 435 474 83 480 348 561 216 50 36 150 263 227 577 138 596, 597 552 160 397 132 375 23 133 29 223 514 156 487 347 281 433 594 314 664 566 85 308 452 479 ,656 550 598 81 484 629 ,590 617 Lolley's Case 180, 181 Lonas v. State 150 London Chartered Bank of Australia V. Lempriere Long )'. Moon Longhead v The D B. Church Long Island R. R. Co., Matter of Loom Co. r. Higgins Loonier i\ Wheelwright Lopez V. Burslem Lorant v. Scadding Lord V. Poor Lord Chichester v. Coventry 62 Lord St. John i' Lady St. John Lord Vane's Case Lord Walpole r. Lord Orford Lorman r. Clark Lorrillard v. Town of Monroe Lot of Whalebone, A Loud I'. Loud Loughlin r. The State Love r. Love Loveden v. Loveden Lovejoy v. Murray Lovell V. Quitman Lovell Mfg Co. V. Cary Lovering r. Lovering Lovet V Price Lovett, In re Lovett V. German Ref. Ch. 224 337 631 363, 364, 365 520 221 43 361 247 624 ■ 190 229 597 68 352 479 184 332, 333 183 164 561 593 513 170 348 644 364 TABLE OF CASES. XXXIX Low V. Routledge 5U0 V. Ward 496 Lowe V. Jolliffe 591 V. Sinklear 295 Lowell V. Lewis 507 Lowenstein v. Salinger 214 Lowrie v. Plitt 454 Lowry v. Fulton 662 Luby V. Cox 3iy Lucas V. Mason 325 L'. Williams 658 V. Williams (No. 2) 658 Luce V. Dexter 561 Ludlam v. LudJam 125 Lufkin V. Mayall 295 Lumley v. Gye 344, 345 Lunay v. Vantyne 348 Lupton V. White 487 Lush V. Alburtis 197 Lutz V. Lutz 185 Luyties v. Hollender 553 Lygo V. Newbold 342 Lyle V. Clason 81 V. Elhvood 156 Lynch v. Clarke 125 V. Gov't of Paraguay 643 u. Livingston 210 Lynde v. Johnson 86 V. Lynde 166 Lyon V. Colville 612 V. Industrial School Assoc. 656 V. Lyon 183 V. Park 644 Macdonald v. Irvine 611 y. Macdonald 187 Macdougal v. Knight 88 Macdougall v. Jersey Imp. Hotel Co. 397 Machine Co. v. Gage 435 Mack V. Petter 498, 502 V. Story 424 Mackey v. Ford 89 Mackin v. United States 60 Macklin v. Richardson 489 Maclean v. Cristall 154 Macleod v. Wakley 89 Macnicliol, /n re 647 Maddox v. State 322 Madison Ave. Bap. Ch. v. Oliver St. Bap. Ch. 10, 358, 376 Magniac v. Thompson 216 Magowan v. N. Y. Belting Co. 516 Mahan, Matter of Accounts of 613 Malm V. Harwood 522 Mahon ;;. Justice 76, 109 Maine v- Grand Trunk Railway Co. 129 Maitland v. Adair 626 Malachy v. Soper 93, 94 Male V. Roberts 285 Malin v. Malin 311 Mallinson v. Mallinson 174 Mangam v. Brooklyn R. R. Co. 253 V. Peck 205 Manice ". Manice 466 Mann v. Copland 610 Mann's Case Manning v. Beck V. Cape Ann, &c. Co. V. Maiinmg V. Mitcherson V. Spooner Mansel v. Atty.-Gen'l Mansfield v. Mansfield Manville v. Belden Mining Co. Mapes V Weeks Maple & Co. v. Junior A. & N. Stores PAGE 300 564 510 186 450 652 174, 265 162 358 87,92 497, 603 411 175, 178 549 March v. Eastern R. R. Co. V. March Marcus Ward & Co. v. Ward Markey v. Brewster Marlow v. Pitfeild Marquis of Lansdowne r. Marchion- ess of Lansdowne Marsden i'. Kent Marsh v. Harris INlfg. Co. V. Marsh Marshall, In the Goods of Marshall v. Crow's Adm. V. F. & M. Savings Bank of Alexandria V. Hamilton V. Ross Marshalltown Marston v. Fox V. Swett Martin, Ex parte V. Gale V. Lee V. Martin i\ Niagara Falls, etc. Co. V. Robson Marx V. McGlvnn V. The Press Pub. Co. Maskell v. Farrington Mason, Ex parte V. Blaireau V. Mason Massam v- Thorley's Cattle Food Co. 545, 548 Masten v. Amerman 211 Mathews v. Case 332 V. Cowan 302 V. Flower 508 Mathewson v. Phoenix Iron Foundry 154 348 289 651 661 529 175, 598 593 460 391 148 546 436 595 528 281 289 605 175, 216 359 206 133, 585 92 630 102 320 170, 225 V. Stockdale Mathieson r. Harrod Matson v. Buck Mattby v. Harwood Matthews r Harsell v. McStea V Zane Maudslay v. Maudslay Maulsby ?». Reif snider Maurice r. Devol Maximilian v. Mayor Maxwell v. Hogg V. Palmerton V. Stewart V Wettenhall Maxwell's Trusts, Re 497 500 92 348 475 138 7 178 89 529 366 547 452 184 657 619 xl TABLE OF CASES. May V. Brown V. May May bury v. Grady Maver v. Hardy Maynard v. Heardsley V. Hall V. Vinton Mayor, &c. ot Coldiester v. Brooke Mavor &c. ot Lichfield v. Simpson McAndrew v. Bassett 543, 546, 5ol M Arthur v. Bloom ^i'J M'Aulay v. Brownlie McAvoy V. Medina PAGE y2 309 6U9 535 U2 151 590 3U8 3!)1 331 475 173 338 129 58 127 369 298 127, 134 165 428 516 527 246 83 151 41 563 424 PAGE 204 109 333 82 55 134 457 280 74 341 235 ISlcBride v. McBride 165, McCafferty v. S. D. & P. M. R. R. Co. McCall V. California . V. McDowell McCappin, In re McCartee v. Orphans Asylum Soc. V. Teller McCarthy v. Marsh V. McCarthy V. Metropolitan Bd. of Works McClain v. Ortmayer McClurg V. Kingsland V. McKercher V. Ross V Terry M'CoUum, Ez parte McConnell v. Sherwood McCormick i'. Hadden jM'Cormick's Ex'rs v. Wright's Ex^rs 663 McCosker v. Golden 1^7 V. Long Island R. R. Co. 331 McKinney v Guhman McKnight, Ex parte McKune v. Cal. So. R. R. Co. McLaughlin v. Russell McLean v. Bann V. Swanton McLeod V. Evans McLoskey v. Reid McMahon v. Palmer M'Manus v. Crickett McMillen v. Lee I'. The County Judge of Lee County McMurray v. McMurray McNees v. Thompson M'Neillie v. Acton McNiel V. Holbrook McPeck v. Moore McPherson v. Commonwealth M' Queen v. Middleton Mfg. Co. Matter of Mead v. Billings V. Maben V. Stratton Meades, /;; re Meakin v. Morris Meakings i' Cromwell Mechanics' Bank i: N. Y. & N. H. R. R. Co. 408, 409 Medbury v. Watrous 295 Medley, Petitioner 54, 55 29 299 308 659 22 318 149 378 322 614 227 245 318 133 McCoy V. Huffman McCready, Ex parte V. Rumsey r. Virginia RfcCreery v. Somerville McCuUoch V. Maryland McCullough i;. Moss McCurley v. Stockbridge McCutchen v. M'Gahay McCutchin v. Jamieson McDermott v. Boston V. Hannibal & St. J. R. R. Co. McDonald v. Mallory f Mass. Gen'l Hospital V. Red Wing McDowle, Matter of McFadden v. Commonwealth JM'Gahay v. Williams M'George v. Egan McGibbon v. Abbott McGovern v. N. Y. Cent. R. R. Co McGowan, Matter of Accounting of McGraw, Matter of McGregor v. Ball V. Comstock McGuire v. Parker M'llvaine v. Coxe's Lessee Mclnturf v. State McKay ;•. Wooster McKay's Case McKlbbin v. Fort Smith 247, 294 101 409 128 134 354 384 202 203 320 332 333 254 343 4-30 319 65 203 231 605 2-52 656 375, 633 441 134 129, 437 121 55 526 306 431 244 158 604 644 545 550 160 457 231 Medley, Re Medway v. Needham Mellen v. Mellen Mel wish ;•. Milton Meneely v. Meneely Menendez v. Holt Meo V. Meo Merchants' & Farmers' Bank v. Aus tin Meredith v. Footner Meriam v. Harsen 208, 210 Merivale v. Carson 89 Merrell v. Tice 501 Merriam v. Cunningham 286 V. Wolcott 149 Merrill v. Eastern R. R. Co. 252 V. Yeomans 512 Merry v. Hooper 550 Merryweather v. Moore 327 Messenger r. Bliss 308 Met. Board of Excise v. Barrie 433, 436 Metcalf V. Framingham Parish 609 Mette V. Mette 146, 285 Metzger, Matter of 99, 104 Metzler v. Wood 498, 502, 545 M. E. Union Church v. Pickett Meyer v. Meyer Meyer Bros. v. Cook Mickles v. Rochester City Bank Middleton v. Hoge Middletown, Matter of Village of Mil. & Miss. R. R. Co. v. Finney Milburn, Ex parte Miles V. Caldwell V. Harford 356 145 481 350 294 39 3.36 99 24 615 TABLE OF CASES. xli Milford V. Milford 185 Millard v. Hewlett 293 Miller v. David 86 V. Force 513 V. Huddlestone 620 V. Miller 219, 259 ,347 V. Travers 607 V. Union Pac. R. R. Co. 332 Millett V. People 74 Milligan, Ex parte 58 Millington v. Fox 551 Mills V. Brown 612 V. Hoffman 660 ('. Robarts 656 Milltown, Earl of v. Trench 655 Millward, xMidland R. R. Co. 335 Mil man v. Shockley 452 Milner v. Milner 186 Milnes v. Slater 652 Miner v. Brown 197 Minesinger v. Kerr 93 Minneapolis &, St. Louis Ry. Co. v. Beckwith 131 Minneapolis Threshing Mach. Co. V. Davis 406 Minnesota r. Barber 129 436 Minor v. Jones 150 Minot V. Paine 618 Missouri v. Lewis 74 Missouri Pac. K. R. v. Mackey 76 Mitchell V. Crassweller 342 V. Mitchell 164 V. Moberly 635 V. Robinson 332 Mitchinson v. Hewson 199 Mitford V. Reynolds 634 Mixon V. The State 66 Mizen v. Pick 204 Mobile, County of, v. Kimball 559 Mockey v. Gray 276 Moebus r. Herrmann 341 Moffat V. Burnie 655 V. Winslow 350 Moffitt V. Cavanagh 540 V. Rogers 523 Moggridge v. Thackwell 612 Mohr, In re 107 Mohry v. Hoffman 248 Moletor v. Sinnen 109 Moller, In re 576 Mondorf, Matter of 585 Monell V. Monell 275 Mongeon v. The People 40 Monopolies, Case of 505 Montague v. Baron 201 V. Benedict 201 Montgomery v. Montgomery 174 Montross v. The State 65 Moody V. Baker 86 V. Leverich 328 V. Matthews 196 Moon's Adm. v. R. & A. R. R. Co. 333 Moore v. Fitchburg R. R. 3.36 V. Hegeman 159, 178 179 V. Met. Ry. Co. 340 3fi8 V. Meyer 564 Moore v. Monroe V. Moore 168, V. State V. The Explosives Co. V. United States Moorman i;. Hoge Moorsom v. Moorsom Moran v. Goodwin Mordaunt v. Moncreiffe V. Mordaunt Mordecai v. Pearl Morehouse v. Cooke Morewood i-. Wakefield Morgan, Ex parte Morgan, In re Morgan v. Chetwynd V. Hannas V. Hudson Riv. Ore & Iron Co. V. Morgan 167, 188, V. Skiddy V. Vale, &c. Ry. Co. Moriarty v. Moriarty Morison v. Salmon Morrell r. Dickey V. Morrell 167, Morris v. Brown V. Davies 173, V. Kent V. Sickly V. Wright Morse v. Ely V. Wheeler Mortara v. Hall Mortimore v. Wright Morton v. N. Y. Eye Infirmary Moss V. Oakley V. Robinson Mosselman v. Caen Moulin V. Ins Co. Moultrie v. Hunt 587, Mountain v. Fisher Mouse's Case Movins V. Lee Moyle V. Moyle Moynahan v. Wheeler Mrs. Alexander's Cotton Mugler V. Kansas 432, Muir V. Wilson Mulkem v. Ward Mullaly V. The People Mullarky v. Sullivan MuUer v. Struppman Mulligan v. N. Y. & R. B. Ry. Co. Mullins V. Smith Mulvehall v. Millward Mumby v. Bowden Munger v. Munger Munn V. Illinois Munro v. Merchant V. Munro Munson v. Munson Munster v. Lamb Murdock, Appellant V. Phillips Academy Murphy, Ex parte 611 FAOB 56 348 149 394 72 554 169 227 163 162 295 275 452 105 659 201 282 329 617 392 331 165 550 280 168 342 261 617 628 503 294 292 288 234 512 384 597 580 379 ,643 295 431 391 662 452 470 ,440 277 82 451 614 279 336, 340 620 248 338 347 76 122 258 183 89 388 .388 364 xlii TABLE OF CASES. Murphy v. Boston & Albany R. R. Co. V. Manning c. Phillips r. Smith Murphy, &c. Oath Cases Murray i-. Elliston I'. Usher Murray's Lessee v. Hob. Land & Imp. Co. Musket V. Cliffe Mutual Ass. Soc. v. Watts Myers i; Callaghan v. Myers Mygatt V. Washburn Myles r. Benton 331 453 329 332 63 495 346 68 626 22 497, 500 235 44 222 PAGB 435 235 515 644 522 552 N. V. N. 186 Nanz V. Oakley 662 Nash r. Jewett 286 r. People 96 Nashville, &c. Ry. v. Alabama 59 Nassau Bank v. Jones 359 Nathan ;-• Tompkins 397 V. W hillock 407 National Bank r. Insurance Co 457 V. Norton 368 i;. Yankton 56 National Funds Ass. Co., In re 397 National Life Ins. Co., In re 577 National Park Bank v. Nichols 377 National Progress, &c., Mach. Co. v. Williams Co. 515 Neagle, In re 101 Neal V. Gilmore 348 Neate v. Pickard 598 Ned V. State 65 Needham v. Rivers P. & M. Co. 396 Neel's Adm. r. Neel 348 Neiil, Re 101 Neilson r. Harford 517 Neimcewicz ;•. Gahn 221 Nelichka v. Esterly 326 Nelson, In the Goods of 594 Nesmith v. Sheldon 24 Neu i: McKechnie 227, 228, 229 Neuherger c. Keim 216 Neves r Scott 24 Nevin, In re 246 Newall, In re 511, 517 Newbery, In re 245 r. James 518 Newbury Turnpike Road v. Miller, 36 Newell '•. People 41 V. The Great Western Railway Co. 379 New Haven Pat. Spring Bed Co. v. Farren 550 New Hope Bridge Co. v. Phoenix Bank 368 Newling v. Francis 3fi4 Newman v. Alvord 546 V. Kent 629 V. M. E. Ry. Co. 4-29 V. Newman 170 New Orleans v. Dubarry Newport v. Cook Newton v. Grand Junction Ry. Co. V. Met. Ry, Co. New York Belting Co. v. Sibley New York Cab Co. v. Mooney New York Card Co. v. Union Card Co. New York El. R. R. Co., Matter of New York Firemen Ins. Co. v. Ely New York Life Ins. Co. v. Statham New York Mut. Life Ins. Co. v. Arm- strong New York & Brooklyn Bridge Co., Matter of 35, 39 New York, &c. R. R. Co., v. Boston, &c. R. R. Co. 559 New York & N. H. R. R. Co v. Schuyler 384, 409 546 42 384 138 637 Niboyet v. Niboyet Nichole v. Allen Nichols V. Ashton V. Guy Niciiolson r. Nicholson Nickels v. Haslam Nickerson v. Howard Nicol V. Stockdale Nicoll, Matter of NicoU V. N Y. & Erie R. R. Co. Niles, Matter of Nisbett V. Murray Nitciiie V. Townsend Nixon V. Texas Pac. Ry. Co. Nobel's Exp. Co. i;. Jones Noel V. Kinney Nolan V. Jones Norcross v. Norcross Norfolk R. R. v. Pennsylvania Norris v. Beyea V. Norris V. Vance North V. North Northcote v. Doughty Northern Pac. Ry. Co v. Herbert V. Mares V. Peterson North Hudson County R. R. Co. i;. Hoboken Northwest Trans. Co. v. Beatty Northwestern Mut. Life Ins Co. v. Overholt Norton v. Fazan Novello V. Ludlow Nowlen v. Colt Noyes, Matter of Nugent V. Vetzera Nunneley v. Nunneley Nuthall I'. Vining Nuttall V. Hargreaves 181 264 424 85 171 517 321 494 275 375 663 611 44 333 633 214 302 154 129 196 177 292 166 296 333 335 332 436 396 382 203 503 486 109 280 178 552 517 Oakes v. Oakes 621 V. Turquand 395, 401 Obier V. Neal 256 O'Brian v. Commonwealth 64 O'Brien v. Gaslin 291 TABLE OF CASES. Kliii PAGE PAGE Occleston v. Fullalove 303 Palmer v. Wagstaff 633 O'Dea V. O'Dea 160 180 Palmeri v. Maniiattan Ry. Co. 336 O'Gara v. Eisenlohr 156 Pandorf r. Hamilton 6 Ogden V. Saunders 577 Pankhurst v. Howell 623 Os? V. City of Lansing 366 367 Paper Bag, &c. Co. v. Nixon 530 O'Hara, Will of 635 Parchman v. The State 67 Ohio & M. R. R. Co. v. Wheeler 377 381 Paris V. Levy 89 OUlliara V. Carleton 638 Parish v. Wheeler 358 O'Leary v. Douglass 595 Parishes of St. George v. St. Mar- V. Frisbey 228 garet 190 Oliver, Re 58 Parke's Charity, Re 376 V. Oliver 490 Parker, In re 96 V. Rumford Chem. Works 529 Parker v. Baxter 424 V. Washington Mills 120 V. Bloxam 661 Olmsted v. Keyes 198 212 i.\ Hulme 531 O'Mara v. Hudson Riv. R. R. Co 253 V. Kane 22 O'Meaglier u. O'Meagher 591 V. Stiles 520 O'Neil, Matter of 31 Parkes v. Prescott 81 , Matter of Will of 587 588 Parkinson v. Laselle 501 Onions v. Tyrer 504 Parks, 'Ex parte 99 , 100 Oregon, The 253 Parmiter v. Coupland 88 Oregon Bulletin Printins:, &c. Co., V. Parmiter 625 In re 570 Parnell, in the Goods of 273 O'Reilly v. Morse 509 Parnell v. Parnell 162 Ormiston v. Olcott 660 661 Parrott v. Worsfold 611 Ormsby v. Douglass 88 Parsee Merchant's Case 311 V. Vermont Copper Min. Co 381 Parsons v. Bedford 71 Orr V. Diaper 552 Partlow r. Cooke 348 Orr Ewing, In re 667 Parton v. Prang 489 Orser v. Hoag 121 Partridge v. Badger 364 ,384 Ortmann v. (Jrtmann 189 r. Mends 542 Osborn v. Gillett 340 344 Pass ('. Dundas 663 Osborne v. Duke of Leeds 612 Paterson v. Paterson 185 V. Morgan 346 V. Wallace 329 Osgood V. Allen 498 Patterson v. Gaslight & Coke Co 510 Osgood I'. Osgood 165 V. The State 66 Osterhout v. Shoemaker 309 Pattison v. Pattison 621 Oteiza y Cortes, Luis, In re 115 Patton V. Patton 443 Otteridge v. Thompson 138 V. Western N. C. R. R. Co. 333 Ottley V. Gilby 662 Paul V. Virginia 129 3-53 Overend & Gurney Co. i'. Gibb .391 Paule V. Coding 201 Owen V. Delamere 659 Paulin V. Howser 238 i: Owen 647 Pauline, The 478 479 Owens, Matter of 307 Paxton V. Douglas 665 ,Re 664 Peabody, In tlie Goods of 688 Owens V. Owens 637 Peacock ;•. Monk 224 Oxford Ben. B'ld'g Soc. In re 397 r. ( )aks V. Peacock Peard v. Johnson 228 168 508 P. V. L. 147 V. Morton 614 P. V. S. 147 Pearson, In re 98 Pack V. Mayor, &c. of N. Y. 337 Pearson v. Pearson 549 Paddock v. Salisbury 92 V. Yewdall 50 Page V. Allen 29 Pearson's Case 396 V. Leapingwell 620 Pease v. Chicago & N. W. R. R. Co. 332 V. Morse 295 V. Pease 167 Paget V. Hurst 610 V. Peck 23 Palin V. Brookes 609 Peck V. Bacon 526 Palmer v. DeWitt 489 V. Peck 152 154 V. Haight 92 Peek V. Derry 393 V. Holford 615 V. Gurney 393 V. Hummerston 90 Peek's Trusts, In re 613 V. Hussey 572 Peel's Case 401 V. Mich. Cent. Ry. Co. 333 Peik V. Chicago & N. W. R. R. Co. 23. V. Palmer 184 ,189 399 V. Rouse 478 Pellage v. Pellage 348 xliv TABLE OF CASES. PAOB Pembina Min. Co. v. Pennsylvania 74, 75, 131, 351 377 517 387 655 159 665 566 378 302 42 473 433, 438 38 Penedo v. Johnson Penn v. Bibby Peiin. Co. V. Koy Pciinefatlier v. Bury IViinegar c State I'eiinell v Koy I'eiiniman i-. Elliott Peiiiioyer v. Neff Penrose v. Curren People V. Albertson V. Anderson t". Arensberg V. Asten V. Baker 183 V. Ballard 397 u. Bank of Hudson 400 V. Bartholf 156 V. Batchelor 361 V. Board of Police 41 V. Board of Supervisors of W. County 20 V. Brady 108 I'. Bristol, &c. Turnpike Road Co. 400 r. Budd 435 v. Byrnes 106, 108 V. Campbell 451 V. Casborns 65 V. Cassels 98 V. Charbineau 32 V. Chegaray 242 V. City Bank of Rochester 457 V. City of Brooklyn 40 V. Clark 66 V. Cogdell 473 V. Comstock 67 V. Conklin 132 . I'. Cooper 242 V. Court of Sessions of Ontario County 261 V. Cowles 98 V. Cross 109 V. Curtis 111 V. Davenport 83, 39 V. Dawell 182, 183 V. D'Oench 437 V. Donohue 108 V. Equitable Trust Co. 436 V. Faber 178 V. First Judge of Livingston 319 V. Fisher 42 V. Gail 58 V. Gallagher 75 V. Gates 39 V. Gillson 74, 438 V. Goodwin 65 V. Green 39 V. Higgins 66 V. Humphreys 242 V. Jacobs 96 V. Kaatz 473 V. Kemmler 70 King . Kingston & Road Co. M. 75, 437 Turnpike 400 rAGE People V. Kling 263 V. Lake 263 V. Landt 263 V. Malony 451 V. Marx 438 V. Mayor of Brooklyn 425, 426, 559 V. Mavor of Syracuse 36 V. McLeod 97, 124 V. Meakim 66 V. Mercein 225, 242, 243 V. Moores 262, 296 V. Morrell 28 V. Murray 66 I'. Neilson 96 V. Newton 383 V. New York & M. B. Ry. Co. 39 V. New York Cent. R. R. Co. 31, 42 V. New York Juvenile Asylum 322 V. Olmstead 242 V. Palmer 40, 65 V. Penhollow 61 V. Phipps 490 V. Pillow 319 V. Pinkerton 108 V. Porter, alias Cooper 98 V. Prot. Epis. House of Mercy 97, 98 40 104, 110, 111, 112, 116 55 66 98 631 42 473 154 303 350 400 400 242 273 129 242 229 38 96 645 657 310 66 503 187, 189, 347 542 656 377 70 454 644 302 429 165 367 218 292 636 285 Quigg V. Rauscher ).'. Raymond V. Schmidt V. Sheriff V. Simonson V. Supervisors of Orange County V. Swan V. Taylor V. Townsend V. Trinity Church V. Trustees of Geneva Coll. V. Utica Ins. Co. V. Walts V. Watts V. Wemple V. Wilcox V. Winters V. Wood People, ex rel. Tweed v. Liscomb Pepperell, -Re Percy, In re Perkins, Matter of Permoli v. First Municipality Perris v. Hexamer Perry v. Perry V. Truefitt V. Whitehead Peru, Republic of, v. Weguelin Pervear v. Commonwealth Peters v. Peters Petersen v. Chemical Bank Peterson v. Haffner Petition of United States, Matter of Pettee v. Pettee Pettengill v. City of Yonkers Pettit V. Pettit Petty V. Roberts V. Tooker Phelan v. Douglass TABLE OF CASES. xlv PAGE Phelps V. Brown 507, 512 V. Culver 321 i.-. P. C. & S. R. R. Co. 316 V. Robbiiis 588 Phila. Fire Assoc, v. New York 75, 353 Phila: Nat. Bank v. Dowd 457 Philip V. Philip 175 Philippi V. Wolff 226 Philips V. Clift 317 V. Philips 625 Phillips V. Allen 261 c Barnet 229 V. Horn fray 6-50 V. Innes 317 I'. Library Co. 379 V. Overfield 457 V. Parry 652 V. People 65 V. Turner 622 Phoeni.K Bank v. Risley 471 Phoenix Nat. Bank v. Batcheller 578 Pickard v. Smith 339 Pickens v. Miller 664 Pickering v. McCuUough 508 V. Stephenson 357, 391 Pierce v. Bartrura 366 V. Massenburg 319 V. New Hampshire 433 V. O'Brien 580 V. Swan Point Cemetery 454 Pierre v. Fontenette 150 Pierrepont v. Edwards 610 Piers V. Piers 155 Pierson ;;. Garnet 654 V. Post 480 Pike V. Fitzgibbon 222 V. Nicholas 503 Pillow V. Bushnell 225 Pinnel's Case 566 Piper V. Brown 532 Pitcher v. Carter 277 Pitchford v. Hulme 648 Pitt V. Pitt 170, 230 Pitts V. Hall 508 Pittsburgh, &c. R. R. Co. v. Brown 4-35 Plasket r. Beeby 299 Plaskett, In re 264 Platner v. Sherwood 78 Piatt V. Button 491 I'. Walton 496 Plimpton V. Malcolmson 518 V. Spiller 509, 510, 519 Plowden v. Plowden 185 Plowes V. Bossey 174 Pocantico Water Works Co. v. Bird 426 Poe V. Duck 578 Poindexter v. Greenhow 381 Pole I'. Lord Somers 625 Polka, The 471 Pollard V. Photo Co. 493 Pomero v. Pomero 169 Pomeroy v. Wells 203, 204 Ponsford v. Hartley 665 Pool V. Pool 189 Poor, Guardians of, v. Nathans 154 Pope V. Curl 491 Pope V. Terre Haute Car Mf g Co. PAGE 379 Pope Mf g Co. V. Gormully Mf g Co (No. 3) 527 V. Owsley 529 Poplett V. Stockdale 493 Poppenhusen v. Falke 531 Port V. Port 152 Porter v. Briggs 202 V. Burnett 447 V. Dunn 218 i\ Powell 235 1-. State 473 Portland v. Bangor 74 Portland, City of, v. Richardson 327 Post V. Hover 603 V. T. C. Richards, &c. Co. 513 Potinger v. Wightman 255 ,279 Potter V. Dixon 534 V. Faulkner 349 V. Holland 526 V. iMcPherson 546 V. State 65 Potts V. Port Carlisle Dock, &c Co 329 Powell V. Apollo Candle Co. 43 V. Construction Co. 337 V. Hutchins 84 V. Oakley 298 V. Pennsylvania 433 ,438 V. The People 41 V. Waldron 447 Power i\ O'Connor 391 V. Power 186 V. Village of Athens 33 Powers V. Bergen 277 V. Ware 319 Powles V. Hider 342 Pratt V. Bryant 487 V. Pratt, Read & Co. 411 Preston v. Drew 433 V. Melville 667 ('. Palmer 637 V. Preston 627 V. Spaulding 564 Pretzinger v. Pretzinger 239 Price V. Anderson 619 V. Hathaway 635 V. Hewett 287 V. Powell 693 V. Price 176 Prichard v. Prichard 187 Priestley v Fowler 331 Priestman v. Thomas 600 Prince Albert v. Strange 491 Prince Mf'g Co. v. Prince Metallic P. Co. 551 Pringle v. Woolworth 379 Prize Cases, The 472 Proctor r. Bennis 538 V. Sears 293 Proudley v. Fielder 195 Prout V. Wiley 291 Prudential Co. v. Knott 82 Puetz V. Bransford 514 Pugh V. Bussel 578 Pulbrook, In re 241 Pulbrook V. Richmond Con. Min. Co. 396 xlvi TABLE OF CASES. Pulling i;. Gt. Eastern Ry. Co. Tuiupelly ('■ Green Bay Co. V. Village of Owego Pureell v. Turcell Turdy v. Koch. Printing Co. Purse I'. Snaplin Putnam v. Payne V. Town V. Wyley PAGE 251 428 38 166, 655 82 620 452 347 482 Quain v. Russell 227 Queen i-. Bertrand 67 V. Brighton 146 V. Buck 558 V. CJiarlesworth 63,64 . V. Clarke 241 V. Deaves 474 V. Dickenson 366 V. Duncan 67 V. Durham 354 V. East. Archipelago Co. 536 V. Clyde 474 V. Howes 174, 240 V. Inhab. of St. Mary Magdalen 319 V. Jackson 225 V. Keyn 122, 123 V. Knight 474 V. Lady Young 449 V. Lundie 366 V. Matthews 474 V. Millis 20, 153 154, 161 V. Nash 262 V. Nellins 112 V. Pierce 474 V. Preston 474 V. Price 455 V. Prosser 507, 536 V. Registrar of Joint Stock Co.'s 356 V. Saddlers' Co. 362 V. Scaife 67 V. Stephenson 455 r. Thurborn 474 V. Weil 114 V. Wernway 487 V. West 473 V. Wood 366, 474 Quigley v. United States 139 Quilty V. Battle 206, 452 Quin's Estate 222 Raddle v. Norman Radley ik Kennedy Raffenel, In the Goods of Raggett V. Findlater Rahrer, In re Railey v. Lanahan Railroad Co. v. EUerman V. Georgia V. Hanning V. Harris V. Morey V. Tax Case Railway v. Gentry V. Stutler 546 286 587 545 438 327 359 24 338 377 339 76 359 247 PAGE Railway Co. v. Hutchins 484 V. Whitton 377 Railway Reg. M'fg Co. v. No. Hudson Co. R. R. Co. 609, 522 Rainsford v. Taynton 646 Ralston v. Ralston 183 V. Smith 513, 521 Ramsey v. Ramsey 239 Ranee's Case 397, 398 Rand v. Hubbell 618 Randall v. Rotch 320 Ranger v. Gt. Western Ry. Co. 368 Rannels v. Gerner 308 Ransom v. Nichols 197, 198 Rantz V. Barnes 228 Rapalje v. Hall 282 Raphael v. Boehm 664 Rasche, The 480 Rash V. Halloway 129 Ratcliff V. Ratcliff 170 Raven v. Waite 656 Ray V. Adden 202 V. Tubbs 302 Raymond v. Loyl 235 V. Minton 316 Rayner v. Mitchell 342 Read v. Hodgens 634 V. Legard 202 V. Richardson 547 V. Williams 635 Reade v. Bentley 501 V. Conquest 504 V. Livingston 216 Redway v. Ohio Stove Co. 532 Reed v. Cutter 507 V. HoUiday 505 V. Home Savings Bank 369 V. State 473 Reedis v. Lond. & N. W. Ry. Co. 337 Reel I'. Elder 183 Rees V. Peltzer 489 Reese v. Biddle 332 Reeves v. Newenham 652 Reeves' Trusts, In re 616 Reggel, Ex parte 105, lOG Reg. V. Bertrand 67 V. Brighton 146 V. Buck 558 V. Charlesworth 63,64 V. Clarke 241 V. Deaves 474 V. Dickenson 366 V. Duncan 67 V. Durham 354 V. East Archipelago Co. 536 V. Clyde 474 V. Howes 174, 240 V. Inhab. of St. Mary Magdalen 319 V. Jackson 225 V. Keyn 122, 123 V. Knight 474 V. Lady Young 449 V. Lundie 366 V. Matthews 474 V. Millis 20, 153 154, IGl V. Nash 262 TABLE OF CASES. xlvii PAGE PAGE Reg. V. Nillins 112 Rice y. Parkman 279 V Pierce 474 V. Rice 308 V. Preston 474 V. Williams 490 V. Price 455 Rich V. Whitfield 627 V. Prosser 507 536 Richard v. Brehm 154 V Registrar of Joint Stock Co.'s 356 Richards v. Clarksburg 362 V. Saddlers' Co. 362 V. Collins 243 V. Scaife 67 Richardson, Ex parte 659 V. Stephenson 455 Richardson v. Allen 86 V. Thurborn 474 V. Dubois 202 V Weil 114 y. Greese 625 V. West 473 y. Morgan 626 V. Wood 366 474 V. Richardson 618 Reiche v Smyth 32 Richardson's Case 300 Reid, In the Goods of 588 Riddell v. Errington 209 Reid V. Teakle 201 Riddle v. Driver 484 Remington o. Walker 664 Rider Life Raft Co. v. Roach 358 359 Rendall v. Rendall 665 Ridgway v. Hungerford Market Co. 327 Reneaux v. Teakle 200 Ridley v. Ridley 596 Renihan v. Wright 454 Rigney v. City of Chicago 428 Rensselaer R. R. Co. v. Davis, Matter Riggs V. Cragg 618 ot 36 y. Palmer 637 Republic of Peru v. Weguelin 377 V. Riggs 690 Requa v. City of Rochester 338 Rima y. Rossie Iron Works 276 299 Respublica v. Oswald 82 Ring y. Jamison 292 Revis V. Smith 89 Risley v. Phenix Bank 471 Rex V. Annesby 315 Ritchie v. Putnam 127 i\ Billinghay 315 River Rendering Co. v. Behr 434 V Clarke 98 Rix y. Rix 169 V. Delaval 241 275 Roach V. Quick 199 V. DeManneville 241 Robalina v. Armstrong 263 V. Earl Ferrers 96 Robb V. Connolly 105 V. Fleet 82 Robbins v. Chicago City 327 c. Greenhill 98,99 241 y. Shelby Taxing Dist. 129 V. Hopkins 263 Roberts, Ex parte 306 y Isley 273 Roberts v. Camden, 85 V. Johnson 240 y. Pocock 620 V. Lolley 180 181 y. Reilly 105, 106 107 108 y. Luffe 260 V. Smith 329 V. Margram 316 Robertson v. Bennett 82 i\ Mead 217 y. Broadbent 609 612 V. Metcalf 519 V. Parks 394 V. Morris 398 V. State 152 0. Moseley 263 Robey v Smith 129 V. Plant 67 Robins v. McClure 195 198 V. Richardson 361 Robinson, Ex parte 101 0. Ripon 315 Robinson v. Bransby 627 V. Robinson 87 V. Commonwealth Ins. Co. 24 V. Roddam 96 V. Hamilton 433 V. Scriever 96 V. Holt 487 V. Smith 240 V. Lowater 629 V. Soper 263 V. Oceanic Steam Nav. Co. 129 , 253 V. Spencer 364 V. Ommanney 596 u. St. Martin's, Exeter 316 y. Robinson 164 V. Vandercom 67 V. Smith 412 i\ Wheeler 519 y. State 66 y. White 82 Roch y. Callen 613 Rexroth v. Coon 451 Rochfort y. Ely 806 Reynolds, Ex parte 312 Rocke y. Rocke 654 Reynold's, In re 568 Rodgers v. Nowill 550 Reynolds, In the Goods of 599 y. Rodgers 552 Reynolds v. Braithwaite 338 Roger's Case 597 V. Phillips 452 Rogers v. Acaster 193 V. United States 50, 56, 60,61 , 117 y. Dill 277 ,279 Rice V. Boss 527 y. Leyden 334 y. Lumley 177 V. McLean 310 xlviii TABLE OF CASES. PAGE Kouers .-. Rogers 188,217,219 r. Walker f^^ Kolhvagen v. Kollwasen ^ o^a Rolston i. Missouri Fund Com rs o&i Koniaine c Chauncey f'"^ Rome, &c. Ry. Co. v. Chasteen ^t Roose r. Perkins ^-° Roper's Trusts, /w re ^"r-o Rose y. Clark irq fii<^ J-o V. Rose 168, 615, 6oO Rosenblat, Ex parte I'jy Rosen wasser v. Berry ol* Ross, Matter of J* Ross, u. Chicago, &c. Ry. <^^^ ,. Ross loO, 204 Rosseter y. Cahlmann 4d Rotheram f. Rotheram o&b Rotherniel r. Meyerle 129 Rountree v. State 4^^ Rouse's Estate, In re oob Rowan v. Runnels 22, 23 1-. State '^ Rowe y. Smith 20b Rowland, Kx parte 10^ Rowley v. Adams 66-1 Roval Baking Powder Co. v. Sherrill 546 RoVal Charter, The 339 Royall, Ex parte 76, 102, 103, 112 Royer Wheel Co v. Fielding 564 Rubber Co. v. Goodyear 527 Ruddiman v. Smith 341 Rudolph, In re 436 Rugg r. Rugg 5^0 Rule of Court, Matter of 59 Rumsey v. Is. Y. & N. E. Ry. Co. 428 Ruse V. Mut. Ben. Life Ins. Co. 212 Russell V- Dickson 613, 656 V. Mayor of New York 431 V. Smith 495 V. Stewart 347 Ryall V. Kennedy 255 Ryan v. Bindley 24 Ryder, Matter of 2.35 Ryder v. Hathaway 487 V. Holt 553 r. Hulse 198 r. Ryder 174 r. Wombwell 288 Rynes v. Wellington 600 Ryves v. Duke of Wellington 643 S. I'. E. S., falsely called B., y. B. Sackett v. Andrews Saco I'. Woodsum Sadler v. Henlock Salisbury v. Met. Ry. Co. Saltpetre Case Saltus V. Everett Sanders r. Rodway V. Soutter Sandford v. McLean Sands v. N. Y. Life Ins. Co. Sanford v. Messer 430, 147 159, 160 568 433 337 397 431, 559 423 217 666 208 139 527 PAOE Sanky v. Golding 215 San Mateo, County of, v. bo. Pac. R. R. Co. 76 Santa Clara County v- Same 74 Santo Teodoro v. Santo Teodoro 181 Saratoga County Bank v. Pruyn 214, 221 Sargent v. Metcalf 424 Saunders v. Drake 654 V. Saunders 186 Savage v. Foster 287 Saville v. Jordine 86 Savin v. Hoylake Ry. Co. 29 Savings Instit r. Makin 35 Saxton r. Aultman 526 V. Hawksworth 336 Saye v. Sele, Barony of 261 Sayer v, Sayer 611 Sayles v. Chicago, &c. Ry. Co. 531 Scanlan, In re 246 Scarff V. Metcalf 333 Schenectady, &c. Plank Road Co. v. Thatcher 399, 406, 407 Schettler v. Smith 615 tichlesinger v. Bedford 504 Schloch V. Garrett 348 Schlossberg v. Lahr 238 Schluter v. Bowery Bank 644 Schneider v. Hosier 227 V. U. S. Life Ins Co. 212 SchoUenberger, Ex parte 378 Schooner Exchange v. M'Faddon 123 Schultz V. Schultz 229 Schumacher v Schmidt 597 Schuneman v. Palmer 225 Schuyler v. Curtis 493 Schuyler, County of, v. Thomas 23 Schwab V. People 40 Scott V. Atty.-Gen'l 179 V Bentley 310, 644 V. Depeyster 412 V. Raub 150 V. Rowlands 549 V. Sebright 160 V. Shufeldt 145 V. Snyder, &c. Pro. Co. 394 V. Stamford 503 V. Stansfield 89 V. State 149 V. Sweeney 332 Scott Mfg. Co. V. Sayre 508 Scottish Pet. Co., In re 401 Scrafford, In re 66 Scribner v. Fisher 577 Scrimshire v. Scrimshire 158 Scruby v. Payne 300 Scully V. Scullv 348 Seal V. Tichener 627 Seaman v. Duryea 282 ('. Netherclift 89 Searcy v. Hunter 291 Searing v. Searing 193 Searle v. Lindsay 3ol V. Ridley 326 Seavy v. Dearborn 487 Secord v. Secor 454 Secretary of State v. Kamachee 124 TABLE OF CASES. xlix PAGE PAGE Security Co. v. Bryant 62U Simpson v. HoUiday 518 Setlley v. Arbonin 96 V. Wilson 530 Seixo V. Proverzende 551 Sims, Goods of 588 Selkrig v. Davis 579 Sims V. Everhardt 286 Sellon V. Watts 620 V. Maryatt 502 Semple v. Bank of Brit. Columbia 382 Singer v. McCormick 327 Seventy-eight Bales of Cotton 471 Singer, &c. Mf'rs v. Wilson 645 Sewall V. Catlin 85 Sinklear v. Emert 289 Seward v. Vera Cruz 251 252 Skerritt v. Scallan 334 Sewell's Estate, Jn re 617 Skidmore v. Davies 282 Sewing Mach. Co. v. Frame 515 Skinner, Ex parte 241 Shackle ton v. Shackle ton 169 v. Orde 245, 246 Shaffer v. Kugler 216 Skipp V. E. C. Ry. Co. 330 Shaler v. Trowbridge 211 Skottowe V. Young 259 Shallcross v. Wright 651 Skrine v. Gordon 288 Shannon v. Shannon 183 Slator V. Brady 291 Sharland c. JMiddon 645 V. Trimble 291 Sharp V. Cropsey 234 Slaughter-House Cases 130, 434 Sharpe v. Crispin 255 Sleath V. Wilson 342 Shaw V. Atty.-Gen'l 183 265 Sleeman v. Wilson 273 V. Borrer 629 Slemmer's Appeal 527 V. Coffin 802 Sloan V. Kane 145 Shearman v. Robinson 659 Small V. Herkimer Mfg., &c Co. 407 Shears v. Solhinger 568 Smillie r. Qulnn 212 Shedden v. Patrick 259 Smith, In re 292 Sheldon v. Kibbe 561 Smith, Matter of Will of 585 V. Sheldon 624 Smith V. Alabama 72 Shelley v. Westbrooke 242 V. Anderson 396 Shelthar v. Gregory 217 r. Chadwick 393 Shelton v. Springett 234 V. Combs 457 Shepheard v. Beetham 611 V. Cook 85 Shepherd v. Mackoul 202 V. Denman 348 Sherman v. Ballou 272 V. Dorr's Adm. 259 v. Garfield 208 V. Dowell 330 V. R. & S. R. R. Co. 331 V. Edwards 613 V. Scott 596 V. Ely 512 Sherrington's Case 651 V. Evans 294 Sherwood v. Alvis 382 V. Everett 647 ('. Am. Bible Soc. 369 632 V. Helmer 38, 39 V. Ray 143 141 146 V. Johnson 348 Shideler v. State 66 V. Keal 20 Shilson V. Atty.-Gen'l 174 265 v. King 293 Shipman v. Rollins 631 V. Low 291 Sliipp V. Miller's Heirs 22 V. Lyke 226 Shirk V. City of La Fayette 129 V. Masten 226 Shirley v. Bennett 348 I'. McClelland 534 Shook V. Wood 498 V. N. Y. & H. R. R. Co. 334 Shrewsbury & B. Ry. Co. v. N. W. V. Pearce 531 R. R. Co. 358 V. Reynolds 227 Shute V. Dorr 246 V. Roche 264 Sibree i'. Tripp 566 V. Rogers 348 Sibthorp V. Mo.xom 626 V. Sanborn 487 Sidebotham v. Watson 622 V. Smith 158, 167, 178, 183, Sidney v. Sidney 171 172 622 225, 460 Siebold, Ex parte 102 V. S-ate 106 Siegert v. Findlater 546 V. Thompson 327 Sill I'. Worswick 579 V. Whitman Saddle Co 532 Silsbury v. McCoon 485 V. Zeigler 566 Silverman's Case 568 Smith's Estate 618 Simmons v. Bull 259 Smith & Griggs Mfg. Co. v. Sprague 511 y. McElwain 216 Smyth V. Darley 361 V. United States 64 Snelling, Matter of Will of 585 Simon, Matter of 97 Snyder v. Snyder 454 Simonin v. Mallac 147 Soady v. Turnbull 645 Simpson v. Davis 540 Society, &c. v. New Haven 377 V. Grayson 248 Sohier v. Mass. Gen. HospitJ il 279 1 TABLE OF CASES. Soldanels v. Mo. Pac. Ry Solinger i'. Earle Solomons v. Koss V. United States Soltaw V. l)e Held Soltykoff, /" re Souierville v. Gray & Co. Somerville v. SomerviUe Sonley v. Clockmakers Oo Sottoiuayor v. De Barros South V. Denniston V. Williams Southern v. How Southey V. Sherwood South Ottawa v. Perkms Spain V. Arnott Spain, King of, i'- Hullett Spalding v. Rosa Sparman v. Keim Spear r. Crawford Spears i;. Snell Spelman v. Freedman Spencer v. Spencer Spiers v. Brown Spies V. Illinois Spinks V. Robins Co. PAGE 247 566 579 508, 527 79 289 332 255 372 146, 147, 230, 285 24 626 541 493 24 327 3,377 325 295 406 322 564 622 499 42, 50, 76 625 630 348 127 436 202 22 369 470 618, 619 656 319 259 616 478; 479 648 Split Rock Cable Road Co., Matter of 427 Spode V. Smith '^^^ Spong V. Spong Sprague v. Waldo Spratt V. Spratt Sprayberry v. Atlanta _ V. Merk Spring Co. v. Knowlton Springfield E. & T. Co. v. Green Sprott V. United States Sproule V. Bouch Spurway v. Glynn Squire v. Whipple Stack V. Stack Stackpoole v- Howell Stacpoole i'. Queen Stag V. Punter Stahlschmidt v. Lett Stainton v. Carron Co. Stamm v. Bostwick Standard Folding Bed Co. v. Keeler Stanfield, Matter of Stanhope v. Stanhope Stanley v. Bernes V. Nat. Union Bank V. Potter Stanley Rule, &c. Co. v. Bailey Stanton v. Willson Starbuck i'. Starbuck State V. Adams V. Addington V. Ah Chew V. Armington V. Bittick V. Boswell V. Burgoyne V. Champeau V. Clark V. Clifford 665 136 526 657 163 643 247 622 528 239 170 150 433 434 182 154 73 434, 436 66 65 474 State V. Connoway . V. Conway — - V. Cooper It. Copeland I'. Dean V. Dent ^ „ V Dist. Court for Ramsey Co. V. Dist. School Board of Edger ton ^ V. F. C. Coal & Coke Co V. Furbush V. Gisch ■ V. Glenn V. Goodwill r. Gurney V. Hairston . V. Hart V. Holder . . V. Honeycutt V. HufEord V. Jeffors , V. Jones .. — V. Kennedy V. Kent . V. Laverack V. Learn ard V. Long V. Lymus V. MoCann V. McDowell V. McGinnis V. Moon V. Newsom V. O'Neil V. Owen V. Pool V. Read V. Reinhardt V. Rhodes . V. Richardson V. Ross V. Schweitzer V. Sherburne V. Shumpert V. Simpson V. Snow V. Stewart V. Swepson V. Ta-cha-na-tah V. Taylor V. Tutty V. Vanderpool V. Walker V. Waterhouse V. West V. Weston V. Wheeler V. Whipple V. Whitford V. Wilforth V. Williams V. Wister State Bank of Ohio v. Knoop State of Illinois v. Delafield St. Clair i'. Cox Steam Cutter Co. v. Sheldon PAGE 347 473 154 65 473 129 379 56 74 129, 436 435 60 74 433 149 66 451 65 109 66 66 149 55 427 303 129 451 473 261 129 65 58 70 65 65 433 149 229 106 149 155 65 261 62,66 433 109 66 72 473 149, 151 112 154 65 67 473, 474 433, 434 66 150 58 70 67 23,24 377 378, 379 527 TABLE OF CASES. PAGE PAGE Steam Stone Cutter Co. v. Short- Strauder v. West Virginia 75 sleeves 527 Street v. Licensed Victuallers' Soc. 81 Stearns i-. Herrlck 487 Stretch v. Watkins 235 Steel V. So. East. Ry. Co. 337 Striker v. Kelly 36 Steel V. Steel 348 Stringham v. Hilton 329 Steele, In the Goods of 599 Strong V. B'klyn Cross Town R. R. Steele v. Thompson 228 Co. 410 Stegall I.'. Stegall's Adm. 261 Strubbee v. Railway 4b4 Stelz V. Shreck 197 Stuart V. Palmer 68,69 Stephens v. Cady 495 V. Simpson 321 V. Elwall 346 Stubbs V. Holywell Ry. Co. 325 Stephenson v. Dowson 611 V. Leigh 646 V. Little 487 Studd V. Cook 605 V. Short 875 Studwell V. Shapter 286 V. Stephenson 299 Stupp, In re 112 Stern v. Freeman 293 Sturges V. Crowninshield 568 V. Meikleham 286 Stutz V. Armstrong 508 Stetson V. Stetson 244 Styles V. Guy 663 Stevens v. Benning 502 Suare v. Caffe 214 V. Gladding 495 Sugden v. Alsbury 618 V. Griffith 471 Suggate V. Suggate 186 V. Keating 519 Suisse V. Lowther 613 V. Stevens 308 Summers v. Reynolds 662 V. Woodward 341 Sunderlin v. Bradstreet 88 Steward v. Young 94 Sussex Peerage Case 146 Stewart v. Ball 482 Sutro V. M. Ry. Co. 429 V. Brooklyn R. R. Co. 336 Suydam v. Williamson 24 V. Lispenard 584 Swainson v. N. E. Ry. Co. 346 St. George & St. Margaret, Parishes Swans, Case of 449 of 190 Sweeney v. Warren 652 Stickland v. Stickland 188 Sweet V. Benning 491 Stickney v. Sewell 660 V. Cater 501 Stiles V. Cardiff Steam Nav. Co. 343 ,452 Swift V. Swift 217 ,243 V. Nokes 88 I'. Tyson 24 St. John V. St. John 190 V. Wen man 178 St. John's Coll. V. Todington 388 Swinfen v. Swinfen 662 St. Louis V. Bircher 485 Swires v. Parsons 348 Stockdale v. Hansard 90 Sykes v. Dixon 844 V. Onwhyn 493 V. Halstead 203 Stocken v. Patrick 202 V. Sykes 178 550 Stogdon V. Lee 220 222 Symes v. Vernon 654 Stokes V. Amerman 211 Symington v. Symington 176 Stoltz V. Doering 152 Symonds v. .Jones 547 Stone I'. Damon 308 Symons' Case 300 V. Mayor of New York 431 Synge v. Synge 626 V. People 65 V. Scripture 644 V. Varney 92 Taf t V. Pike 295 Stoner v. Todd 517 V. Sergeant 295 Stones V. Cooke 172 Tague V. Hayward 319 Storey v. Ashton 342 Talbot V. Chamberlain 311 V. Challands 86 ('. Hudson 426 427 Storrs V. City of Utica 338 .367 V. Lewis 476 Story V. Holcombe 504 I'. Shrewsbury 246, 273 V. Johnson 291 Talmage r. Chapel 647 V. N. Y. El. R. R. Co. 428 Tarble's Case 101, 296 V. Story 168 Tarpley v. Blakey 93 Stoudt V. Shepherd 249 Tarrant v. Webb 330 Stourton v. Stourton 245 Tarry v. Ashton 339 Stout V. Stout 656 Tate V. Donovan 227 Stoutenburgh v. Hennick 129 Tatem, Ex parte 101 Stovall V. Johnson 235 Tatham v. Drummond 613 Stowe V. Thomas 504 Taunton v. Morris 194 St. Paul V. St. Paul 170 Taylor, Ex parte 295 Stracey, In the Goods of 597 Taylor, /?; re 176, 243 Stranbenzee v. Monck 588 Taylor, Matter of 310 lii TABLE OF CASES. Taylor v. Chichester & M. Ry. Co. r. Church V. Crowlaml G. & C. Co. V. Evunsville, &c. Ky. Co. V. Gillies V. Meads . i;. Miami Co. V. Mitchell V. Pluiiier V. Porter V. Taiiitor V. Taylor i: Ypsilanti Taylor's Estate, In re Teal V. Woodworth Telegraph Co. v. Brett Temple v. Hawley Tennent v. City of Glasgow Bank Terrell v. Matthews Terrible, In the Goods of Terry iv Hutchinson Terwilliger v. Wands Teter v. Teter Textor v. B. & 0. R. R. Co. Tiiatcher's Trusts, Re Thelvvall v. Yelverton Thomas v. Foxwell V. FuUis V. Queen V. Roberts V. Thomas Thompson, Ex parte Thompson v. Boisselier V. James V. Ketcham V. Stanhope V. State V. Thomas V. Thompson V. Watts V. Whitman Tliomson v. Thomson V. Univ. of London Thorn v. Garner Thornton v. Grange Thorp V. Bateman V. Thorp Thorpe V. N. Y. Cent. Ry. Co. Tliorpe Bros. & Co. v. Fowler Thrupp V. CoUett Tliurber v. Townsend Tluirlow V. Gilmore V. Massachusetts PAGE 358 93 382 333 546 222, 2-2-i 409 597 457 43, 429, 4:30 108 611, 622, 641 24 627 210 509 298 895 663 598 249 86 154 435 615 200 518 290 3 243 291 101 514 513 285 490 65 264 174, 178, 183 642 184 273 388 656 348 348 159, 178 336 424 631 196 293 126, 433 Thynne, Lady v. Earl of Glengall 624, 626 Co. V. Heineken 529 609, 611 238 Tibhe & Son Mfg, TifEt V. Porter V. TifEt Tilden v. Green 636 Tillison v. Tillison 167 Tiinorson v. Timerson 168 Tinkham i'. Tapscott 38 Tinney i\ Stebbins 460 Tioga County v. So. Creek Town- ship 261 Tioga R. R. Co. v. B. & C. R. R. Co. 23 Tittman v. Thornton Tobey Furniture Co. v. Colby Todd V. Hawkins V. Rough V. Todd V. Weber Toledo Tie, etc. Co. v. Thomas Tombs V. Roch Tomlinson v. Bury Tompkins v. Halleck V. Tompkins' Ex'rs Tompson v. Dashwood Tom Tong, Ex parte Tonnele v. Hall Toogood V. Spyring Toole V. Young Topliff V. Topliff Toplis V. Baker Torrens v. Campbell Tovey v. Lindsay Tower v. Tower Towle V. Dresser Town of Guilford v. Supervisors of Chenango County Towne v. Wiley Townsend v. Barber II. Brown V. Leonard V. Todd V. Townsend Trageser v. Gray Trelawney v. Coleman Tremain v. Cohoes Co. Triggs i\ Lester Trimmer v. Hiscock Trimnell, In the Goods of Tripp V. Riley Trombley v. Humphrey Troutman's Case Troy Iron & N. Factory v. Corning Trustees of Brit. Museum v. WHiite Tuchband v. Chic. & Alton Ry. Co. Tucker v. Gilman V. Magee V. More land Tuckey v. Henderson Tufnell V. Constable TuUett V. Armstrong TuUis V. Fleming Tunis V. Hestonville, &c. Ry. Co. Turner v. Gaither V. Gibb V. Mason V. Robinson V. Rookes V. Thompson V. Winter Turpin v. Pub. Adm. Turrill v. Mich. &c. R. R. Co, Tuson V. Evans Tuttle V. Gaylord Twiman, Re Twitchell v. Commonwealth Twycross v. Dreyfus Tynte v. The Queen Tyson v. Simpson PAGE 647 533 88 83 170 264 382 653 609 489 235 90 103 588 88 504 523 626 247 180 452 291 425 302 663 35 576 23 188 129, 437 231 338 31 85 590 460 429 108 529 633 379 407 321 294 613 626 222 108 363 292 628 327 491, 494 202 181 581 152 525 81 540 113 50 380 78 481 TABLE OF CASES. liii PAGE Chlmann v. Uhlmann 188 Ulery c. Jones 449 Ulster B'ldg Co., In re 457 Underbill v. Dennis 274, 276 V. Taylor 93 Union Cent. Life Ins. Co. v. Thomas 382 Union Edge Setter Co. v. Keith 515 Union Ferry Co., Matter of 42(3 United Nickel Co. v. Cal. Electric Works 515 United States, Petition of 429 United States v. Arredondo 37 V. Bags of Coffee 65(5 i\ Bainbridge 319 V. Bell Telephone Co. 536 V. Bennett 57 IV Bott 118 V. Brig Malek Adhel 556 V. Brigantine Mars 556 V. Britton 57 V. Caldwell 112 V. Chase 57 V. Comerford 57 V. Coolidge 64 V. Crook 312 V. Cruiksbank 50, 75, 130 V. Davis 104 311 V. De Walt V. Doss V. Foote V. Fox (•- Gaylord V. Gibert ('. Hanover V. Harniison v. Haskell ;;. Kagama V. Kelly ('. Lawrence V. Loftis V Martin V. McClay V. McRae V. Morris V. O'Keefe V. Padelford V. Perez V. Quigley V. R. R. Bridge Co I'. Rauscher 104, 110, 111, 112, 116 ■ V. Rector 100 • c Reese 131 • V. Scholfield 321 ■ V. Shares of Stock 138 ■ V. Shoemaker 64 . V. Steffens 544, 553 60 101 118 23 57 64 57 67 64 312 118 70, 112 57 57 101 377 57 470 470 64,65 471 429 V. Terry V. Thomas V. Titus V. Wigbtman V. Wonson United States of America r. Priolean V. Wagner 3, United Stafes Rifle, &c. Co. v. Whit- ney Arms Co. 206 57 347 57 22 3, 377 511 PAGE United Telephone Co. v. Harrison 517 f. London, &c. Co. 534 V. Sharpies 531 Unwin v. Clarke 7 V. Heath 632 Upmann v. Elkan 552 V- Forester 652 Urban v. Grimes 291 Usparicha v. Noble 138 Uttertoa v. Tewsh 182 Vachell v. Roberts 617 Vadala v. Lawes 184 Vail V. Hamilton 364 V. Reynolds 394 Valentine, Matter of 279 Valentin! v. Canali 293 Vallean v. Vallean 160, 171 Van Aernam v. Van Aernam 173 Van Alen v. Am. Nat. Bank 457 Van Arnam v. Ayres 225 Van Arsdale v. Laverty 57 Vanartsdalen v. Vanartsdalen 244 Van Aukin v. WestfaU 84 Van Bentluiysen r. Van Benthuysen 167 Van Bokkelen v. Taylor 566 Van Cleaf v. Buws 177 Van Denburgh v. Village of Green- bush 40, 41 Vanderheyden v. Mallory 199 Vanderpoel v. Gorman 384 Vanderzee v. Slingerland 614 Van Doren v. Olden 618 Van Dorn v. Young 319 Van Dresser v. Oregon Ry- & Nav. Co. 379 Van Duzor v. Allen 424 Vane v. Vane 306 Vane's, Lord, Case 229 Van Epps v. Van Deusen 194, 272 Van Fossen y. State 182 Van Home, Matter of 282 Van Patten v. Burr 564 Van Schoyck r. Backus 348 Vansittart v. Vansittart 217 Van Tassel v. Capron 85 Van Tassell i\ Manliattan Hospital 343 Van Tuyl v. Van Tuyl 154 Van Valkenburgh v. Lenox Fire Ins. Co. 566 Van Valkinburgh v. Watson 235 Van Voorhis v. Brintnall 159, 178 Van Winkle v. Constantine 208 Van Wyck v. Horowitz 549 Vasse V. Smith .302 Vaughan v. Vanderstegen 287 Vaughn v. Hopson 424 Veazie v. Penobscot R. R. Co. 327 Venables v. Smith 842 Venice, Town of v. Murdock 25 Venus, The 137 Vernon v. Hallam 549 V. Vernon's Heirs 261 Vicars v. Wilcocks 345 Vickers Sons & Co. v. Siddell 517 liv TABLE OF CASES. Vidal V. Girard's Ex'rs. Viiller I'. Collycr Village of Carthage v. Frederick Vincent v. Vincent Virginia, Ex parte 75, Virginia Coupon Cases Virginia r. Rives Volans V. Owen Von Ht-ydon v. Neustadt Voorliies v. Voorhies PAGE 389 244 306 155 102. 130 381 130 227 533 Ward V. People V. Steamboat " Little Red " I'. Ward Warden v. McConnell Warden v. Ashburner Waring v. Jackson Warne v. Routledge Warner v. Durant V. Miller PAGE 422 293 187 227 619 24 501 613 225 291 Warren v. Paul 11. Warren 58 225 Warrender v. Warrender 230 Wabash, &c. Ry. Co. v. Ham 405 Warten v. Warten 179 Waildell ('. Waddell 186 Washaw v. Gimble 243 Wade r. Kalbfleisch 650 Washburn, Matter of 104, 110 Wailhanis v. Am. Missionary Soc. 224, 225 Washburn v. Gould 508 Wadswortli v. Queen of Spain 3 Washington v- Washington 150 V. Tlionias 36 Washington Park, Matter of 36, 38 V. Wadswortli 133 Washington Street Asylum, Matter Wadsworth and Queen of Spain, of a^ Matter of 379 Wason V. Walter 90 Wager v. Wager 604, 666 Waterbury v. Newton 433 Walill, In re 57 Waterman v. Mackenzie 527 Wainford i;. Heyl 219 — - V. Shipnian 535 Waistel v. Holman 81 Waters, In re 655 Wait V. Maxwell 307 Watervliet Turnpike Co. v. McKean 38 c. Wait 177 Watkins, Ex parte 99 Waite, Matter of 579 Watkins v. Carlton 261 Waithman v. Wakefield 201 Watkins Nat. Bank v. Sands 504 V. Weaver 92 Watling V. Oastler 329 Wakefield v. Mackay 144 Watson, In re 436 Wakeman v. Dalley 394 Watson V. Arundell 688 c. Grover 563 i\ Moore 93 Walcot V. Walker 493 Watts V. Fraser 93 Walford v. de Pienne 210 1'. Owens 261 Walker v. Brogden 86 Weall V. Rice 623, 626 I'. Davis 302 Webb V. Powers 504 V. Sauvinet 50 V. Richmond & D. Ry. Co. 333 r. So. East. R. R. Co. 840 Webber v. Piper 329 V. Walker 590, 597 V. Vincent 88 V Walker 661 Webster v Reid 50 Walker's Case 192 Weed V. Burt 328 Walker's Estate 348 V. Cantwell 604 Wall V. Wall - 656 V. Panama R. R. Co. 336 Wallace v. Bennett 82 V. Weed 604 V. Lincoln Sav. Bank 391 Weeks v. Leighton 294, 295 V. Fomfret 625 Weems v. Mathieson 329 Waller v. So. East. Ry. Co. 3:il Wegmann v. Corcoran 519 Walleyj; Holt 302 Weinstock v. Levison 279 Wnlraven v. Jones 348 Weismer v. Village of Douglas 43 Walsh, A'e 246 Welch, The John M. 129 Walsh V. Powers 295 Welch v. Bunce 290 V. Trustees of N. Y. & B. Bridge 348 Weld V. Walker 454 Walsham v. Stainton 650 Weldon v. Dicks 498, 502 Walston V. Nevin 75 Weller v. Weller 171 Walter v. Everard 288 Wellesley v. Beaufort 242 V. Selfe 79 Welling ('. Crane 515 Waltcrmire v. Waltermire 189 Wells V. Fletcher 231 Walton ?,'. Green 231 V. Perkins 348 Wando, The 471 Welsh V. The No Cambria 253, 254 Wanstall v. Pooley 341 V. The State 129, 437 Warhurton v. G. W. R. R. Co. 334 Wemyss v. Hopkins 66,67 Ward V. Dean 86 Wendell, Matter of 307 1'. Gen'l Omnibus Co. 341 Wenlock v. River Dee Co. 860 Ward r. Hobbs 4.53 Wenman v. Ash 81 V. Maryland 129 1 Wennhak v. Morgan 81 TABLE OF CASES. Iv Wentworth v. Buhler PAGE 24t) Wilcox V. Wilcox PAGE 242, 629 r. Day 475 Wild V. Waygood 335 West V. Shuttleworth 634 Wilday v. Sandys 617 V. Smither 280 Wilde V. Jenkins 350 Western Cement Co. v. Jones 310 r. Smith 528 Western Counties Co. v. Lawes Wilder v. Adams 528 Cliem. Co. 94 Wildman v. Wildman 196 Western Elec. Mfg. Co. v. Odell 513 Wiles V. Peck 209 Westervelt v. Gregg 196 Wilhelm v. Hardman 295 Weston's Case 300 Wilkins v. Ellett 644 Westwick ;;. Theodor 317 '•■ Hogg 663 Wetherhee v. Green . 484 Wilkinson v. Adam 263 Wetlierell v. Keith 511 V. Gibson 178 Wetmore v. Carryl 593 Wilkinson's Case 395 V. Kissam 298 Wilks V. Groom 662 V. Parker 376 635 AVillcocks, Ex parte 364 v. Zabriskie 460 Willets V. Green 327 Whalebone, A Lot of 479 Williams v. Arkle 638 Wharton v. Mackenzie 288 c. Armroyd 562 Wheaton v Peters 68 501 V. Commonwealth 65 Wlieeler v. Hatheway 656 V. Fowler 202 V. Howell 628 I'. Hagood 15 V. Roberts 40 V. Hill 86 Whicker v. Hume 587, 634 643 V. Holdredge 85 Whispell V. Whispell 169, 185 189 V. Hughes 610 Whitaker, In re 309 i: Hutchinson 234 Whitaker v. Wright 665 V. Kent 199 Whitconib i'. Joslyn 294 V. McClanahan 484 White, Ex parte 109 V. McKay 391 White V. Branch 294 V. Mo. K. & T. R. R. Co. 377 V. Cotzhausen 564 r. N. Y. Cent. R. R. Co. 427 V. Crisp 441 v. Planter's Ins. Co. 369 V. Ditson 664 r. Pullman Car Co. 337 V. Greenhow 381 (■ Storrs 254 V. Howard 633 V. Thorn 223 V. Lee 528 V. Tyley 693 V. Mann 235 r. Weber 109 V. NichoUs 88 V. Western Union Tel. Co. 409 r. Ross 225 V. Williams 164, 165, 172 18.3, 187 V. Wager 210 188, 455, 648, 662 V. White 187 Williamson v. Codrington 264 I'. Wood 221 Willimantic Thread Co. v. Clark Whitehead r. N. Y. Life Ins. Co 211 Thread Co. 540 Whiteley v. Pepper 341 Willis r. Bernard 231 Whitfield V. Clemment 625 V. Oregon Ry. & Nav. Co. 332 V. So. East. Ry. Co. 368 V. Sharp 659 Whitmarsh i-. Hall 295 V. Willis 309 Whitmore v. Whitcomb 319 Willison i\ Patteson 138 Whitney v. Dutch 293 Willox i: Rhodes 610 Whitney Arms Co. v. Barlow 358 Willson V. Smyth 204 Whittaker, In re 657 Wilmerding v. McKesson 663 Whittemore r. Cutler 508 531 Wilmington v. Macks 435 Whittingham r. Ideson 450 Wilmington R. R. Co. v. King 1.38 V. Mundy 293 Wilson, Ex parte 579 Whitwell V. Wells 441 Wilson V. Babb 261 Widgery i'. Tepper 193 V. Brownsmith 609 Widmer v. Greene 490 V. Ford 202 Wigg V. Nicholl 635 V. Garrard 238 v. Wigg 629 V. Goit 87 Wiggett V. Fox 3.30 v. Holt 159 Wightwick V. Lord 617 ,618 V. Kearse 294 Wigmore '•. Jav 330 , 332 V. Lawrence 212 Wilby V. Elston 86 V Maddison 6.56 Wilcocks V. Carter 644 V. Merry 330, 332 Wilcox V. Xolze 107 V. Morley 625 V. Roath 293 V. Nasoa 487 Ivi TABLE OF CASES. Wilson V. O'Leary V. Simpson PAGE 613 Wright V. Leonard PAGE 287 531 V. Lond. & N. W. R. R Co. 349 V. Stewart 346 V. Miller 299 V. StoUey 527 V. Paige 84 V. Wilson 170, 217 V. Saddler 135 Wilson's Appeal 603 V. Sanderson 591 Wiltsie V. Shaw 628, 629 V. Tallis 493, 494, 503 Winans v. Peebles 210 V. Tuckett 618 Windland v. Deeds 848 V. Wright 154 Windsor, In re 113 Wright's Trusts, In re 258, 259 Windsor & Annap. Ry. v. Queen 3 Wuesthoff V. Ger. Life Ins. Co. 273 Wing V. Anthony 522 Wurts V. Hoagland 75 Winscom v. Winscom 168 Wyatt V. Barnard 491, 497, 504 Winsor v. The Queen 64,65 Wydale, The 253 Winton v. Winton 165 Wyllie V. EUice 272 Wirtz V. Eagle Bottling Co. 551 Wynch v. Wynch 656 Withers v. Buckley 426 Wyndham v. Ennismore 244 Wolcott V. Hall 92 Wynehamer v. The People 432 440 Wolfe V. Howes 325 Wynkoop v. Wynkoop 454 AVoUensak v. Reiher 523 Wong Yung Quy, In re 434 Wood, In re 103 Yale V. Dederer 206 ,209 221 Wood i\ Ash 450, 482 Yale Lock Mfg. Co. v. Berkshire Nat. V. Mather 277 Bank 539 V. Packer 515 V. Greenleaf 514 522 V. Pierson 475 V. Sargent 523 533 540 V. Roane 597 Yarbrough, Ex parte 75 , 102 V. Wood 169 171, 244 Yarrow v. Yarrow 163 Woodall, In re 112 Yearwood's Trusts, In re 174 Wooden Ware Co. v. United States 486 Yeates v. Reed 93 Woodley v. Met. Ry. Co. 330 Yeatman v. Yeatman 187 ,665 Woodman v. Chapman 199 Yelverton v. Yelverton 2.30 V. Met. Ry. Co. 339 Yerger, Ex parte 99 Woodrow V. Coleman 322 Yglesias v. Yglesias 177 Woodruff V. Erie Ry. Co. 358 Yick Wo V. Hopkins 438 V. Logan 319 Yoder v. Mills 508 Woods V. Pangburn 81 Young V. Fernie 516 V. Wiman 88,90 V. Grau 572 AVoodward v. Washburn 344 V. Macrae 94 Wooley )'. Campbell 487 V. Miller 83 Woolnoth V. Meadows 84 V. Shickle, &c. Co. 334 Woolsey v. Judd 491 V. United States 470 Worraker v. Pryer 665 V. Wallingford 650 Worsley v. Worsley 177 Younger v. Judah 130 Worth V. Northam 484 Yovatt V. Winyard 493 Wotherspoon v. Currie 543 Wragg, Ex parte 807 Wray v. Wray 102 Zeigler v. Danbury & N. R R. Co. 333 Wren v. Weild 93,94 Zeta, The 479 Wright V. Brown 320 Zimmer v. Settle 217 V. City Council of Augusta 366 Zoebisch v. Von Minden 566 V. C. & N. W. R. R. Co. 434 Zorntlein v. Bram 197 V. Hughes, Assignee 359 Zouch V. Parsons 290 TABLE OF STATUTES. NEW YORK STATUTES. CODE OF CIVIL PEOCEDURE. Sect. Page Sect. 432 379 2020, 2022 450 198, 205, 213 2026 535 91 2028, 2041 648, 550, 551 116 2043 707 379 2045-2047 8-28, 831 232 2048, 2050 1012 167 2054, 2055 1273 221 2065 1651-1659 192 2149-2187 1742 143 2320-2344 1744 142 2330 1745 160 2334 1746, 1747 144 2335 1746-1750 168 2337 1750 144 2339-2344 1752 148 2419 1756 162 2419-2431 1757 167 2420 1758 171 2421-2431 1759, 1760 177 2431 1761 178 179 2472 1762 187 188 2611 1765 189 2624 1769 165 166 2627 1770 167 2647-2653 1771 175 176 266.5-2669 1780 129 379 2668 1781 396 397 2670-2683 1982 397 2685-2693 1785-1796 403 2694-2702 1797-1803 390 2700, 2701 1804 390 397 2706-2748 1810 402 2718, 2719 1843-1860 654 2721 1847 654 2733 1866 604 2746 1899 9 2747 1902-1905 251 2749-2801 1904 78 2821-2850 1977-1981 132 2838-2841 1991 95 2842-2850 2008-2066 95 2851-2860 2015, 2016 95 3082-3115 2015-2066 99 3390-3397 Page 96 97 96 97,99 97 99 99 96 566 306, 310 306 307 307, 309 309 309 402 400 400 402 400 276 587 604 602 602 558 558 646 666 668 668 666 649 654 641 254, 658 558, 658 654 276 276 282 274 477 376 Iviii TABLE OF STATUTES. CODE OF CRIMINAL PROCEDURE. Sect. 340, 341 392 814-826 827-834 838 Page Sect. 66 899 232 899-913 78 914 109 921 262 Page 205 235 256 205 PENAL CODE. 18 24 206-210 279 281 282 284-286 287-293 298-302 302 317 303 304-371 206 383 79 441 303 640 144 655-669 250, 301 700, 701 250 708-710 237, 301 713 148, 149 728 145, 263 887 118 554 437 481 481 453 303 78 303 40 301 NEW YORK EEVISED STATUTE Part II., Chap. I., Tit. II. Art. 3 (Powers) Part II., Chap. VI., Tit. VI. Revised Statutes, 695, § 1 718, 719 721, § 19 723, § 15 723, § 16 726, § 39 728, § 55 753, § 14 754, § 19 754, § 22 754, §§ 23-26 773, §'l 774, § 5 57, §1 57, §3 57, §4 60, § 21 (3d ed 60, §30 (6th ed.) 602 63, § 40 590 64, § 42 592, 593 Page 463 558 34 271 132 133 466 236 133 265 265 134 641 630 236 297 372 133 224 2 Revised Statutes, 64, §§ 43, 44 Page 595 596 596 614 598 297 641 198 161 148, 160 242 272 319 651 645 467,' §§ 66-89 400, 402 701, § 20 78 64, 65, §§ 45-48 65, § 49 66, § 52 67, § 53 75, § 32 97, §§ 76-78 98, § 79 139, §? 5, 7 139, § 6 148, 149 153, §§ 3, 20 154, § 2 447, § 1 449. § 17 Rev. Stat., 8th ed. pp. 2425, 2426 136 " 8th ed. pp. 2601 298 " 8th ed. pp. 2602 200 " 8th ed. pp. 2620-2623 237 TABLE OF STATUTES. lix LAWS OF NEW YOKK. Page Page Colo? 'lAL Laws. 1880, " 800 209 1771, Feb. 16, Ch. 1484 208 1881, " 641 682 1773, Mch. 8, " 1609 208 1882, 1882, " 402,409 " 410 211 430, 558 Laws OF 1884, " 315 424 1787, Ch. 39 95 1884, " 328 563, 564 1788, " 46 11 1884, " 380 118 1799, " 57 78 1884, " 381 198,207, 214, 221 1801, " 65 95 1884, " 438 266, 267 1813, " 57 95 1885, " 380,464 635 1813, " 60 373, 376 1886, " 283 563, 564 1 Rev . Laws, 1813, 62 195 1886, " 409 301 2 " « 368, 369 432 1886, " 593 109 1818, Ch. 277 90 1887, " 24 142 1839, " 350 109 1887, " 462 301 1840, " 80 211 1887, " 503 564 1840, " 318 372 1887, " 537 198, 207, 210 1841, " 261 372 1887, " 692 118 1845, " 11 213 1887, " 703 266, 267 1845, " 115 136 1888, " 294 563 1847, " 183 372 1888, " 454 273 1848, " 200 198, 22.3, 298 1888, " 485 266, 267 1848, " 319 369, 372, 632 1889, " 42 137 1849, " 375 198, 2J5 1889, « 58 266, 267 1850, " 91 211 1889, " 65 660 1850, " 140 31 1889, " 191 632 1850, " 266 266 1889, " 560 237, 301 1851, " 321 213 1890, " 51 198, 205, 206, 213, 219 1853, " 238 604 1890, " 248 198, 205, 213 1853, " 395 372 1890, " 898 237, 301 1853, " 576 200 1890, " 424 376 1854, " 112 372 1890, •' 497 632 1855, " 547 265 1890, " 553 6.32 1858, " 187 211 1890, " 563 373 1860, " 90 198 213 214 1890, " 569 477, 478 1860, " 360 238, 369 632 1891, " 173 286 1862, " 70 211 1891, " 254 477, 478 1862, " 172 198 213 273 1892, " 61 477, 478 1865, " 368 372 1892, " 92 477, 478 1866, " 656 211 1892, " 252 477, 478 1867, " 782 198 1892, " 399 657 1870, " 277 211 1892, " 401 226, 227 1871, " 82 273 1892, " 403 226, 227 1871, " 68 372 1892, " 488 481 1871, " 934 318 319 822 1892, " 594 198, 207 214, 221 1873, " 646 226 1892, " 632 424 1873, " 821 211 212 1892, " 673 237, 301 1873, " 830 266 ,267 1892, " 677 868 1874, " 73 279 1892, " 682 7 1874, " 421 2.38 1892, " 686 452 1875, " 38 136 1892, " 687 863 364, 373 1875, " 79 636 1892, " 688 384 412, 413 1875, " 130 378 1892, " 689 211, 383 1875, " 267 372 1893, " 173 237 1875, " 871 211 1893, " 207 137 1875, " 542 619 1893, " 601 145 1876, " 372 238 1893, " 684 424 1877, " 466 563 189.3, " 686 558, 641 1878, *' 318 563 1898, " 701 873, 686 1879, " 248 211 , 212 1894, " 400 632 1879, " 249 209 1894, " 421 658 1880, " 245 213 ,602 Ix TABLE OF STATUTES. UNITED STATES. UNITED STATES REVISED STATUTES. Sect. 475-496 643 721 751-753 751-766 762-766 914, 915, 916 1116-1119 1418-1420 1956-1908 1993 1994 1999 2165 2165-2174 2168 2172 3051 3187 3194 3332 3466 3893 4386-4390 4395-4398 4883-4885 4886^ 4892, 4893 4894, 4895, 4896 4897 4898 4899 4900 4902 4909, 4910 4911-4914, 4915 4916 4917 4918 4920 Page 516 100 22 100, 102 101 124 23 296 296 481 72, 126 128, 133 189 126 127 127 126 556 558 559 556 564 57, 118 453 481 524 507, 509, 511, 538 510, 538 521 524 525, 538 526 526, 538 538 512 523 524 522 521, 522 523, 536 537, 538 Sect. Page 4922 522 4924-4927 525 4928, 4932 525 4952 495, 496, 504 4954 255, 495, 501 4955 502 4956 495, 500 4958 495 4959 495, 500 4962 500 4963 495 4964-4966 495, 505 4967 493, 495 4967-4970 488 4970 505 49V 1 495 4979, 4989 569 4998 569 5014-5017, 5019 569 5021 570 502.3-5028, 5029 570 5044-5046 571 5045 572 5047-5066 571 5067-5071, 5072 572 5073-5075 573 5076-5100 573 5101, 5103 573 5104-5120 574 5112, 5115 574 5117 572 5121-5123 574 5128 563 5270-5276 118 5272 115 5278 114 5278 104 5349-5351 249 Tit. XXXIV. 556 " XXXV. 556, 558 " LXI. (Bankruptcy) 568 UNITED STATES STATUTES AT LARGE. 5 Stat. L. 555 32 22 Stat. L. 215 118 12 •' " 193 32 25 " " 1 485 12 " " 755 58 25 " " 496 111 12 " " 820 470 25 " " 1009 481 14 " " 48 32 26 " " 313 433 15 " " Append. No. 15 470 26 " " 1106 488, 493, 495 21 " " 331 296 TABLE OF STATUTES. Ixi LAWS OF THE UNITED STATES. Laws of 1789, Ch. 20 1797, " 20 1799, " 22 1870, " 230, § 102 1875, Act of Julv 12 1881, Ch. 138 Page 22 564 564 493 57 553 Page 1882, Ch. 378 115 1885, " 353 102 1887, " 340 137 1888, " 1039 118 1891, " 565 488, 493, 495 1893, " 74 523 ENGLISH STATUTES. 20 Hen. III. c. 9 257 259 9 Geo. II., c. 36 374, 634 BEdw.I. c. 4 477 10 " " C.26 568 4 " " Stat. 3 148 21 " " c. 31, & c. 33 568 18 " " c. 1 440 26 " " c. 33 153 17 Edw. II. c. 9 & 10 305 306 28 " " c. 13 568 18 Edw. III. Stat. 3, c. 2 148 1 Geo. III , c. 23 49 25 " " " 1 344 5 " " c. 41 568 25 Hen. VIII. c. 22 145 12 " " c. 11 142 27 " " c. 10 297 12 " " c. 23 568 28 " " c. 7 145 18 " " C.52 568 28 " " c. 16 146 38 " " C.87 645, 646 32 " " c. 1 224, 371, 441 52 " " c. 101 376 32 " " c. 38 146 54 " " c. 96 316 34 " " c. 5 441 3 Geo. IV. , c. 71 453 34 & 35 Hen. VIII. c. 4 567 571 3 " " c. 75 153 34 & 35 " " c. 5 224, 371 4 " (( c. 17, & c. 76 153 37 " " c. 4 634 5 " " c. 83 205 1 Edw. VI. c. 12 148 9 " " c. 14 293 1 " " c. 14 634 9 " '< c. 31 148 1 Mary, sess, 2, c. 1 146 11 " " &1 Wm. IV., c .43 299 1 & 2 Ph. & M. c. 8 146 11 " " " 1 " " c .47 299 1 Eliz. c 1 146 1 Wm. IV., C.40 638 1 " c. 19 376 2 & 3 Wm. IV., c. 92 161 5 " c. 4 316 3&4 " c. 15 495 13 " c. 7 567 3&4 " c. 41 161 13 " c. 10 376 3&4 " c. 103 237-335 14 " c. 11 376 4&5 " c. 22 619 14 " c. 14 376 4&5 " c. 76 234 18 " c. 3 262 5 & 6 " c. 54 145 18 •• c. 11 376 5&6 " c. 59 453 43 " c. 2 238 318 6&7 " c. 114 62 43 " c 4 387 634 7 Wm. [V. & 1 Vict., c .26 586, 587, 591, 43 " c. 9 376 592, 593, 595, 598 IJac. 1, c 11 148 3 & 4 Vict, c. 9 90 1 " " c. 15 567 3& 4 " c. 65 469 21 " " c. 19 567 5& 6 " C.45 495, 497, 499 12 Car. II., c. 24 272 273 6& 7 « c. 94 124 21 & 23 Car. II., c. 10 12, 445, 446 640 6& 7 " c. 96 93 29 Car. II., c 3 445, 446, 586 594 7& 8 " c. 12 496 29 " " c. 30 12 7& 8 " c. 15 335 31 " " c. 2 47 7 & 8 " c. 81 153 1 Wm. & Mary, sess. 2 , c. 2 48 7& 8 " c. 101 .262 5 & 6 Wm. & Mary, c. 8 568 8& 9 " c. 10 262 12 & 13 Wm. III., c. 2 48 8& 9 « 0. 16 867 2Geo. n., c. 20 568 9&10 (( C.93 77, 251 2 " " c. 22 568 11 &12 " 0.43 62 5 " " c. 30 567 12&13 " c. 92 453 Ixii 15 & 16 Vict. 15 & 16 " 15 & 16 " 15&16 " 16 & 17 " 16 & 17 " 10 & 17 " 18 & 19 " 18 & 19 " 19 & 20 " 20 & 21 " 20 & 21 " 21 & 22 " 21 & 22 " 22 & 23 " 23 & 24 " 23 & 24 " 23 & 24 " 23 & 24 " 23 & 24 " 24 & 25 " 24 & 25 " 24 & 25 " 24 & 25 " 25 & 26 " 25 & 26 " 25 & 26 " 27 & 28 " 28 & 29 " 29 & 30 " 29 & 30 " 29 & 30 " 30 & 31 " 31 & 32 " 32 & 33 " S3 & 34 " 35 & 36 " 35 & 36 " 35 & 36 " 36 & 37 " 36 & 37 " 36 & 37 " 36 & 37 " 37 & 38 " 37 & 38 " 37 & 38 " 38 & 39 " 38 & 39 " 38 & 39 " 38 & 39 " 40 & 41 " 41 & 42 " 41 & 42 " 41 & 42 " 41 & 42 " 41 & 42 " TABLE OF STATUTES. c. 12 c. 24 C.54 c. 83 c. 61 c. 70 c. 83 c. 13 c. 43 c. 90 c. 77 c. 85 c. 67 c. 93 c. 61 c. 47 c. 125 c. 134 c. 144 c. 145 c. 86 c. 95 c. 100 c. 114 c. 81 c. 86 c. 89 c. 95 c. 72 c. 87 c. 117 c. 118 c. 131 c. 122 c. 68 c. 70 c. 52 c. 19 c. 38 c. 65 c. 9 c. 12 c. 31 c. 66 c. 47 c. 50 c. 62 c. 12 c. 51 c. 77 c. 85 c. 16 c. 16 c. 18 c. 19 c. 67 c. 73 Page 496 586, 587 62 540 657 306 231, 540 306 158 602 161, 164, 167, 170, 174, 175, 177 262 174, 264 174, 175, 177, 265 148 367 634 163 236 174 148 144 587 163 306 401, 402, 404 77, 251 587 124 303 303 367, 393 205 174, 231 453 113, 114 124 237 262 262 176, 241, 243 163 163, 164, 241, 602 303 200 293 496 124, 125 602, 665 124 478 237, 301, 335 209 177 125 123 43 Vict, c. 14 43&44 43&44 44&45 44&45 44 & 45 45 45&46 45 & 46 45&46 46&47 46&47 47 &48 48&49 49 & 50 49&50 49 &50 51 & 52 51 & 52 51 &52 51 &52 52 & 53 52 & 53 52 & 53 53 & 54 53&54 53&54 64 54 & 55 54 & 55 54 & 55 54&66 65 c. 35 c. 42 C.12 C.41 c. 51 C.22 C.38 c. 40 c. 75 C.57 0.82 c. 14 C.63 c. 27 c. 33 C.37 C.8 0.17 c. 42 c. 60 c. 5 c. 7 0.41 0. 5 0.63 c. 64 0. 15 0.3 c. 65 0. 73 0. 75 0. 11 Page 657 481 335 657 236 481 43 236 495 197, 198. 200, 200, 213, 222 521,536,543, 552, 553 306 198 643, 552 216 4',!6 543, 552 657 495 634 543, 652, 653 478 657 306 306 402 394 554 245 306 634 301, 335 634 Bankruptcy Acts Bill of Rights Companies Act (1862) 401, 402, Companies (Winding-up) Act (1890) Distribution, Stat, of Employers' Liability Act (1880) Extradition Act (1870) Factory Acts 237, Foreign Juris. Act Frauds, Stat, of 445, 446 Habeas Corpus Act Infants' Custody Act Infants' Relief Act Judicature Acts Lord Campbell's Act Lord Tenterden's Act Merton, Stat, of Quia Emptores, Stat, of Settlement, Act of Wills Act 26, 586, 587, 591, 593, 595, 176, 113, 3U1, 586, 241, 82, 77, 257, 568 48 404 402 640 335 114 335 124 594 47 243 293 306 251 293 259 440 48 592, 598 THE LAW OP PERSOi\S AND PERSONAL PROPERTY, BEING AN INTRODUCTION TO THE LAW OF CONTRACTS. BOOK I. THE LAW OF PERSONS. CHAPTER L INTRODUCTORY. A FULL treatment of the subject of Municipal Law would necessarily include a discussion and comparison of the law as it is found in the various States and Territories of the Union, as well as that expounded by the tribunals of the United States. But as the author has designed this work principally for the use of students, he has deemed it most useful for the special subject in hand to state the law upon such subject first as it is adminis- tered in England, using the term " common law " with this sig- nification for convenience ; and then to give such additions and illustrations from American decisions as have seemed most serviceable. The principles of the United States Constitution and the decisions upon constitutional questions where private rights have been affected, have also been discussed. The United States law, so far as it may conflict with a State law, is supreme, and of binding force throughout the country. ^ The great object of law is the creation and enforcement of legal rights. Some writers prefer to regard the subject from a different point of view, and to regard law as a mode of estab- lishing and enforcing legal duties. Whichever view is adopted the result is quite the same, for a right implies a duty and a duty implies a right. It is most convenient to consider the subject from the point of view of rights. 1 Constitution of United States, Art. VL § 2. 1 2 THE LAW OF PEKSONS. The phrase " a right " as here used is not equivalent in mean- ing to the word " right " used adjectively. The former has merely a legal signification ; while the word " right" with its correlative, " wrong," has an ethical or moral meaning. The one is an expression in jurisprudence ; the other, in morals. It is con- ceivable that a person may have a right in law, which in morals would be condemned. The expression, " a right," in the legal sense, includes the legal power of the person in w^liom the assumed right resides to control the actions of others. This power of control is derived from the authority of the state, and is called " a law." A single illustration will suffice. A. is said to own a watch. This statement implies that he can exclude, by the aid of the state, all other persons from the use or enjoyment of it. Another form of statement is, that all other persons are under a duty to abstain from interfering with his right to the watch, and his use of it. A right is secured by a direction or command, or some authoritative expression of the will of the state, which, at the same time, supplies some mode of enforcement of the right. This last element is technically called the " sanction " of the law. In some branches of the law, e. g., public or criminal, the sanction may be punishment ; in others, e. g.^ the civil, it may be prevention or remedy ; again, any act opposing the right may be declared invalid. A striking instance of invalidity as a sanction is found in the constitutional law of this country, which frequently makes void the acts of individuals, or even of States, which are in opposition to a constitutional provision. The general name of the whole group of provisions estab- lished for the enforcement of rights is " remedies " or " pro- cedure." Rights themselves constitute the " substantive law." The whole subject may thus be arranged under two principal heads, — Substantive Law and Procedure. This last branch is called by some writers Adjective Law. The term, a right, as used in substantive law implies, (1) a " person " in whom the right inheres ; (2) a person or persons bound to submit to, or not to interfere with, the exercise of the riglit; and (3) a subject over which the right is claimed. (1) The "person" wlio may claim the right may be either natural or artificial. The term " artificial person " is used to denote a group of individuals who when taken together consti- tute a single " person " in law, such as a corporation ; or it may refer to a natural person who has a representative or artificial character impressed upon him. Examples of the first class are INTRODUCTORY. 3 ordinary corporations, or even States and nations.' Thus the United States may be regarded as an artificial person, and in this character have a right to sue in a foreign court.^ Examples of the second class are kings, bishops, deans, etc. So a foreign prince may bring an action in the courts of another country, not merely in his individual but in his political capacity.^ (2) The " person " hound to submit to the exercise of the right may also be either natural or artificial. It should, however, be remembered that in the actual condition of law, rights may exist .against some artificial persons with no adequate means of enforcement. Thus a State of this country cannot in general be sued in its own courts, and only under very special circumstances in the courts of the United States.* It is a further rule that a foreign state cannot be sued in the courts of this country. This proposition has been held in the English courts.^ The decisions of this class would no doubt be applicable here. Even if a foreign king or sovereign should come into this country, he could not be sued here for acts done by him in his sovereign character at home.^ This exemption from suits only applies to a sovereign prince, and accordingly was not extended to the Khedive of Egypt, who was not deemed to be a sovereign. " (3) The subject-matter over which a right may be claimed embraces the whole domain of law. Briefly, the subject-matter of private law includes the right of the individual to the security and freedom of the person, as well as the power to labor in such manner as he may see fit, and also his property in physical objects and immaterial 1 The Republic of -Honduras v. Soto, contract by the Crown, and it is immaterial 112 N.Y. 310. whether the breach is occasioned by the - The United States of America i'. acts or by the omissions of the Crown offi- Prioleau, 11 Jur. N. s. 792 ; United States cials. Windsor & Annapolis Ey. Co. v. of America v. Wagner, L. R. 2 Cli. App. The Queen, L. R. 11 App. Cas. 607 ; 582. Thomas v. The Queen, L. R. 10 Q. B. 31; 3 The King of Spain v. HuUett, 1 CL Feather v. The Queen, 6 B. & S. 257. The & F. 333. theory of a petition of right seems to * It is somewhat singular that the vari- be that the sovereign power consents to ous American States have not apparently abide by the decisions of its courts ren- adopted the common-law doctrines of " the dered against itself, and that this consent petition of right " whereby the individual may be presumed as a constant thing, so can subject the sovei^eign to the perform- that it is not necessary to show in each ance of obligations growing out of con- case an affirmative act of consent, tracts. This doctrine provides a mode of * De Haber v. The Queen of Portugal, limiting the sovereign power in respect to — Wadsworth v. The Queen of Spain, 16 the invasion of the right of private prop- Jur. 164 ; s. c. 17 Q. B. 171. erty, and is thoroughly well established in '^ The Duke of Brunswick v. The King England. Thus a petition of right will of Hanover, 2 H. L. Cas. 1. lie for damages resulting froni a breach nf " The Charkieh, 2S L. T. N. s. 513. 4 THE LAW OF PEKSONS. products. It also embraces freedom of thought and expression, but all these are to be used in subordination to the general welfare of society in accordance with just and equitable rules. Rights, however, do not present themselves in law as mere abstract propositions. In that aspect, law would be but a sys- tem of philosophy. Rights appear in connection with acts done either by the claimant, or by others who may perhaps dispute the right. It will accordingly become necessary to con- sider the nature of the act done. Questions of intent will arise, or, perhaps, of negligence, accident, or capacity to do a legal act. It is the function of courts to solve these problems, and to determine what the right is, as well as the question whether it has been so attacked or violated in the particular instance as to justify the interposition of the state. The court will not, however, solve a mere abstract proposition. The matter must, in general, be presented to it through the medium of an action in which the one who alleges the existence of a right and its violation by another, must establish his allega- tion, while the person against whom the claim is made is so cited as to have an opportunity to deny or refute the allegations made ag^ainst him. The word person, as used in law, has a technical meaning. It is oiie in whom a right may inhere, and who has a standing (locus standi) in a court of justice to assert it. It is not synony- mous with the word "individual." An individual actually alive, but " civilly '* dead, is not a person in law. In like manner a slave is not a "person," since he can neither have rights in the technical sense, nor assert his "natural rights" as an individual in court. It is now obvious, that a classification of law may be made t© turn upon the various persons to whom legal rules may be applied. If the state or nation is the person in whom the right inheres, or against whom it may be claimed, the matter belongs to the domain of Public Law. If two or more nations are con- cerned, it is a case of International Public Law. In other words, where public persons are concerned, the case belongs to public law; if private persons are involved, the case is one of private law. These distinctions may be much interlaced, as, for instance, if a private individual should become indebted to the state. His liability would in general be the same, in such a case, as if he had incurred a similar obligation to a private person. Public Laiv embraces that whole branch of law in which the state, if the matter came before a court of justice, would appear INTRODUCTOEY. 5 as a party directly interested. It also includes controversies between individuals, iu which doctrines of a public nature are involved so as to be necessarily considered for their solution. Under Public Law may be grouped International Law, Constitu- tional Law, Criminal Law, and Administrative Law. These do not fall within the range of this work except so far as they may incidentally affect private law. Private Law includes all matters in which an individual is interested as distinguished from the state. Its rules may be applied to the state itself when seeking to vindicate a right analogous to that which a private individual might claim. Thus if the United States were to sue in a foreign court to recover property which they claimed was wrongfully detained by an individual, they would be obliged to submit to the rules ordinarily applied to individuals seeking redress in similar cases. So if a public person, e. g., the Khedive of Egypt, were to use a ship for the purpose of trade, it would in the case of collision at sea be subjected to the same rules which would be applied to merchant-men owned by individuals. ^ The subject of International Private Law, Conflict of Laws, or Private Inter- national Law, — several phrases for the same thing, — belongs not to public, but to private law. The scope of the subject is to ascertain the rights or remedies of private persons cither when a contract is made or to be performed in one country, and it comes up for consideration in the courts of another, or an act other than a contract occurs in one state, and is the subject of legal consideration in another.^ The object of this work is to serve as an introduction to the law of contracts ; and upon this subject the general Municipal Law of the States of the Union will chiefly be considered. Municipal Laiv has been defined to be a rule of civil conduct prescribed by the supreme power in the state. The municipal law of a State may be considered as arranging itself under four great divisions. (1) The law of nations as applied to cases arising within the State; (2) The Constitution of the United States and the laws and treaties made under it; (3) The constitution of the State and the construction put upon it by the courts ; (4) The other law of the State not embraced in the preceding divisions, in- cluding the common and statute law. 1 The Charkieh, 28 L. T. n. s. 513. taken in an unnsnal sense. The expression 2 The phrase "International Private " Application of Foreisrn T-aw " seems to be Law," now much in use, is not well chosen, more accurate, though not all that could since the word "International" is to be be desired. 6 THE LAW OF PERSONS. The first two of these divisions will not be considered in this work, except so far as they may incidentally affect State law. Analyzing the definition of municipal law above given, it will be seen that it is, First, a rule, or in other words a direction or command. It must be distinguished from counsel or advice, which has in it no element of compulsion. Law does not originate in a contract, but in an order from the sovereign power. Second, It is a rule of civil conduct. The word "civil" is employed in the definition to distinguish it from a rule of morals or of religion. The object of law is to control the relations of the individual towards society, or of one society or state towards another. Third, It is prescribed. This word principally applies to statute law, to be hereafter explained. The common law is assumed to rest upon customs prevailing among the people. These are from time to time ascertained and announced by the courts. When this announcement is made, the rule is legally regarded as having existed from time immemorial, w-hether it has so in fact or not. This theory frequently imposes a geat hardship upon persons who have made contracts cr performed acts upon a different view of the rule governing the case.i A statute is said to be prescribed when it is sufhciently communicated in any manner to those for whom it is intended. This may be either by oral proclamation, writing, 1 On this account, courts frequently self have come to the same conclusion as refuse to change by decision an existing the judges did in the beginning is inima- and long established rule of law, even terial." Pandorfw. Hamilton, 17 Q. B. D. though it may be incorrect in principle, 670, 674, per Lord Esher, M. E. In being apprehensive that a reversal may be another case this statement is made : " If subversive of rights of property. It is the matter were even doubtful I should wiser in such a case to allow the rule to hesitate very long . . . before I laid down stand, and leave it to the legislature to a different rule of construction in relation introduce a new rule acting only prospec- to sections of the Wills Act which have tively. There is certainly some variety of had for many years a particular construc- expression by judges on this point. Thus tion given to them, because it is impossible in a recent case the court said : "Where to say how many persons may have acted documents are in daily use in mercantile upon the faith that that construction was affairs without any substantial difference correct, and rested the disposal of their in form from time to time, it is most ma- property upon that belief. Of course, if it terial that the construction which was icere clear that the construction put by given to them years'ago, and which has the courts upon the section were tvrong, it from time to time been accepted in the would be our duty, disregarding the result, courts of law and in the mercantile world, to express a contrary opinion." Airey v. should not be in the least alteied, because Bower, L. R. 12 App. Cas. 263, 269. all subsequent contracts have been made This last case was one of the construction on the faith of the decisions. Therefore of a stututc, but still a construction based whether one thinks that one would one's upon common-law principles. INTRODUCTORY. 7 or printing. In modern times it is usual to print statutes either in official journals or specially authorized volumes. It is a fair deduction from this part of the definition that a statute should not, in general, go into effect until a sufficient time has elapsed after its enactment for its provisions to become known. This salutary doctrine was not recognized hy the common law of England. There was a legal fiction that an entire session of Parliament, however long it might be, was to be regarded as a single day. The result was that an act which was not criminal when committed, might become so by a statute subsequently enacted during the session of Parliament which embraced the time when the act was done. This harsh rule is now, in gen- eral, done away with by statute. This is true even in Eng- land. ^ It is, however, in some States still the rule that a statute takes effect from the earliest moment of the day on which it is enacted.^ In New York there is a statutory rule that a law is not to go into effect until twenty days after its passage unless some other time is fixed in the law itself.^ (a) Assuming that this requisite publication has been made, ignorance of the law is no excuse for its violation. Where such ignorance in fact exists, the only relief possible is either a reduction of punish- ment where the court has a discretion in that respect, or an application to the pardoning power. Under this general rule, a man may be criminally liable, though he may believe in good faith that he had a legal right to do the act for which he is arraigned.* Fourth^ The law must emanate from the supreme power in the state. This supreme power is vested in the people, who may parcel out to the legislature legislative power as they see fit. A portion of the law-making power is delegated to the courts through the medium of decisions. It may also be conceded to local bodies, such as cities, villages, or towns. In each of 1 Bonn V. Carvalho, 4 Nev. & M. 893. city where the promulgation of the law is 2 Arrowsraith v. Honimening, Sup. C't. made and the chief town of the Depart- Ohio, 23 Am. Law Reg. N. s. 249, 254 ; nient. A table is annexed, showing the Matthews v. Zane, 7 Wheaton, 164. distances to the chief towns, and the cor- 3 This wise rfile was as to its substance responding days that precede the time borrowed from the French code. The sub- when the law will take effect in each De- stance of the provisions in that instrument partment. In special cases, the law may be is, that laws are to be published in the made to take effect immediately. French official bulletin, and shall go into effect in Civil Code, Preliminary Title, Art. 1, and each Department, except in that where the Ordinance of 27 Nov., 1816. The New government is fixed, one day after official York rule is much simpler and more easy publication, increased by as many days as of application. there are ten " myriametres " between the * Unwin v. Clarke, L. R. 1 Q. B. 417. (a) See in New York, The Legislative Law, ch. 682, Laws 1892, § 43. 8 THE LAW OF PEKSONS. these instances, the true law-making power resides in "the people," who act indirectly rather than directly. There thus arises 'in the United States a great branch of law termed "constitutional law." Much of this consists in checks or limitations upon the power of a State legislature or of Con- •i-rcss to enact laws. This kind of restriction does not prevail in England. There is an important distinction between the legislative power of Congress and that of a State legislature. The power of Congress to legislate is derived solely from a written instru- ment, viz., the Constitution of the United States. Its authority must be found either in the express words of the Constitution, or be reasonably implied from it. On the other hand, a State legislature has the broad power of the English Parliament; except so far as it may be restrained by the United States Constitution or the constitution of the particular State. In this last instance one does not search the respective constitu- tions for a grant of power ^ but only to ascertain what restrictions upon legislation may exist. In a complete system of law, remedies are commensurate with rights. It is a settled maxim that " wherever there is a right there is a remedy," — ubijus, ihi remedium. Remedies are of various sorts. In courts of equity they are mandatory, preven- tive, specific, or in other form adapted to the exigencies of the case. In courts of common law they either restore the possession of a specific thing to one entitled to it, or give damages to the injured party. These damages are either compensatory or vindictive. For the most part, they are com- pensatory, the prevailing principle being to give the claimant- just so much moftey (and no more) as is equivalent to the value of his violated right. In a few instances damages are vijidic- tive. In this case, the court assumes to punish the violator of a right by awarding more than compensatory damages to the injured party. Though this principle is not logical, it works well in practice in special cases where the criminal law is defective; as, for example, in cases of fraud, wanton violation of personal rights, etc. A special fact must be noted as applicable to certain acts of a wrongful nature which may injure a particular individual, and at the same time be harmful to the public. So far as it injures an individual it is termed a tort;^ so far as it harms the public, it is a crime. In one aspect, it is a violation of private law; 1 French tort, — from the Latin torqueo, torticm, — a thing twisted out of order or line. INTEODUCTORY. 9 in the other, of public law. In the one case, redress is sought in the name of the party injured ; in the other, in the name of the state or of the people. Any money recovered in the private action belongs to the party injured; any fine exacted for the criminal act regularly belongs to the public treasury. By the common law, it was the rule that a civil action was suspended until a criminal proceeding for the same wrong was ended by a conviction of the offender. This rule was based upon public policy as tending to make the execution of the criminal law more efficient. There is a strong tendency in modern legislation to do away with this distinction, and to allow the two proceedings to be carried forward at the same time. ^ 1 N. Y. Code of Civ. Pro., § 1899. The language of the section is that where the violation of a right admits of a civil and also of a criminal prosecution, the one is not merged in the other. See also Gordon v. Hostetter, 37 N. Y. 99. This section is quite inaccurately expressed, since it is not the case of the violation of one right, admitting of two prosecutions, but of two distinct rights, the one private and the other public. CHAPTER II. THE SOURCES OF THE LAW. The sources of American law must for the most part be sought in English law. The early colonists, having come from a country with a settled system of law, naturally made use of rules and principles with which they were familiar, at the same time rejecting any that were inconsistent with the changes in their institutions produced by the American Revolution or other causes. On their separation from the mother country, they found it necessary to make definite provision as to the relation of the law in each State to the English law. The provisions adopted in New York will serve as an illustration. In the 35th Article of the Constitution of 1777 of that State it is ordained that " such parts of the common law of England and of the statute law of England and Great Britain, and of the Acts of the Legislature of the Colony of New York, as together did form the law of the said colony on the 19th day of April in the year of our Lord one thousand seven hundred and seventy- five " (date of the battle of Lexington) "shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. " ^ (a) There are but few instances in which the courts of New York have decided that an English statute was so fully adopted as law during the colonial period, as to make it a part of the gen- eral law of the colony, within the purview of the constitutional provision just cited. A striking instance is that of statutory restriction on the power of religious corporations to sell their real estate. These restrictions, found in the statute of 13 Eliz. c. 10, and later acts, were tacitly adopted in the colony, and still prevail.2 But in "general, English statutes were repealed, 1 The rules adopted in otlier States are - ^L A. Baptist Chnroh v. Baptist collected in Bishop's First Book of the Church in 0. St., 46 N. Y. 131-141, 142, Law, § 58, note 4. and cases cited. (a) See Constitution of the State of New York, Art. I. § 17. THE SOURCES OF THE LAW. 11 though a number of them were re-enacted, with some changes, either in form or substance.^ English law of the date fixed by each State is accordingly to be studied as American law.^ An exception must be made as to the State of Louisiana, The civil but not the criminal law of that State is embraced in a code based upon the Code Napoleon of France. The law of England and of the United States, in reference to its origin, is divided into two great divisions, — common law and statute law. The latter is enacted by Parliament in Eng- land, and in this country by Congress, or by State legislatures. The former is said to depend upon custom existing from time immemorial. It is announced from time to time by courts, as cases present themselves for adjudication. The courts also have much to do with statutes and constitutions, applying com- mon-law rules of interpretation and construction in ascertain- ing their meaning and giving them due application. The prime distinction between statute and common law is, that the for- mer has its origin in legislative enactment, while the latter is assumed to originate in custom, and to obtain authenticity from the decisions of courts. The law of any State of the Union may be said to consist of four parts : (1) Such rules of the law of nations as may be applicable to it separately from the general government; (2) the law and Constitution and treaties of the United States ; ^ (3) the constitution of the State ; (4) the ordi- nary municipal law of the State. DIVISION I. — Common Law. This expression has in law two meanings : one is that already given as contrasted with statute law ; the other is a narrower sense in which certain legal rules are contrasted with other legal rules having no statutory origin, e. g.^ common laiv as contrasted with equity. The wider signification is mainly adopted in this chapter. I. Equity. — In the early history of English law, equity had little or no place. The legal business of the people consisted 1 The New York statute repealing the lished between the years 1765 and 1770. English statutes is eh. 46 of the Laws of They therefore supply a summary of the 1788, § 36. Its language is, "From and law as it was adopted by the American after May next, none of the statutes of colonies at the time of the Revolution. England or of Great Britain shall operate ^ Hawenstein v. Lynham, 100 U. S. or be considered as laws of this State." 483, 490. 2 Blackstone's Commentaries were pub- ■^2 THE LAW OF PERSONS. mainly in litigation involving title to the various estates in land, the redress of injuries to the person, etc. Only simple remedies were needed for these purposes. As society advanced, and business became more complex, the scope of law required enlargement, and new remedies were necessary. The introduction of trusts, whereby the ownership in property was divided so that one person had the formal ownership and another the beneficial enjoyment, led to new legal principles. There were no methods known to the ordinary courts for the enforcement of such rights. A new set of tribunals came grad- ually into existence known as courts of "equity." A lead- ing one of these was held by the Lord High Chancellor, who presided in the Court of Chancery, — a high court of equity jurisdiction. These courts are largely governed by special rules worked out by precedents or decisions. Nothing is arbitrary, or merely the result of reasoning on ethical rules. The whole subject has become a matter of legal science, and must be studied in the reports of caSes and in treatises on equity jurisprudence. II. The ^oman or Civil Laiv as used in the Admiralty, Eccle- siastical, and Military Courts. — The Roman law, although pre- sented in modern times in a codified form, is not to be regarded as statutory law. The term " statute " can only be applied to law enacted by the legislature of the State where the law prevails. If any State tacitly or by judicial decision adopts the statute of another State, it is taken into the law of the adopting State as part of its common law. The Roman law has influenced English jurisprudence in a variety of ways : first, by furnishing a storehouse of principles from which the ordi- nary courts (law and equity) could draw, where their own rules were insufficient or imperfect; and again by supplying a whole body of law for special courts, viz., admiralty, ecclesiastical, and military ; and finally, by the suggestion of appropriate and reme- dial legislation. An instance of the latter is the statute for distributing the personal property of intestates, passed in the reign of Charles 11. , and of general prevalence throughout this country. ^ A sketch of the Roman law, though very brief, will accord- ingly be useful. This system, like all other permanent systems of jurisprudence, had an historical development. Commencing practically with the rude rules laid down in the Twelve Tables, it had expanded by legal adjudication and the written opinions 1 22 & 23 Car. II. c. 10 ; explained by 29 Id. c. 30. THE SOURCES OF THE LAW. 13 and treatises of learned jurists, into a great and complicated mass of rules. It therefore became highly desirable to have its leading rules arranged in systematic form. In the meantime the empire had become divided into its Eastern and Western divisions. The most successful digest of the law, and that which has left its chief impress upon modern jurisprudence, was made in the Eastern empire under the direction of the Emperor Justinian, about the year a. d. 530. The Pandects went into effect in the year a. d. 533 (Dec. 30th). The Roman law, as then arranged, consisted of two principal parts, — the Pandects, otherwise called the Digests, and the Institutes. The Pandects or Digests. — The great result to be achieved in forming the Digests was to make extracts from the writings of the jurists of highest repute, and to classify these extracts with the name of each author attached, in fifty " books " or divisions. This work was designed for legal practitioners. Its arrangement followed existing methods then in use, viz., the praetor's edict. Extracts were made, from the works of thirty-nine jurists. It happened that these writers, in some instances, contradicted each other. It was the province of the emperor > when these contradictions were called to his attention to settle ihe question by special decision. Some of these decisions remain. The Pandects are the principal source from which the civil or Roman law is derived, as its principles now prevail on the continent of Europe. They are readily accessible, not only in the original Latin, but in French and German translations.^ The Institutes. — These were also prepared under the direc- tion of Justinian for the use of students. There was already in use by Roman students for the same purpose a work of great value, "Institutes of Gains." Gains was a jurist of remarkable merit. His work, having been published several hundred years before that of Justinian, had become in part obsolete. Justinian did little more than prepare a new edition of Gaius, with the obsolete portions omitted. It may be said, in conclusion, that "Justinian's work bears much the same relation to the Institutes of Gaius, as do the commentaries of Sergeant Stephen to those of Sir William Blackstone."^ The work of Gaius was long supposed to be wholly lost. It was, howevei", discovered in 1816 by the great German histo- rian, Niebuhr, at Verona, Italy, in a palimpsest, the epistles of 1 Select titles from the Piuiclects were University, Eng., by Professor Holland published at the Clarendon Press, Oxford and C. L. Shadwell, Esq., in 1881. 2 Professor Holland. 14 THE LAW OF PEESONS. St. Jerome being written over it. It lias since been fully deciphered, and has shed great light on some perplexing features of Roman jurisprudence. ^ The "Institutes of Justinian" is the more important of the two works to the ordinary student, as forming a portion of the corpus juris civilis, — " body of the Eoman law. " There has been in England a great revival of interest in this class of studies, and the Institutes have been reprinted a number of times within a few years past in such a form as to be useful and accessible to students.''^ The New Code and Novels. — There had been a code contain- ing imperial ordinances published a. d, 529. After the publica- tion of the Institutes and Pandects, Justinian thought it desirable to have this code revised, and his decisions settling controverted points in the Pandects included. This was accomplished in the year 534. This branch of the law resembles what is now called statute law, and stands in contrast with the Pandects, which bear strongly upon their face the marks of legal discussion and the successful tracing of rules to principles. The Novels consist of such ordinances as the emperor made in the intervening years between 535 and the close of his reign (a. d. 565). They are frequently subversive of former rules of law. They were issued from time to time as exigencies might require, and were never officially collected by him. Numliers of them were brought together and published after his death. They are not of much value to the modern student except as matter of history.^ The Relation of the Roman Law to the Admiralty, Ecclesiasti- cal, and Military Jurisprudence of England. — The Roman law had but slight influence on the common law of England as administered in the superior courts. It was, however, different with the special tribunals having in charge maritime and mili- tary questions, the probate of wills of personal property, the 1 Professor Gneist of Berlin has pub- the original, with a careful English trans- lished the " Institutes of Gains " in tabular lation and many valuable notes. (Claren- form, so that their corresponding passages don Press, Oxford, Eng., 1883.) Reference and differences may readily be noted. A may also be made to Sandars's Justinian, similar publication with English transla- ^ The student may find a good sketch tions was made in 1882, by T. Lambert of Roman law by Mackeldey (Dropsie's Mears, Esq. (Stevens & Sons, London). Ed. 1883). Ortolan's History is also very See also Holland's" Institutes of Justinian, useful. The German writers must be re- Edited as a Recension of the Institutes of sorted to for a complete mastery of the sub- Gains." Oxford, 1881. ject. Puchta's Institutionen is a work of 2 The recent work of J. B. Jloyle, Esq., high merit. Professor Bryce, of Oxford, has of Lincoln's Inn, is strongly recommended prepared an excellent article on Justinian to students. It contains the Institutes in in the EncycIo[i£edia Britannica (9th ed.). THE SOURCES OF THE LAW. 15 distribution of the estates of intestates, and matrimonial causes. The three last named topics were regarded as " ecclesiastical " questions, being determined by the bishops in their courts, or by their deputies, e. g., surrogates. A great body of law has thus grown up, which in England was formerly termed ecclesias- tical law, and usually in this country probate law, testamentary law, and, in respect to marriage and divorce, matrimonial law. These subjects will be considered hereafter under appropriate divisions. Questions arising at sea are mainly governed by maritime or admiralty law. They were at first in England disposed of by a high officer termed the Lord High Admiral. By him they were assumed to be delegated to a judge in admiralty. A separate set of rules grew out of his decisions, which, when grouped together, are called "admiralty law." The rules of the Roman law had much influence over each of these subjects. So far as these principles grew up by judicial decision they are in force, not because they are Roman law, but because by custom or judicial decision they have been incor- porated into the common law, and have thus become a part of it.i III. Reports as Depositories of Rides of Laiv. — It is a well set- tled rule of law that legal principles are to be evolved by " cases " or controversies submitted in regular form to courts of justice. A court will not pass upon a mere abstract question of law.^ Just complaint could be made by suitors if legal rules were not derived from regular proceedings in which there could be discussion, trials, and appeals. In the time of Charles I., Pym complained of " extra-judicial judgments and impositions of the judges without any causes before them, whereby they have anticipated the judgment which is legal and public, and circumvented one of the parties of just remedies^ in that no ivrit of error lies, but only upon judicial proceedings.^^ ^ It is well to state at the outset the difference between a 1 It has been made a question how far organized. Divorce jurisdiction was tlius the ecclesiastical law of England became made to rest wholly on statute. It was, by adoption a part of the law of the Amer- however, held in Brinkley v. Brinkley, 50 ieau States. It was believed in Burtis v. N. Y. 184, 190, that if by American stat- Burtis, Hopkins R. 557, that the English utes any part of the ecclesiastical jurisdic- law concerning divorces and causes of tion was given to our courts, the settled divorce as it existed while New York was principles and practice of those tribunals a colony, is " chiefly the ecclesiastical and became a gnide for our courts, not the common law of that country," and ^ Williams v. Hagood, 98 U. S. 72. was no part of the common law which the ^ 3 Rushworth's Historical Collections, colony adopted, nor the State after it was 1135. IQ THE LAW OF PERSONS. " record " and a " report. " A record has been defined to be an authentic testimony in writing contained in rolls (formerly of parchment) preserved in a court, thence called a court of record. In these rolls are contained the judgment of the court on each case, and all the proceedings previous thereto. It is, therefore, a history of the case. Legal principles, though involved in a judgment, are not explained or stated in the record. The report, on the other hand, contains a statement of the facts in controversy sufficient to elucidate the principle, usually, though not uniformly, an abstract of the arguments of counsel, and the reasoning and conclusion of the court set forth formally in an "opinion." The report thus serves to explain the record. At the same time the record may be resorted to with a view to test the accuracy of the report, or for the purpose of ascertaining the precise point involved, and necessary to be decided in order to dispose of the case. It is a general rule of law, subject to important exceptions, that when a case has been adjudicated, particularly in the higher courts, and another case arises with similar facts involving the same principles, a like decision is to be made. In applying this rule it should be carefully noted, whether the facts in the two instances are substantially the same. The absence or presence of a fact either found or not found in the former case, may render the earlier decision inapplicable. The rule of law thus becomes so closely connected with the facts that it is difficult to state it in abstract form, although it is true that many elementary rules can be presented in a precise form so as to have a very wide application. A distinction may be made at this point between a mere rule of law and a maxim. A rule prescribes a definite course of action, as that a deed must be written on paper or parchment, or that a negotiable note must be payable in money and not in goods. A maxim, on the other hand, is a generalization or abstract proposition, prescribing no definite course of action, but is rather a principle to which a class of acts must conform. Some of the leading legal maxims are these : " So use your own as not to injure another. "^ "No one shall profit by his own wrong," etc. They have been well classified by Mr. Broom in his work on Legal Maxims. Maxims have had great influence upon the administration of justice in courts of equity. They are collected in the standard works on equity jurisprudence. ^ In Latin, Sicuteretuo,utnonalknum stances deprecated the use of maxims, ex- laedas. A judge of distinction now on cept in a very cautious manner, the English Bench has in a number of in- THE SOURCES OF THE LAW. 17 Recurring to the decisions of the courts, further reference should be made to them considered as precedents. The general subject of precedents, both in politics and law, has been well dis- cussed by Dr. Lieber in his work on Legal and Political Herme- neutics.^ Here we have only to consider them as resorted to in law. It is essential to the due administration of justice that precedents should be followed unless there is some convincing reason to the contrary. It is only in this way that the law can be developed into a science. By means of this principle, a system of jurisprudence may be made to consist of a method- ical collection of the principles involved in the decided cases. Still, many authorities are overruled by later decisions as not being founded on solid grounds, or as highly inconvenient in practice. Sometimes cases without being absolutely overruled are disapproved, criticised, or limited in their effect, or distin- guished from the case in hand. For a knowledge of these instances, reference may be made by the student to Green- leaf's or Bigelow's Overruled Cases. Modern digests usually contain tables of this class of cases, embracing all such criti- cisms as have been made during the period covered by the digest. It accordingly becomes necessary to apply fixed rules with the view of determining the value of a reported case. The following tests may be suggested as useful. (1) Inquire by what tribunal the case was decided, whether upon argument before a full court (also called " in bank " or "in banco," or by the full bench), or by a judge at a trial with a jur}', etc. Decisions made by a judge with a jury are termed "Nisi Prius " decisions,^ and are in general of but little weight, though the high reputation of particular judges sometimes gives them authority. They are more frequently reported in England than in this country. ^ (2) Inquire whether the case was fully and thoroughly argued by counsel. The value of a decision greatly depends upon the preparation of the case made by the respective counsel. It can scarcely be expected that a court perhaps crowded with business will make an independent investigation of the case. It is in general true that the decision is of no higher grade than the argument. Many cases are overruled for this reason, as a later ^ 3d ed. , by William G. Hammond, plained in full in Book III. of Blackstone's LL.D. , St. Louis, 1880. Commentaries. 2 " ^^7.J^ Prius" is a technical term, ^ Instances are the Eeports of Camp- derived from the old writs in Latin, bell, Espinasse, Carrington & Payne, whereby judges were designated by the Carrington & Marshman, Carrington & king to hi)ld the trial court. It is ex- Kirwan, and Foster & Finlason. J 8 THE LAW OF PERSONS. and more thorough discussion shows the weakness of the grounds on which the overruled decision was placed. ^ (3) Next consider what judges held the court. Some judges have acquired such a high distinction for judicial ability that their judgments have an influence derived from their reputation. It may.be in some instances that a particular judge has acquired a o;reat reputation for acquaintance with a special branch of the law. This fact makes his decision of high value, and gives it much weight with other courts. (4) The next inquiry is as to the grade of the court disposing of the case, whether it be inferior or a court of last resort. Referring to the English courts for illustration, it may be men- tioned that there is in the outset a hearing by a court in the first instance, then a review by an appellate court, and perhaps a further review by a still higher and final appellate court, viz., the House of Lords. Similar schemes are adopted in the respective States of this country as well as in the United States courts. The courts may thus be classified into inferior and superior courts. As each of these courts has or may have reported decisions of its own, this distinction in tribunals must be attended to. Due subordination requires that the decisions of the appellate court should control those of the inferior court. Accordingly the decisions of the Court of Appeals in New York would be controlling on the Supreme Court, a subordinate tribu- nal. This is to some extent an arbitrary rule, and would prevail, notwithstanding that it could be shown by argument that the Supreme Court was right. The decision of the appellate court by its superior grade binds the inferior court as a matter of mere authority. (5) The next inquiry is as to the intrinsic merits of the report itself. The ordinary and regular course is for a reporter to prepare a syllabus to be prefixed to his report containing the substance of the principles decided, as well as a statement of the facts to which the rule was applied. A reporter may and often does err, both in stating the points actually decided, and in omitting to notice some of the propositions passed upon. The syllabus is not to be trusted except as an index to the report, which should itself be consulted. There is a special source of error in the older reports. The 1 Important cases in the early reports courts, and the rule then laid down was were only decided after great and exhaus- never disturbed afterwards, though vehe- tive discussion. In the famous case known mently assailed from time to time by some as " Shelley's Case" the discussion occu- of the ablest counsel in England, pied many days before a series of high THE SOUECES OF THE LAW. 19 reporters took notes then of what the judges said from the bench, and the art of shorthand writing being not acquired at all, or only imj^erfectly, the report is frequently inaccurate. There are in some instances several contemporaneous reports which may be resorted to for comparison.^ The courts in this country at the present time, for the most part, prepare written opinions and hand them to the reporter, whereby this source of error is in the main avoided. (6) Distinguish between what is decided and what is said by way of argument or illustration. Remarks of this latter kind dropped, as it were, by the way, are called dicta or obiter dicta, and have no force as precedents, though in course of time they may ripen into authority. These dicta are commonly indicated in the report by the word " Semble " (Norman-French), meaning " it seems, " which is the modern equivalent used. The reporter indicates that the point has been actuall}^ decided by the expression, '■^ Held.'''' (7) There is a distinction between cases considered on the one hand as binding upon a court and on the other as arguments upon which another decision may be based. In the one case the court having a case in hand is controlled though not convinced ; in the other, the court regards the prior decision simply as an element in reaching a conclusion. On this point some rules are to be noted. Rule 1. — The decision of an appellate court is in general bind- ing on a subordinate court as establishing a principle for its action when a similar state of facts is presented. This rule is not applied to all appellate courts, but only to those having the power to review the decisions of the subordinate court in ques- tion. For example, the tribunal in England called the "Judicial Committee of the Privy Council " is the final court of Appeal from the decisions of certain tribunals, but not from the judg- ments of the Queen's Bench, which is subordinated to the House of Lords. Accordingly it has been ruled that the decisions of the Judicial Committee are not binding on the Queen's Bench, though they are to be regarded with the greatest respect. ^ 1 A work called " Repertorium Juridi- 380. It has been further said that though cum " is useful in finding the older con- they may not be theoretically binding, it temporaneous reports. Published by B. is A/gr/J// 7«!(fes?'mZ)?e, in cases of mercantile Nutt in 1742. It begins with Edward and admiralty law coming from colonies I., and is said to contain forty thou- professedly following the English law, that sand cases. The object of the index, as there should be any conflict of decision stated in the preface, is to find all the between that court and the court of ap- books in which the same case is printed, peal for other cases. The City of Chester, though by different names. L. R. 9 P. D. 182, 207. 2 Leask v. Scott, L. R. 2 Q. B. D. 376, 20 THE LAW OF PERSONS. R„le 2 — A decision is also in general binding on the very court which renders it. If this were not so, the law would be uncertain and scarcely worthy of the name of a science. This doctrine is followed with great rigor by the English House of Lords, which only in very extreme cases refuses to follow a former decision, preferring to leave the rule, if unsound, to be remedied by Parliament. Upon this principle, a judgment of a lower court is held to be affirmed when there is an equal division of opinion among the judges of the appellate court. ^ The courts in this country are not so rigorous. The Supreme Court of the United States has in a number of instances aban- doned a rule once established by it, and announced a different one, and the same is true of State courts. Still the general rule remains, that a case once recognized as law, and as a part of the jurisprudence of the State, though decided by a subordinate court, should not be overruled even by an appellate court without good reason. A rule on this subject has been recently stated in the following terms : " There are two classes of cases which must be distinguished. Where an old case is contrary to the principles of the general law, the court of appeal ought not to shrink from overruling it even after a considerable lapse of time. But when an old decided case has made the law on a particular subject, the court of appeal ought not to interfere with it, because people have considered it as establishing the law, and have acted upon it."^ The difference between the position of the House of Lords and that of the Supreme Court of the United States in retracing a step once taken should be noted. If the House of Lords adheres to a wrong decision once made, the inconvenience sustained by it can be remedied by act of Parliament. But if the Supreme Court has put an erroneous construction upon the United States Constitution and adheres to it after the error appears, it cannot be rectified except by an amendment to the Constitution, which it is almost impossible to obtain. This fact might lead the court in a plain case to overrule a former decision which other- wise might produce lasting evils in the administration of public affairs. Assuming that this line of reasoning is justifiable, it should be resorted to only in urgent cases where the conse- quences of overturning the former decision would be plainly less ^ The rule then applied is, Semper vided vote the judgment of a lower court praesumihur pro negante, or '"he who that there cannot at common law be a valid holds the affirmative must establish it." marriage without a priest. An illustration is The Queen v. Millis, 10 - Per Jessel, M. R., in Smith v. Keal, CI. k F. 534, affirming by an equally di- L. R. 9 Q. B. D. 340, 352. THE SOURCES OF THE LAW. 21 harmful than the effect of the decision itself. It has been held that a decision, not in harmony with previous decisions, overrules those with which it is in conflict, whether these are commented on or not.^ Rule 3. — Decisions of courts of sister States are not authority, but merely arguments. The same is true of English decisions, unless they have become part of the common law of the State by adoption, and also of decisions of the Supreme Court of the United States, upon questions not arising out of the Constitu- tion of the United States, or of the treaties and laws made under it. The rule also applies to co-ordinate courts in the same State or country. Where the English law is adopted in a particular State, as of a particular day, e. g., April 19, 1775, (as it is in New York,) the decisions of the English courts prior to that time become part of the adopted law, and are made binding on the courts by the act of adoption, though subject to change by the legislature. Later judicial decisions in England are substantially made by the courts of a foreign state, and are simply entitled to respect according to their merits. A similar rule prevails in England as to the value of American decisions. It has been lately said there in substance that the English courts do not regard American decisions as authorities, but only as guides. They will have regard to the reasons given by American judges, so far as they do not conflict with decided law in England. 2 j^ule 4. — A Federal decision is sometimes binding in a State court as authority ; at other times only as an argument. The United States Constitution provides ^ that the Constitution itself, the laws made in pursuance of it, and the treaties made under the authority of the United States, shall be the supreme law of the land, and that the State judges shall be bound by them. The Supreme Court of the United States is the final interpreter of the Constitution and the laws made under it. It follows that its decisions upon these subjects are binding on the highest State courts. In other cases, the decisions of the United States courts are no more than guides or arguments in the State courts. For example, the disposition of a question of commercial law will be treated with respect in discussion in a State court, but in the end will not necessarily be followed- In this way it has frequently hap- 1 Asher v. Texas, 128 U. S. 129. ^ Art. VL 2 Cory V. Burr, L. K- 9 Q. B. D. 463, 469, 472. 22 THE LAW OF PERSONS^ pened that the decisions of the Supreme Court of the United States have been opposite to those of a State court,, each court persisting, on a reconsideration of the question involved, in its special view.^ The effect of State decisions in the Federal courts is a some- what complicated subject growing out of the delicate relations of the States to the Federal government. Many cases go into the United States courts solely on the ground of the different citizenship of the respective parties to the action. It would make the jurisprudence of the country intricate and highly uncertain, if in all such cases, the respective tribunals should take independent and perhaps conflicting views, so that a right which was recognized in the State court should be denied in the Federal Court or vice versd.'^ An act of Congress of 1789 ^ (a) provided " that the laws of the several States except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rnles of deci- sion in trials at common law in the courts of the United States, in cases where they apply." Under this statute, the rights of pei-sons and rnles of property as settled in the States are, in general, guides to the courts of the United States in legal controversies.* The general object of the provision was to make the rules of decision in the courts of the United States the same as those of the States, though subject to some exceptions to be hereafter stated.^ This statute does not adopt by anticipation the changes in process and proceedings which may from time to time take place in the States.^ It is a general rule that the Federal courts, in interpreting and construing the statutes and constitutions of States, follow any settled meaning placed upon them by the highest court of the State where they are enacted or adopted. As to statutes^ this rule is announced in a great number of decisions.'' 1 Jinny cases of this kind are eollected ^ Q]^^ 90, § 34. in Holt's Concurrent Jnristlictioa of tbe ^ Uuiteti States v. Wonsoia, 1 GalL Federal and State Courts. (New York, 5, 18. 1S88.) 5 MeNiel v. HoForook, 32 Pet. 84. 2 In Knowlton i?. Congress & Empire ^ Bank of United States v. Halstead, Spring Co., 57 N. Y. 518, the Xew York 10 Wheat. 53. ivnpellate court decided a question, where- '^ Mutual Assurance Society v^ Watts, ?i[.on the case was removed into a Fetleral 2 Wlieat. 27& ; Shipp ». Miller's Heirs, 2 court, and the Supreriie Court of the United Id. 316 r Rowan v. Eunnells, 5 How. States declared an opposing rule. No U. S. 134, 139 ; Parker ». Kane, 22 Federal question was involved. Spring Id. 1. Company v. Knowlton, 103 U. S. 49. («) Eev. St. U. S. § 721. THE SOURCES OF THE LAW. 23 So it has been held that if the highest judicial tribunal of a State adopts new views on the construction of a State statute, and reverses its former decisions, the Supreme Court of the United States will follow the later adjudication. ^ This rule rests upon the theory that the judicial department of a govern- ment is the appropriate organ for construing the legislative acts of that government, and that the construction given by the courts of a State to a statute of that State is to be received as correct, unless the statute comes in conflict with the Constitution, laws, or treaties of the United States. The cases sustaining this general proposition are extremely numerous. A few of the later ones are cited in the note.^ This general rule is subject to some exceptions now to be stated.^ (1) When a State statute is of recent origin, and no deci- sion upon its meaning has been rendered by the State courts, its construction is an open question.^ (2) The opinion of a State court is not controlling unless it was necessary to construe the statute in order to reach a deci- sion. In other words the mere dictum of the State court is not binding on the Federal court. ^ (3) The Federal courts will not follow the decisions of the State courts if in so doing they would infringe on the Consti- tution of the United States.'' (4) The rules as to remedies in the United States courts are, particularly in cases of equity jurisprudence, based upon general principles of law as established and defined in England.''' (a) 1 Greene v. Lessee of Neal, 6 Pet. 291 ; ^ On the general subject of exceptions Leffingwill v. "Warren, 2 Black, 599. and qualilications refei-ence is made to the 2 Tioga R. K.. Co. v. Blos.sburg & Cor- case of Pease v. Peck, 18 How. U. S. 595. ning R. R. Co., 20 WalL 137 ; Townsend * Gardner v. Collins, 2 Pet. 58. V. Todd, 91 U. S. 452 ; Township of Elm- 5 Carroll v. Lessee of Carroll, 16 How. wood V. Marcy, 92 U. S. 289 ; Peik v. U. S. 275. Chicago & Northwestern R. R. Co., 9i 6 Rowan v. Runnels, 5 How. U. S. 134 ; U. S. 164 ; Amy v. Dubuque, 98 U. S. State Bank of Ohio v. Knoop, 16 Id. 470 ; County of Schuyler v. Thomas, 98 369. U. S. 169 ; United States v. Fox, 94 U. S. ^ gee Rules in Equity ordained by the 315. Supreme Court of the United States. (a) In the Circuit and District Courts tice of the Court of King's Bench in of the United States the practice in civil England is the basis of tlie common-law causes other than equity and admiralty practice in the United States Supreme causes is made to conform, as near as may Court. Supreme Court Rule 3. In the be, to that of the State in which the courts United States Circuit Court of Appeals are held. Rev. St. U. S. § 914. As to the practice is the same as in the Supreme remedies in common-law causes in these Court as far as applicable. Rule 8, U. S. courts, see §§ 915, 916. The former prac- Circuit Court of Appeals. 24 THE LAW OF PERSONS. (5) Rules of evidence follow the law of the State where the Federal court is held.^ In the construction of State constitutions it is a general rule that the Federal courts will follow the highest court of a State, assuming that no conflict is claimed with the United States Constitution. 2 It may be stated, however, by way of exception, that they may follow a settled construction existing when a contract in ques- tion Avas made, and reject a more recent decision by the highest court of the State. The theory on which this view rests is, that the State court's construction entered into the contract when it was made, and thus formed part of it.^ In determining the title to land or other real property, the courts of the United States are bound to apply the laws of the State, including the decisions of the courts, in which the court is sitting and the land is situated.* So it happens that where any principle of law establishing a rule of real property has been settled in the State courts, the same rule will be adopted in the Federal courts.^ The powers of the United States courts to administer equity jurisprudence are conferred by the United States Constitution, and are not at all dependent npon the States or upon State legislation. So the Supreme Court of the United States is not bound by a decision of a State court upon a point of equity jurisprudence.^ In cases involving questions of commercial law and general jurisprudence, the Federal courts do not regard the decisions of the State courts as autJioritative, but at most only as guides. In many instances, they have declined to follow them. Such questions are deemed to be cases of general commercial law, in which every court is at liberty to follow its own opinion, according to its own judgment of the weight of authority and the soundness of principle.''' This is equally true of a commer- 1 R3'an v. Bindley, 1 Wall. 66. Amoskeag Bank v. Ottawa, 105 U. S. 2 Nesmith v. Sheldon, 7 How. U. S. 667. 812; Gelpcke v. City of Dubuque, 1 Wall. « State Bank of Ohio v. Knoop, 16 175 ; Town of South Ottawa v. Perkins, How. U. S. 369; Gelpcke v. City of Du- 94 U. S. 260. Under this principle the buque, 1 Wall. 175 ; Taylor v. Ypsilanti, judgment of the highest court of a State as 105 U. S. 60. to the validity of a State statute, as com- * Waring v. Jackson, 1 Pet. 570 ; Miles pared with the State Constitution, is v. Caldwell, 2 Wall. 35. binding upon the Federal courts. County ^ Suydam v. Williamson, 24 How. of Leavenworth v. Barnes, 94 U. S. 70 ; U. S. 427. Eailroad Company v. Georgia, 98 U. S. 6 Neves v. Scott, 13 How. U. S. 359. It is not material whether the result 268. be that the State statute will be thus ad- i Robinson v. Commonwealth Ins. Co., judged valid or void by the United States 3 Sumn. 220 ; Gloucester Ins. Co. v. courts. Hall v. De Cuir, 95 U. S. 485 ; Younger, 2 Curt. C. Ct. 322 ; Swift v. THE SOURCES OF THE LAW. 25 cial question growing out of the application of a statute, where some general principle is involved not dependent upon the statute, ^ Before closing this branch of the subject, reference should be made in more detail to some peculiarities of the English reports before the American Revolution. These reports are only consulted occasionally. Much of the learning contained in them has become obsolete. The most venerable of them is the collection termed the Year Books. These are for the most part, so far as printed, in folio form and are in the Norman French, now an obsolete language. The cases were reported regularly from year to year by reporters paid by the government. This course was adopted for more than two centuries. All of these books have not been printed. Some of the earliest (a.d. 1292-1307) have recently been translated and printed in modern form in England under the direction of the Master of the Rolls. These books give an interesting view of the rise and growth of English law, and are worthy of the attention of the legal reader. A case in point in them may still be cited as authority. Instances are found in the New York cases of Curtis v. Hubbard, ^ and Althorf v. Wolfe. ^ After the Year Books were discontinued in the reign of Henry VIII., the system of reporting was left open to the public at large. Many worthless reports were published, while others of great excellence were supplied to the profession. One marked feature of this voluntary system was the great and undue multi- plication of contemporary reports. This method led to such serious evils that in the year 1866 in England the series known Tyson, 16 Pet. 1 ; Town of Venice y. Mur- decisions involving the same principle, dock, 92 U. S. 494. The Supreme Court of the United States 1 Town of Venice v. Murdock, supra, held, in a case between the same parties This subject is one of much difficulty, and involving the same state of facts, that it a])parently not yet thoroughly worked out. would follow the State line of decisions, on The recent case of Bucher v. Cheshire the ground that the law was one of a Zcmi E. R Co., 125 U. S. 555, shows the per- c/irtradc?% having a well-established judicial plexities of the subject. A law of Massa- construction, (see the discussion of the chusetts has for a long time (though general subject on pages 582-584.) A modifiedrecently) provided that, "whoever well-digested statement of the cases in travels on the Lord's Day, except for Tie- which the United States courts will follow cessity or charity, shall be punished by the State courts, and also those where a fine not exceeding ten dollars." Gen. they will exercise an independent judg- Stat. ch. 84, § 2. The Massachusetts ment of their own, is to be found in the court, in the construction of this statute, case of Burgess v. Seligmnn, 107 U. S. held that it was a bar to an action by a 33-35. A great number of authorities passenger on a railroad, not travelling for bearing upon the subject are to be found necessity or charity, for an injury occa- in a note at the foot of p. 34. sioned by the negligence of the company. 2 4 f-jjn^ 437^ This ruling followed a long course of State ^ 22 N. Y. 355. 26 THE LAW OF FERSONS. as the " Law Reports" was established. This series is prepared under the direction of a council of men of high olficial and legal standing, including the attorney-general and solicitor-general, and has a great and deserved reputation. ^ Reporting in the United States is in the main done by official reporters. There are, however, in some of the States, — notably New York, — publications by private persons, which are cited with approval l3y the courts. ^ In addition to the reports, resort may be had for legal infor- mation to treatises, digests, abridgments, etc. For the most part, these should be regarded rather as means of consulting the reports. As a rule, when the treatise and report conflict, the latter is to be preferred. When the view of a text-writer is adopted by a court, it is not because it is itself authority, but on account of its intrinsic merit. Some works have come in this way to be highly esteemed and frequently cited. Among others may be mentioned Coke's Commentaries upon Littleton, Coke's Institutes, Blackstone's Commentaries, Kent's Commen- taries, Story's Commentaries, etc. A word should be added as to digests and abridgments. A number of these, published long ago, have become classic, and are cited as if they were authorities. An abridgment and digest do not materially differ, though in some instances the former is more detailed than the latter. The course of the author in each case is to arrange his material under appropriate general divisions with subordinate heads, and to refer to the volume and page of a report substantiating his proposition. The older writers of this class are Statham, Brooke, Dyer, Comyns, Viner, and Bacon. The leading modern English digests (for the word " abridgment " is not used by modern writers) are Harrison and Fisher, Mews with associates, Chitty, and the Digest of the Law Reports.^ Mews's work is of great merit. It commences with 1884, with annual continuations down to and including 1892. Chitty's Digest contains equity cases and bankruptcy cases in all the courts. The first volume was published in 1883, and the last in 1889. The Law Reports Digest commences with 1865, and is continued. There is also a useful digest of admiralty cases by Pritchard. In this country the United States Digest may be referred to, containing a first 1 Further details on the suliject of re- series of 65 volumes, and Abbott's Re- porting will be found in Wallace on j^orts, under the titles of "Practice Ee- Reporters. See also The Lawyer's Refer- ports," and " New Cases." ence Manual, — an excellent and highly » A very useful edition of Harrison & useful work, by Charles C. Soule (1884). Fisher has been pnUished by E. A. Jacob, - Instances are Barbour's Reports, a Esq., of the New York Bar. THE SOUliCES OF THE LAW. 27 series down to 1870, with a table of cases and annual continua- tions commencing with 1870. There are also digests in nearly every State of the decisions of its own courts. It is of great consequence to a student to become familiar with these works, and with the best modes of consulting them, as they are almost indispensable helps in ascertaining what decisions have been made upon the points which may happen at the time to engage his attention. The subject of the influence of later decisions upon earlier ones now requires more detailed consideration. The line of inquiry is, how far has the later decision impaired or destroyed the technical value of the earlier one, considered as a prece- dent. A decision may thus be reversed, overruled, questioned, limited, or distinguished. Again, if satisfactory, it may be re- affirmed, approved, or followed. These various terms should be explained. A decision is said to be "reversed" when the case has been removed hy cqypeal from a lower to a higher court, and has in that way been overturned and held for nought. It is "over- ruled " when the principle on which it proceeds is declared to be unsound in law, and not to be followed. The decision itself, however, still remains. Thus a New York court may overrule a Massachusetts decision, though it cannot reverse the judgment. A decision is said to be " questioned " when some doubt is expressed as to its soundness. It may thus be questioned in a number of later cases, and finally overruled. A decision is said to be "limited" when its principle is expressed in broader terms than the case requires, and it is confined to the exact rule ; and it is " distinguished " when it is not disapproved, but shown to be inapplicable to the facts of the case in hand. The word " distinguished " is sometimes an euphemism, and is employed where the former decision is really unsatisfactory. The same court thus frequently distinguishes one of its own earlier decisions from a later one, when it is not quite ready to overrule the former. A case is said to be " followed " when the later case simply yields to its authority. The word " approved " is a stronger term, and indicates satisfaction with the former decision. There are two main streams of thought in courts as to former decisions: one is the tendency to follow principles, or in other words, to adopt the results of logical thinking ; the other is to submit to authority. The conflict between these ten- dencies leads to the distinctions that have been noticed. Cases that have long withstood assaults, and have been finally over- ruled, produce a profound effect upon the law, as they weave 28 THE LAW OF PERSONS. themselves into its history, and cannot be overlooked or for- gotten. Their main value to the student is to know them in order to avoid them. DIVISION II. — Statute Law. 1. Prelimitiary. — The theory of statute law is altogether diverse from that of the common law. The great and funda- mental distinction is, that while the common law can only be announced by the judiciary in the course of a legal controvers}^, and then only as an assumed, existing rule, governing the matter in hand, the statute law can be generated at any moment at the pleasure of the legislature, and without reference to any existing rule. The common law has an historical development. The statute law may be something novel, alien to the habits and cus- toms of the people, and wholly arbitrary. It cannot be worked out by reasoning, but must be accepted as a fact. Statutes are enacted in England by Parliament ; in the United States by Congress and the legislatures of the States and Territories. There is an important distinction between Parliament consid- ered as a legislative body, and Congress. In the case of Parlia- ment, the legislative power is vested in the King or Queen, the House of Lords, and the House of Commons ; in the case of Congress the legislative power is by the terms of the Constitution vested exclusively in the Senate and the House of Represen- tatives.^ While the President of the United States does not 'participate in the legislative power, he has a check upon its exercise by means of the veto. Contrasting the power of Congress to make laws with that of a State legislature, there is an important distinction depending on the origin of their authority and the mode in which it is vested. Congress derives its whole power from a written instrument, viz., the United States Constitution. If a power is not found there in express terms or by reasonable implication, it does not exist. This rule has no application to a State legis- lature, which does not derive its power from a written instru- ment, but rather by adoption by the people of the rules of the common law. It is accordingly assumed to possess all the powers of the English Parliament, except so far as it may be deprived of them by the provisions of the constitution of the State or of the United States. ^ 1 Art. I. § 1. Butler V. Palmer, 1 Hill, 324 ; Bloodgood 2 People V. Morrell, 21 Weiul. 563 ; v. Mohawk, &c. K. K. 18 Wend. 9 ; THE SOURCES OF THE LAW. 29 Statutes are either public or private, declarative or remedial, penal or, in contrast with penal, remedial in another sense. A statute is said to be public when it affects the community or a class of persons. It is private when it affects a single person, and is in the nature of an exception to a general rule. A private statute may be in fact a contract between parties, one of whom is sometimes the State. In such a case if it impose upon a person a duty not relating to the public interest, it will not abrogate a prior contract between parties affected by it. ^ A statute is said to be declaratory when its object is to make plain an existing law which is obscure, or which has fallen into disuse. A legislature in this country cannot, under the guise of a declaratory statute, introduce a new rule which inter- feres with vested rights. In contrast with the term "declaratory" is the expression "remedial." A statute is said to be in this sense remedial when it introduces a new rule. It may either enlarge or restrain the existing rules, and in the one case it is termed an enlarging^ and in the other a restraining statute. A statute is said to be penal when it inflicts a punishment or penalty for disobedience of its provisions. In contrast with this word "penal," it is said to be "remedial " when its office is to prevent fraud or to enhance the remedy of an injured party. The same statute may be in this sense in one respect remedial and in another penal. The principal points to be here considered, are the rules to be followed in ascertaining the meaning of statutes, and their effect upon existing law. II. Rules governing the Interpretation and Construction of Statutes. — (1) General Rules of Interpretatio7i. — General rules of interpretation must be resorted to as well as special rules applicable to statutes. Interpretation of written language is regularly governed by set- tled rules, otherwise the meaning of words instead of being fixed and ascertainable would depend upon conjecture. These general Leggett V. Hunter, 19 N. Y. 445 ; Bank Jewett, J. The rule is now too well of Chenango v. Brown, 26 N. Y. 467 ; settled to be open to any doubt. Cathcart v. Fire Dept. of N. Y., 26 N. Y. i Savin i-. Hoylake Railway Co., L. 529 : Clark v. Miller, 42 Barb. 255 ; State R. 1 Exch. 9. Pollock, C. B., said, on of California v. Rogers, 13 Cal. 159 : Bush- p. 11 : "A private Act of Parliament is in iiell V. Beloit, 10 Wis. 195 ; McMillen v. the nature of an agreement between the The County Judge of Lee County, 6 la. parties. Why may not an agreement be 391 ; Page v. Allen, 58 Pa. St. 338. made in derogation of it, provided the Contra, People v. Board of Supervisors' agreement be not inconsistent with the "Westchester Co., 4 Barb. 64; Biirch v. public interest or morality ? " Kewbury, 10 N. Y. 374, 392, 393, per 30 THE LAW OF PERSONS. rules may be applied not merely to statutes but to contracts, wills, treaties, and other instruments of a legal nature coming up for consideration and enforcement before courts of justice. The leading rules for the interpretation of written language are as follows : — Rule 1. — The interpreter must take into account not only express words but reasonable implications. In nearly all writ- ings there are ideas to be implied which it would be tedious and unnecessary to express. Rule 2. — The words used are in general to be taken in their ordinary and popular sense. It may appear that they were used in some art or business, so as to have a technical meaning, which must then be ascertained and followed. Uu\e 3. — The intention of the writer is primarily to be regarded, and the mere words or " letter " of the writing are not to be followed to the exclusion of the intention. But this rule is qualified by the next. Rule 4. — The meaning must be contained within the writing called for convenience " the text. " The interpreter cannot prop- erly go beyond the writing in search of some supposed meaning. This would be to sacrifice a scientific method to mere conjecture. Rule 5. — The whole of the writing or text must be taken into account. This rule is not confined in its application to a single document. It may require the examination of a series of papers perhaps written at different times by the same author upon the same general subject. In applying these rules, the interpreter must place himself in the position of the author of the text as nearly as possible. He may find it necessary to become familiar with the period in which the author lived, with the manners, customs, and modes of thought then prevailing; and then with all the light that can be shed on the text from external sources, he must read and explain it. His sole object with these aids is to find out what the writing to be interpreted means. Many writers and even judges use the terms " interpretation " and " construction " as equivalents. It is, however, useful to draw a distinction between them. In fact it may be said that construction begins where interpretation ends. In applying the rules of interpretation, it may be found that the interpreter is led to an unreasonable conclusion. Perhaps unexpected occasions may have arisen not strictly within the contemplation of the writer, or possibly the law may forbid the exact accomplishment of that which the writer had in mind. It is the oflfice of con- struction to determine whether these variations are fatal, or THE SOUKCES OF THE LAW. 31 whether the text may be so enlarged in its meaning as to include such unexpected occasions, or whether the legal prohibitions may be avoided by giving the words a sense less extensive than that which the writer had precisely in mind. If the document to be interpreted be a legal one, this last point involves the doc- trine of cy pres, or the doctrine of approximation. It is a principle frequently resorted to in the construction of wills, and sometimes of statutes, but rarely, if ever, in the case of deeds, where more rigid rules prevail. Construction has, in its various aspects, been termed strict, liberal, and extravagant. It is said to be strict when the regular rules of interpretation are closely followed ; and liberal when the meaning of the text is extended by analogy to instances not expressed, or where the literal meaning is departed from because it would lead to absurd or unreasonable results. It is said to be extravagant when it avoids rules and resorts to con- jecture. The interpreter may perhaps abandon what is written on a supposed theory that such and such a thing ought to have been written, and that this meaning, though not contained in the writing, should prevail. The rules of interpretation, though recognized and well under- stood, are constantly violated in the ordinary affairs of life, par- ticularly in the heat of controversy. History is full of instances. In courts of justice questions of this kind are decided upon argu- ment as propositions of law, and with a professed observance of settled rules. (2) Sijecial Rules applicable to the Interpretation and Con- struction of Statutes. — Rule 1. — The words used must in general be taken in their ordinary and popular sense. For example, a statute provided that each time a locomotive engine of a railway passed over the railway at a point where it crossed a public highway, a bell should be rung or a whistle sounded, a penalty being attached to the violation of the rule.^ It was decided that the statute applied although the railroad and highway did not cross each other upon the same level. The court gave the word " cross " its popular sense of " going over." 2 So, where a statute in England prohibited tlie " conducting " or " driv- ing" of cattle through the streets of a town on Sunday, it was held that this prohibition did not extend to a case where cattle were carried in vans, but meant simply the act of conducting or driving the cattle in the ordinary manner in which cattle are driven.^ 1 N. Y. Laws of 1850, ch. 140, p. 232. » Triggs v. Lester, L. E. 1 Q. B. 2 People V. N. Y. Central R. R. 13 N. 259. Y. 78 ; Matter of O'Neil, 91 N. Y. 516. 32 THE LAW OF PERSONS. But this rule is qualified if the statute concerns some special or technical subject, in which case the special sense applicable to that subject must be adopted. Thus a commercial tariff law must be interpreted according to the commercial sense. For example, the expression " manufactured India-rubber shoes," in the commercial tariff of 1842,i was held to mean such shoes made in foreign countries, as were calculated to rival some domestic manufacture here, and not those which were imported merely to furnish raw material in a more portable and useful form for other manufactures in this country .^ Rule 2. — The court is not to go beyond the statute in search of some sense that the legislature might be conjectured to have intended. The rule voluit sed non dixit may be applied. The meaning of this expression is that the legislature may have had some intention but it has not succeeded in expressing it, and so the statute is without effect. Still, it is a strong argument in favor of a specified meaning, that without it the statute would be nugatory. It is difficult to suppose that a legislature would enact a statute without any meaning. Rule 3. — The whole of the statute must be taken into account. A cognate rule is that statutes upon the same subject must be considered together. Such statutes are said to be in pari materia. The principle is expressed in the following form by Mr. Barring- ton, " The best exposition of the meaning of an author is another part of his works, and the successive legislatures must be construed as constituting one author." ^ The Tai'iff Act of 1861 * exempted from duty " animals, living of all kinds," " birds, singing or other," etc. A later act of 1866 ^ imposed a duty on all horses, cattle, etc., " and other live animals." It was decided that " birds " were not included among " animals " in the last act, as they were not in the first.^ The fact that birds are properly speaking " live animals " did not affect the decision. Rule 4. — Contemporaneous exposition is very strong and effective in law. The meaning of this rule is, that in interpreting a statute great authority is attributed to the construction put upon it by judges who lived at the time when the statute was made or soon after, (a) It is thought that tliey are best able to ascertain 1 5 U. S. Stat, at Large, 555. * 12 U. S. Stat, at Large, 193. 2 Lawrence!;. Allen, 7 How. U. S. 785, 5 14 u. S. Stat, at Large, 48. 794. 6 Reiche v. Smythe, 13 Wall. 162. See ^ Barrington on Statutes, 146. also Horner t\ The Collector, 1 Wall. 486. (a) See The People v. Charbineau, 115 N. Y. 433 ; cf. Matter of Washington Street Asylum, Id. 442. THE SOURCES OF THE LAW. 33 the intention by knowing the circumstances then existing. Even the opinions of contemporary members of the legal profession may shed light upon a case where the words of a statute are obscure or doubtful. Lord Coke has said " that in construing a statute great attention ought to be paid to the construction which the sages of the law, who lived about the time or soon after it was made, put upon it." ^ Rule 5. — In interpreting a statute changing the existing law regard must be had to three points : the old law, the mischief, the remedy. By " mischief " is meant the evil or bad effect of the law in force at the time when the statute was enacted. The rule of construction, then, is to confine the words of the statute (even though in fact of broader signification) to the change intended to be produced. The rule aims at no more than to ascertain the true intent of the legislature. For example, it was an old rule that a bishop having church lands under his con- trol might lease them to tenants for any terra of years that he might see fit, at such a rent as he might choose. The mischief or bad effect of this rule was that a particular bishop might lease for a long number of years at a low rent and thus impoverish his successors. The remedy provided by a statute was that a bishop should lease only for twenty-one years. After this enactment, a certain bishop leased for his own life, which might, of course, by possibility exceed twenty-one years. It was still held that the lease was not void, as it would in any event terminate at the bishop's death and could not impoverish his successors. Rule 6. — The reason and spirit of the statute must be followed rather than the letter. Sometimes it is said " that he who clings to the letter adheres to the bark " {qui Jiaeret in litera haeret in cortice), or in other words does not penetrate to the heart of the subject. Again it is said that " the spirit of the law is the life of the law." Accordingly, if in interpreting the statute an un- reasonable or highly inconvenient result is arrived at by one con- struction, it may lead to the rejection of it, and the adoption of another more reasonable in its nature.^ A statute in England gave the Queen in Council power to make orders acting upon persons having the care " of vaults or places of burial." It was held tliat this expression did not apply to a case where land belonged to a private owner, where there had 2 Inst. 11, 136, 181. Long and un- that the policy upon which it was estab- interrupted practice under a statute is lished has ceased. Brown v. Clark, 77 good evidence of its construction. Power N. Y. 369. Still it is a strong argument V. Village of Athens, 99 N". Y. 592. against a particular construction that it ^ 2 A court cannot, however, dispense would lead to manifest injustice. People with a statutory rule because it may ajapear v. Davenport, 91 N. Y. 574. 34 THE LAW OF PERSONS. once been burials whicb had ceased when the statute was passed. It was said that to hold otherwise would lead to the unreason- able conclusion that if there had ever been a burial in a private ground, the owner could be prevented from making any beneficial use of it. So, where a New York statute ^ declared that when persons travelling in carriages on a road or highway shall meet, they shall seasonably turn their carriages to the right of the centre of the road, so as to permit such carriages to pass without inter- ference or interruption, it was decided that it had no application to the meeting of railroad cars with common vehicles. Accord- ingly, notwithstanding the statute, the carriage might in meeting the car turn either to the left or the right.^ A case may be within the letter of a statute and not within the intention of the legislature. Rule 7. — A penal statute should be construed strictly according to the literal meaning of the words, and including no cases except such as are clearly within their terms. This rule will be considered further in connection with the next rule. Rule 8. — Remedial statutes, as contrasted with penal, should have a large and liberal construction in order to suppress fraud or wrong, and promote the remedy of the injured party. As a statute may be in one aspect remedial and in another penal, the same words may receive a twofold construction de- pending upon whether the penal side of it is before the court, or the remedial. A case arose under the English statute of 9 Anne, c. 14, which provided in substance that when £10 or upwards were lost at gaming " in one sitting " the loser could recover the money lost, while the winner should forfeit three times the amount to any one who would sue for it. The words to be interpreted were " one sitting." The facts which presented the question were that two gamesters were engaged in play for twenty-four hours consecutively, except that they adjourned for one hour to dine. There was held to be "one sitting" for the purpose of restoring the money lost, though the court said it would have been held otherwise had an action been brought for the penalty .2 Rule 9. — When statutes or different parts of the same statute are claimed to be contradictory, the court will strive to construe them in such a way that both may stand.^ This rule is based on 1 1 R. S. 695, § 1. 3 Bones v. Booth, 2 W. Black. 1226. 2 Hegnn v. Eighth Ave. R. R. Co., 15 * Chamberlain v. Chamberlain, 43 N. N. Y. 380. Y. 424. THE SOURCES OF THE LAW. 35 the principle that such an interpretation must be made that the subject-matter will stand rather than fail, — ut res magis valeat quam pereat. If it is impossible to reconcile the contradictory or repugnant expressions, a saving clause repugnant to the general scope of the statute will be declared void, or a rule hereafter to be adverted to will be followed, that the words used later in point of time will prevail. Rale 10. — A distinction must be taken between an exception and a proviso. If a particular clause be treated as an exception and an action be brought for a breach of the statute, it will be incumbent on the plaintiff to show in his pleadings that the defendant is not protected by the exception. But if the clause be treated as a proviso, the party sued if embraced within the general words of the statute will be answerable, unless he shows on his part that he is relieved by the operation of the proviso. The distinction becomes a rule of pleading, and shows which of the two parties to an action holds the burden of proof. One mode of distin- guishing the two is to note that an exception is a part of the general words of the statute ; a proviso follows after the general words, and is usually preceded by the word " provided." The dis- tinction itself seems highly technical. There is a further ques- tion whether, if a proviso be repugnant to the general body of the act, the so-called " purview," the proviso is void. Upon this point the authorities are apparently at variance, though not per- haps really so when closely scrutinized. A proviso does not have the same effect in this respect as the " saving clause " referred to in Rule 9. An old decision compares the case to a will, where a later clause prevails rather than an earlier one, because it is the last expression of the testator's desire ; and so by analogy in the present case, the last expression of the lawgiver's intent should be heeded.^ The correct view seems to be that when a clause in the nature of a proviso does not destroy the " purview," but leaves that to prevail in its general scope, and at the same time withdraws from its operation some item which would otherwise be included, the proviso is valid.^ Rule 11. — In general a statute acts prospectively. It affects future and not past transactions. The general principle is, to 1 Attorney-General v. Chelsea Water- Me. 360, 369, 370 ; .AInttev of IST. Y. & Works, Fitzgibbon's R. 195 ; Townsend Brooklyn Bridge, 72 N. Y. 527, 530, V. Brown, 4 Zab. 80. 531. 2 Savings Institution v. Makin, 23 36 THE LAW OF PEKSONS. make the statute act retrospectively only when the words impera- tively require it.^ To this rule there are some important exceptions. If the object of the statute be to prevent a delay or failure of justice, it may properly be allowed a retrospective operation. An act repealing the penal severities of an usury law may be construed in the same way.^ It would seem that this principle would extend to the repeal of any penal enactment. The great object of the rule is, then, to prevent a retrospective operation of the statute if it works injustice or interfe-res with vested rights.^ If, however, the words of the statute are plain, its retrospective operation must be allowed ; and then a question may arise as to whether the law is not opposed to some constitutional provision upholding vested rights. Rule 12. — A difference is to be noted between words that are " mandatory " and such as are " directory." Words are said to be mandatory when an act prescribed must be done as the statute requires ; they are directory when the act may be done in some other way or form, or at some other time. This distinction has much to do with the time when an act must l)e performed. It is a general rule that if an act be directed to be done on a particular day, it may be done on some other and even later day. On the other hand, where the interests of the public or of third persons are concerned, permissive words will be con- strued as obligatory; the word "may"^ will be held to mean " must." {a) Rule 13. — Statutes giving authority to be exercised in deroga- tion of private right must be strictly followed. An instance of this kind is that of land sold by law for the non- payment of taxes. If the steps required by the statute are not strictly followed by the public authorities, the sale will be void.^ Another important instance is that of the delegation to a village or other local authority, of the exercise of the right of eminent domain.*^ 1 Dash V. Van Kleeck, 7 Johns. 477. 67 ; Newburg Turnpike Road v. Miller, The French Code expresses the principle 5 Johns. Ch. 101. without qualification : " The law only pro- ^ Strikers. Kelly, 2 Den. 323. vides for the future ; it has no retroactive ^ Matter of the Rensselaer R. R. Co. v. effect." Civil Code, Art. 1, § 2. Davis, 43 N. Y. 137. Matter of the Com- 2 Curtis V. Leavitt, 15 N. Y. 9. missioners of Washington Park, 52 N. Y. 8 Wadsworth v. Thomas, 7 Barb. 445. 131. * Livingston v. Tanner, 14 N. Y. 64, {a) See Gilmore v. City of Utica, 121 cuse, 59 Hun, 258 ; afTd 128 N". Y. 632. N. Y. 561; The People v. Mayor of Syra- THE SOURCES OF THE LAW. 37 Rule 14. — Where a statute having in view the protection of the public health or morals, or the suppression of frauds, inflicts a penalty for doing an act, its commission is deemed unlawful, though not prohibited in terms. The penalty implies a prohibition. A contract to perform the act is illegal and void. It was accord- ingly held that one who sells liquor without a license in violation of the excise law, cannot recover the price of the liquor from the purchaser.! Rule 15. — A person may waive a statutory or even a constitu- tional provision int<;nded for his benefit ; ^ but jurisdiction of the subject-matter of an action cannot be obtained by a court in this way, although a party may waive the statutory steps necessary to bring himself before a court which already has jurisdiction of the subject-matter.^ Jurisdiction means the power which a court has to hear and determine a cause.* Such a power can be conferred by law alone, and not by the consent of the parties. But where the court has jurisdiction of the subject-matter, if a defendant submits to it, he cannot afterwards object, for example, that by law the action should have been brought in another county. His submission is a waiver of such an objection.^ Rule 16. — When a statute gives a remedy for a right already existing at common law, an injured party may at his election resort either to the common law or to the statutory proceeding. This statement assumes that there has been no repeal of the common law either in express terms or by implication. The rule is applicable both to civil and criminal proceedings.^ But if the right itself is created by the statute, and adequate means for en- forcing it are provided, the proprietor of the right is confined to the statutory remedy.'^ This point is in fact covered by the suc- ceeding rule. Rule 17. — The expression of one thing is the exclusion of another, exjjressio utiius, exclusio alterius. This is a rule of wide application, extending to all written instruments, but is said never to be more applicable than in the case of statutes.^ Considerable caution is to be used in the appli- cation of this principle. It may be that the statute mentions some things of a class by way of example, in which case others of the class would not be excluded. On the other hand, the words 1 Griffith V. Wells, 3 Den. 226. 5 Brown v. Webber, 6 Cush. 560. 2 Buel V. Trustees of Lockport, 3 N. e j>ex v. Robinson, 2 Burr. 800, 805. Y. 197. • Dudley v. Mayhew, 3 N. Y. 9 ; 3 Coffin V. Tracy, 3 Caines, 129 ; Davis Donaldson v. Beckett, 2 Bro. P. C. 129. V. Packard, 7 Pet. 276. « Broom's Legal Maxims, 652. * United States v. Arredondo, 6 Pet. 691. 38 THE LAW OF PERSONS. may be restrictive and intended to exclude all that are not enume- rated. This view may easily be taken where, for example, certain specific things are taxed. The argument would be strong that other articles were not to be taxed.^ Similar principles have been applied to statutes conferring immunities or creating exemp- tions from statutory liabilities. Common-law exemptions would be tacitly excluded.^ This rule may easily be carried too far, as exceptions are often introduced as a mere matter of caution.^ One of the Amendments to the United States Constitution was adopted to avoid any use of this rule by the court adverse to the rights of the people.^ Rule 18. — When words are of doubtful meaning certain cir- cumstances may be called on to aid the interpretation, which would not be resorted to if the meaning were clear, 1 ''"he ^:)rea7?i5Z<3 may be referred to in order to explain the en. ng part of the statute, when doubtful ; but not to restrain i' *•.;) ^aning when clear and unambiguous.^ The title may be referred to for the same purpose.^ S. Reference in like case may be had to extrinsic circum- stances.' 4. In construing revised or codified statutes, a mere change of language will not be regarded as evidence of an intention to vary the construction. The intent to vary must be manifest and certain.^ 5. When one statute is referred to in another by several de- scriptive particulars, some of which are plainly false and others true, the former may be rejected as surplusage, provided the latter are sufficient to show clearly what is meant.^ 6. Although a statute be inartificially drawn, effect must be given to it if the intent can be fairly made out from the words.^'^ 7. Where words are obscure the intent may be inferred from the cause or necessity of the enactment. ^^ ^ The King V. Inhabitants of Woodlawn, ® Cumines v. Supervisors of Jefferson 2 East, 164 ; Lead Company v. Richard- Co., 63 Barb. 287 ; People v. Wood, 71 son, 3 Burr. 1341, 1344. K Y. 371; Piimpelly v. Vilhage of Owego, 2 The King v. Cunningham, 5 East, 45 How. Pr. 219. 478. 7 Smith v. Helmer, 7 Barb. 416. 3 See the principle stated and qualified 8 Dominick v. Michael, 4 Sandf. 374 ; in Tinkham v. Tapscott, 17 N. Y. 141, Douglas v. Douglas, 5 Hun, 140 ; Davis v. 152, 153. Davis, 75 N. Y. 221. * U. S. Constitution, Amendments, 9 Watervliet Turnpike Co. v. McKean, Art. IX., "The enumeration in the Con- 6 Hill, 616. stitution of certain rights shall not be lo Matter of Commissioners of Wash- construed to deny or disparage othere re- ington Park, Albany, 52 N. Y. 131. tained by the people." n People v. Asten, 49 How. Pr. 405 ; 5 Jaekson v. Gilchrist, 15 Johns. 89. aff'd 62 N. Y. 623. THE SOUECES OF THE LAW. 39 8. Inconsistent expressions must be harmonized to reach the intent.^ 9. Grammatical rules do not prevail over the manifest sense of the language.^ 10. A re-enactment of the same provisions in substantially the same terms as in former statutes, is deemed an adoption by the legislature of the judicial decisions on the former acts.^ 11. Circumstances leading to the enactment of a statute may sometimes be considered in aid of its interpretation.* These and like special rules, being for the most part intended to overcome doubt and remove obscurity, will not be made use of when the language is plain and unequivocal. In such a case, the title of the statute is not considered;^ though there may be special cases, arising, perhaps, under constitutional clauses, in which the court will look to the title for the true construction, even f^ ough the language of the act be clear. It will, however, i in \ h a case proceed with great caution.^ The same general rv t)- plies to the use of a preamble when the language of t -.ct is clear.7 III. Repeal and its Effect. — It is of the essence of a statute, not in its nature declaratory, that it changes the existing law. The common law thus gives place to a statute, and an old statute to a new one. All statutes not amounting to contracts are thus capable of repeal. The leading principles governing repeal are embodied in the following rules : — Rule 1. — No statute can be rendered irrepealable by a declara- tion of the legislature tliat it shall not be repealed. Nor can any existing legislature impose upon subsequent legislatures valid restrictions as to modes of legislation.^ Each successive legis- lative body has plenary power over the whole field of legislation, unless restricted by constitutional provisions. Rule 2. — Statutes may be repealed either by express words or by implication. Questions principally arise as to repeal by implication. There will in general be no repeal by implication unless the two acts are manifestly inconsistent with and repug- nant to each other.^ Where two statutes can stand together, 1 In the Matter of N. Y. & Brooklyn ^ People v. Davenport, 91 IST. Y. Bridge Co., 72 N. Y. 527. 574. 2 People V. Gates, 56 N. Y. 387. "^ Constantine v. Van Winkle, 6 Hill, 3 People V Green, 56 N. Y. 466. 177 ; Jackson v. Gilchrist, 15 Johns. * People V. New York & Manhattan 89. Beach Railway Co., 84 N. Y. 565. « Smith v. Helmer, 7 Barb. 416. 5 In the Matter, etc., Village of Mid- » Bowen v. Lease, 5 Hill, 221. dletown, 82 N. Y. 196. 40 THE LAW OF PERSONS. the latter will not be held to repeal the former.^ There must be repugnancy. 2 («) Rule 3. — Where amendments to Revised Statutes or Codes are introduced by the statement that the former statute " is hereby amended so as to read as follows," this expression is held to have been adopted for the purpose of adjusting the amended sections to the original enactments. The intent of the legislature is, that when the system after repeated amendments becomes complete, the different parts may be put together so as to form a systematic code, the portions of the amended sections, which are merely copied without change, not being considered as repealed and then re-enacted, but as having been the law all along ; and the new parts are not to be taken to have been the law at any time prior to the passage of the amended act.^ Rule 4. — One statute may be substituted for another in a way which differs somewhat from a mere repeal. Thus if a later statute does not purport to amend a former one, but covers the whole subject, it must be regarded as a substitute, and the former is repealed.* Rule 5. — A special statute, local in its application, will not be repealed by the general words of a statute general in its applica- tion, unless the intent of the legislature is manifest. The general phrases will not suffice,^ Rule 6. — When a repealing statute is itself repealed, the for- mer law revives. This rule prevails whether the repeal be by express words or by implication.^ This is a rule of logic, and is not confined to acts of the legislature, but includes resolutions passed and repealed at public meetings in general. There are in some of the States general laws restricting to some extent the operation of this principle. Rule 7. — If a statute is repealed when proceedings under it are pending, the proceedings themselves are nullified. Thus if a statute provide a penalty for the commission of an act, and the statute be repealed, the penalty cannot be exacted for acts 1 People V. Palmer, 52 N. Y. 83. * People v. City of Brooklyn, 69 N. Y. 2 Mongeon v. The People, 55 N. Y. 605. 613 ; In the Matter of the Evergreens, 47 ^ People v. Quigg, 59 N. Y. 83. N. Y. 216. 6 Wheeler v. Roberts, 7 Cow. 536 ; 3 Elyu. Holton, 15 N. Y. 595; Cal- Van Denborgh w. Village of Greenbiish, 66 lioun V. Delhi R. R., 28 Han, 379. N. Y. 1 ; Schwab z>. People, 4 Hun, 520. (a) Repeal by implication is sometimes amended by the passage of any subsequent made im])0ssible by statute. Thus the statute inconsistent therewith, unless such New York Penal Code provides that : "No statute shall explicitly refer thereto, and provision of this Code, or any part thereof, directly repeal, alter or amend this Code shall be deemed repealed, altered or accordingly." § 728. THE SOURCES OF THE LAW. 41 committed before the repeal. ^ Even if an action had been com- menced, it could not be continued, and if a conviction had been had, there could be no judgment. But a repeal after judgment does not affect the right declared by it.^ It is quite common to find a saving clause in repealing acts, exempting pending pro- ceedings from the operation of this rule. TV. Constitutional Restrictions upon Legislation. — The power both of Congress and of the State legislatures to pass laws is to a considerable extent restrained by constitutional provisions. The powers of Congress are found solely in the United States Constitution, and Congress is restrained from legislation not therein expressly or impliedly authorized. The powers of State legislatures may be and are limited both by the United States and State constitutions. The restrictions in the United States Constitution are of a gen- eral nature, directed against legislation unsound in theory or mischievous in practice. Similar provisions are found in State constitutions ; but, besides these, there are frequently matters of detail, which are regarded as of sufficient importance to be withdrawn from legislative action. These vary much in the dif- ferent States. For instance, it is provided in a number of the State constitutions that " no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.'" ^ Such a clause makes the title of constitutional importance, and if the provision is trans- gressed the law is void. The following are some of the principles of construction appli- cable to this general subject. The courts will presume in the construction of a State constitution that a law is cojistitutional until one who alleges the contrary proves it beyond rational doubt.* The true ground on which courts interfere is that tliere are express constitutional provisions Hmiting legislative power, and controlling the will of the legislature by paramount law.^ Accordingly, before a court will pronounce a law void, it must clea^'ly appear that the act cannot be supported by any reasonable 1 Powell V. The People, 5 Hun, burgh v. Village of Greenbush, 66 N. Y. 169. 1, at p. 4. 2 Hartung v. The People, 22 N. Y. 95 ; 3 See Constitution of N. Y., Art. III. The People v. Board of Police, 40 Barb. § 16. 626 ; s. c, 39 N. Y. 506. " When an act * Ex parte M'Collum, 1 Cow. 550 ; is repealed it must be considered (except Clarke v. City of Piochester, 24 Barb, as to transactions past and closed, and pos- 446. sibly as to some pending cases) as if it had ^ Cochran v. Van Surlaj^ 20 Wend, never existed. " Eael, J., in Van Den- 365 ; Newell v. People, 7 N. Y. 9, 109. 42 THE LAW OF PEKSONS. intendment or allowable presnmption.i The courts do not imply a conflict between the law and the constitution, but expect it to be clear and substantial.^ Still an act violating the true intent and meaning of the constitution is as really prohibited as if it were within the strict letter of the instrument, and the courts will see that the constitution is not evaded, nor its intent frustrated.^ A law may be constitutional in one aspect and unconstitutional in another. For example, a law constituting a crime, and giving it both a future and a retrospective application, would not be wholly void. It might be sustained as to future cases, while it would be declared void so far as it was retroactive.* Jt is quite common in the various States to amend the constitu- tion. Such additions or alterations must be read in connection with the whole instrument. They do not supersede any existing provision to which they are not clearly repugnant. The Amendments to the United States Constitution do not affect the States, with the exception of the Thirteenth, Fourteenth, and Fifteenth. The first ten Amendments were designed to control the action of Congress or other branches of the Federal government alone.° A question has been raised in some of the States whether a law would be void as being opposed to the spirit of the Constitution. This question does not refer to a fair construction of the words used, but to a supposed " spirit " of the Constitution w^iere the instrument itself is silent. The courts will not declare a limita- tion under the notion of having discovered something in the spirit of the Constitution upon a subject which is not even mentioned in it.^ A law cannot be pronounced invalid because it violates justice, or is oppressive or unfair, or because it is not justified by public necessity.''' Still, the legislature may not indirectly violate the Constitution any more than directly. It cannot, for example, authorize one man to take the land of another for his private purposes, although such an act is not directly prohibited. It is indirectly prohibited by the rule that " private property can be taken for public use " by the payment of just compensation. This is equivalent to a declaration that it shall not be taken for 1 People V. Supervisors of Orange * Jaehne v. New York, 128 U. S. ISO. County, 17 N. Y. 235. 5 Spies v. Illinois, 123 U. S. 131, 16(5. 2 Matter of N. Y. Elevated E. R. Co., 6 People v. Fisher, 24 Wend. 21.5, 220 ; 70 N. Y. 327, 342 ; Matter of Gilbert People v. N. Y. Central E. R. Co., 34 Elevated Ry. Co. v. Kobbe, LI. 361. Barb. 123 ; aff'd 24 IST. Y. 485. 3 People V. Albertson, 55 N. Y. 50. ' Brotholf v. O'Reilly, 74 N. Y. 509. THE SOURCES OF THE LAW. 43 private use on any terms.^ On like grounds, tlie legislature can- not exercise the power of taxation for private purposes. ^ If a law be in the end declared unconstitutional, a public officer who has acted under it will have no justilication for his acts. An unconstitutional law is no law. The legislature having by the hypothesis no power to enact, the fact that it has gone through the forms of enactment is of no avail. A question like this cannot come up in the English courts as to the power of Parliament, as its legislative capacity is wholly with- out restraint. It might, however, be presented there in construing the power of a colonial legislature acting under a written instru- ment. It might come before the Judicial Committee of the Privj Council, the court of last resort as to such questions. That court would avail itself of a principle, much resorted to in the law of corporations having restrictions upon their powers, called the doctrine of ultra vires. This is, that corporate acts done in ex- cess of corporate powers are void.^ The details of this subject will be found in such vs^orks as Cooley on Constitutional Limita- tions and Story or Pomeroy on Constitutional Law. It may be well to add here that a statute is in general confined in its territorial effect to the territory of the sovereign power which enacts it. It has been said in the English courts that it must be regarded as having the words " within the dominions " inserted in it.^ Still the sovereign power may by apt words bind its own subjects, though beyond its territorial limits. This is particularly true of cases arising at sea. It has been said that a British Parliament has no authority to legislate for foreigners out of the dominions and beyond the jurisdiction of the crown.^ 1 Taylor v. Porter, 4 Hill, 140. words ' within the dominions ' inserted in - Weismer v. Village of Douglas, 64 N. it. An attempt was once made to make Y. 91. dealing in slaves a felony in every part of ^ Bank of Ontario v. Larabe, L. R. 12 the world, but the opinion of all the legal App. Cas. 575, deciding that the Quebec authorities was, that an English Act of Act, 45 Vict. c. 22, was intra vires. Harris Parliament was binding within the realm V. Davies, L. R. 10 App. Cas. 279. The of England only. If, indeed, the Act of principle followed is, that a colonial legis- Parliament had stated that all British sub- lature is restricted in the area of its powers, jects were to be hound, as is the case in Powell V. Apollo Candle Company, L. R. some of the slave-dealing acts, or as is the 10 App. Cas. 282 ; Colonial Building Ass. case in the Royal Marriage Act with respect V. Atty-Gen'l of Quebec, L. R. 9 App. to the descendants of George the Second, Cas. 157 ; Hodge v. The Queen, Id. 117. there the case is different, but where the This case concerned the power to pass cer- enactment is general, as in the present tain police regulations, &c. case, it does not extend beyond the English * Rosseter «. Cahlmann, 8 Exch. 361; dominions." 22 L. J. Exch. p. 129. s. c. , 22 L. J. Exch 128. In this case ^ Lopez v. Burslem, 4 Moore, P. C. C. Pollock, C. B., said " Every Act of Par- 300. liament must be understood to have the 44 THE LAW OF PERSONS, It is a general rule that when a statute directs an act to be done within a specified time, e. g., twenty days, the time is to be computed by excluding the first day and including the last. If the last day be Sunday, the act must be done on Saturday, unless there be some provision in the statute to the contrary. The general rule becomes at times important in its application to the Statute of Limitations.^ This chapter may be properly closed by a reference to the mode of citing English and American statutes for the use of courts. All of the acts passed at a session of Parliament in legal view constitute but one statute, particular laws being called chapters. The older statutes are sometimes known by the name of the town where the Parliament was held, e. g.^ the statutes of Merton, Gloucester, etc. At other times, they are designated by the first words of the statute, in Latin, e. (/., Quia emptores. At present, they are designated by the year of the reign, e. g., 45 &, 46, Vic- toria. In this country the usual course is to designate them by the year and chapter. In many of the States, the statutes have been arranged in a codified form, known as Revised Statutes or Revised Laws. The laws of Congress have been arranged in the same manner. There are also revised statutes in England, pub- lished in fifteen volumes commencing with the reign of Henry III., and coming down nearly to the present time. In a large number of the States, the rules of procedure in the courts have been reduced to a statutory form, known as Codes of Procedure or as Codes of Civil or Criminal Procedure. The laws of each session are also published in volumes called Session Laws. In these, many special or private acts are set forth, which do not at any time appear in "Revised Statutes or Codes." If a copy of a statute is needed before publication, application may be made to the Secretary of State, as depositary of the statutes. There is also published in England a chronological table and index of the English statutes from the earliest period to the date of publication. This is a highly useful book of reference, (a) 1 Nitchie v. Tovvnspnd, 2 Sandf. 299 ; the action was commenced on July 24, 1852. Mygatt V. Wasliburn, 15 N. Y. 316, 318, The statutory period being six years, the see opinion of Brown, J. The cause of judge's opinion was that the action had action in his view arose July 24, 1846, and been brought in due time. (a) The eleventh edition of this work was published in 1890. CHAPTER III. THE RIGHTS OF PERSONS. A " PERSON " in law is one who is entitled to present his claim of rights to a court of justice. His position in this respect is sometimes termed his " status." The rules of the ancient law were very strict, fixing " status " by an arbitrary standard. Of this, slavery is an instance. It is the tendency of modern law to fix one's position by contract rather than by rule, and to hold that the law should only interfere in case there is a want of capacity on the part of the individual to act or to contract. The rights of persons are commonly divided into absolute and relative. Absolute rights are such as appertain to a person con- sidered independently of others. They are, in the common law, the right of personal security, the right of personal liberty, and the right of private property. A violation of either of these rights constitutes a legal wrong. The word " wrong," as here used, does not involve moral obliquity, but simply means an unlawful interference with a legal right. " Duty " is a correlative word to " right." If A. has a legal right, B. is under a legal duty not to interfere with that right. " There is no right without a duty ; no duty without a right." ^ It would be possible, accordingly, to frame a system of law from the point of view of either duties or rights ; but the latter is the more simple and convenient arrangement. Before discussing the subject of personal rights specifically, it ■will be useful to refer to some of the great state papers or statutes in England by which such rights have been emphatically affirmed or secured. Magna Chartd, or the Great Charter, was wrested from King John by his barons, at Runnymede, Ju\e 15, 1215. It is only necessary at present to refer to one of its important^ provisions, which is as follows : " No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or anywise destroyed ; nor will we go upon him nor send upon him but by the lawful judg- 1 This was a favorite expression of the the Latin form, Nullum jus sine officio; late Dr. Francis Lieber. He was fond of milium offi^ciinn sine jure. 46 THE LAW OF PERSONS. mcnt of his peers or by the law of the land. To none will we sell, to none will we deny or delay, right or justice." ^ The tech- nical expressions, "judgment of his peers" and "law of the laud " were held at an early day to mean in criminal cases (of a grave nature, viz. felonies) indictment by a grand jury, and trial by a petit or petty jury ; and in civil cases, trial by jury. A grand jury by the common law consists of twenty-three persons or one less tlian two full juries, a majority of whom may find an indictment. An indictment is a written accusation presented under oath to the proper court. It is the result of an inquiry into the question whether there is a sufficient probability that the accused has committed a crime, to justify a trial. It is a legal device designed to prevent, as far as possible, the trial of frivolous and unfounded charges of crime. The proceeding before the grand jury is ex parte (evidence for the state only being heard). The indictment having been found, the trial of the charge belongs to the so-called petty jury, consisting of twelve men, and is presided over by a judge. The conclusion or verdict of the jury must be unanimous. This provision of Magna Charta does not interfere with the trial of prisoners charged with minor offences, termed misdemeanors, on the formal suggestion of a prosecuting officer, such as the Attorney-General, without an indictment. This method of proceeding is termed an information. These theories of Magna Charta have been largely adopted in the United States and form a part of our system of national jus- tice, as secured in one of the Amendments to the United States Constitution.^ The necessity of unanimity on the part of the jury is so fully recognized in this country that it has been decided in one State that a prisoner on trial for a capital offence cannot legally waive a trial by twelve jurymen, and that if he goes through the form of waiver and is convicted by eleven jurymen, the judgment will be reversed by the appellate court.^ (a) In civil cases, trial by jury was secured by the Great Charter in the common-law courts, but its provisions did not extend to the courts of equity, nor to the ecclesiastical courts or courts of admiralty where trials are had before a judge alone.* 1 1 Stubbs' Constit. Hist, of England, 3 Cancernie v. People, 18 N. Y. 128. § 155, p. 537. * The history of t)ie document itself is 2 Art. V. of Amendments. somewhat interesting. It can be traced {a) But a State statute may confer upon a trial he is found guilty and sentenced to the accused the right to waive a trial by death, the Fourteenth Amendment is not Jury, and to elect to be tried by the court, thereby violated. " Due process of law " and also give the court the power to try refers to the law of the land in each State, the accused in such a case. If after such Hallinger v. Davis, 146 U. S. 314. THE RIGHTS OF PERSONS. 47 The Petition of R'fiht was a statute enacted at the session of Parliament, commencing March 17, 1627 (3 Car. I.). Though called a petition it was in fact a law. It contains eleven sections. The first nine sections consist of a recital of abuses in the admin- istration of public law, violations of the Great Charter, etc. The tenth section then enacts that there shall be no compulsory loan exacted from subjects without consent of Parliament ; that the people shall not be burthened with soldiers or mariners ; that com- missions to try persons by martial law in time of peace shall be revoked, and shall not be granted in the future. The principles of the Great Charter are also re-affirmed. It is not the office of this statute to make new provisions, but to restore to public recog- nition existing provisions which in the lapse of time had come to be disregarded by the government. The Habeas Corpus Act was enacted in the year 1679.^ It did not originate the writ of habeas corpus, but made it more effective, and a more sure safeguard of liberty. The writ itself was no doubt based on the great clause of Magna Charta already quoted. That instrument having declared that a person should not be deprived of his liberty without due process of law, this writ was devised at a very early day to relieve one who was deprived of his liberty in opposition to the statute. But it was not sufficiently effective in its provisions, and if it appeared in the course of an inquiry under it that the prisoner was detained by the order of the King, or of the Privy Council, the judges would look no further, and would refuse to grant a discharge. The statute of Charles II. required the judges, in the case of persons committed or charged with crime, to issue the writ in vacation as well as in term time, and to have it made returnable immediately, and it provided for a judi- cial examination of the warrant on which the prisoner was held, for the purpose of allowing him to give bail in a proper case, and with a view to his discharge if there were no legal grounds of de- tention. There were severe penalties imposed upon officers and keepers who should interfere with the efficient working of the writ, and also upon any one who should re-commit the prisoner, if dis- charged, for the same offence. These provisions made the writ truly efficacious, and the bulwark of liberty. The general provi- sions of this statute are adopted by re-enactment in the various to Archbishop Laud, and is believed to Blackstone saw it in the hands of Burnet's have been taken from him at his impeach- executors, and published a copj'' of it in ment, by "Warner, Bishop of Rochester. It Oxford, 1758. It is now in the British passed to his executors, who gave it to Museum. A facsimile may be found in Bishop Burnet. He says. History of his the work published by the English gov- Own Time, " It is now in mx hands, and ernment, called " Statutes of the Realm." came very fairly to me." Sir Vrilliam ^ 31 Car. II. c. 2. 48 THE LAW OF PEESONS. States of this country. The original statute was, however, cir- cumscribed ill its effect in one respect, being- confined to persons charged with crime. By later statutes in England, its provisions have been extended to other cases of arrest and detention, and there are corresponding statutes in this country.^ The English Parliament may, in unquiet times, suspend the privilege of habeas corpus, in which case one imprisoned has no moans of legally inquiring whether the confinement be illegal or not. In this country there is a constitutional provision on this subject : " The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it." ^ The Bill of Rights, which was enacted in 1689,^ is very impor- tant in American law, since a number of provisions are copied from it verbatim in the United States and State constitutions. The following clauses may be referred to : The right of the subject to petition the king; the unlawfulness of raising or keeping a standing army within the kingdom in time of peace, unless with consent of Parliament ; the right of subjects to have arms for their defence ; the rule that freedom of speech, and debates or proceedings in Parliament, arS not to be im- peached or questioned in any court or place out of Parliament ; that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. There is an important advantage obtained by copying into our constitutions the very words of English state papers, because of the construction which had been previously put upon the words by the courts. Such construction may properly be regarded as becoming a part of the constitutional provision itself. The Act of Settlement was a statute enacted in the Parliament summoned Feb. 6, 1700.^ Its main object was to provide for the succession to the throne after the death of William III. and the Princess Anne of Denmark (subsequently Queen Anne), the Prin- cess Sophia, Electress qf Hanover, and the heirs of her body, being protestants. There are in this statute several provisions of gen- eral interest. One is that no person who has an office or place of profit under a king, or receives a pension from the crown, shall be capable of serving as a member of the House of Commons. Another is that the commissions of judges are to be made during 1 There are several writs of habeas corpus ciendum. The last won! directs subviission known to the old law, the object being in to such order as the court may make, each case to bring a person before a court. ^ Const. U. S. Art. I. § 9. They are designated respectively by ap- 3 i '^xn. & Mary, Sess, 2, c. 2. propriate Latin terms. The famous writ * 12 & 13 Wm. IIL c. 2. now referred to is habeas corpus ad subjU THE RIGHTS OF PERSONS. 49 good behavior, and their salaries ascertained and established, but that upon the address of both Houses of Parliament it may be law- ful to remove them ; and that no pardon under the great seal shall be pleadable to an impeachment by the Commons in Parliament. These provisions had been suggested by great abuses in legislation and in the administration of justice, and were designed for their correction. There was an imperfection in this statute, since there was no provision preventing the death of the king from putting an end to the office of a judge. It was a rule of the English law that the king was the " fountain of justice." One of the inferences from this proposition was that when the king died all of the judges went out of office. All courts were discontinued. To remedy this evil the Tenure of Judicial Office Act was passed.^ It thus happens that tlie tenure of office of a judge is now during good behavior, notwith- standing the demise of the king, unless he be removed in accord- ance with an address or formal vote of both Houses of Parliament. The English judges are more dependent upon Parliament than the judges of the Federal Courts are upon Congress, since in the latter case a judge can only be removed by impeachment, which is a species of trial for an offence, while an address in England is nothing more than a vote of legislative bodies. The statutes above referred to, with others, and with general rules of public law, make up the English Constitution. As they originate with Parliament, they do not bind it, but may at any time be repealed. Similar provisions in American Constitutions may be made to serve not merely as a check upon the executive, as in England, but also on the legislature and the judiciary. That branch of constitutional law which we term " constitutional limitations," has no existence in England, and from the nature of the case cannot have, while the present Parliamentary system continues. These great principles of the English Constitution came to be accepted law in a number of the colonies before the Revolution. Connecticut adopted Magna Charta as early as 1639 ; New York, in 1691 and 1708. It was maintained firmly that taxes were not to be levied without the consent of the legislative department of the colonies. It was a prevalent view in England that no Act of Parliament was binding upon the colonies, unless they were specially named in the Act. If named, they were subject to the legislation of England, as being a portion oi the country. The colonies so far as they were left to themselves legislated in their own way, not interfering with the prerogative of the king or im- 1 1 Geo. III. c. 23, A. D. 1760. 4 50 THE LAW OF PERSONS. pairinjr their tie of allegiance to the mother country.^ The power of Icgtslation was deemed to be quite different in the case of a colony of English subjects and in that of a conquered country. In the former case, the people of the colony could only be taxed by the Parliament, or by and with the consent of some representa- tive body of the people of the colony, properly assembled by the authority of the king or crown ; in the case of a conquered coun- try, they might be taxed under the right of conquest, without the action of Parliament or of a colonial legislature.^ The constitutional safeguards of the rights of individuals worked out in England appear to a considerable extent both in the United States Constitution and in those of the respective States. Only such as concern the right of personal security and freedom will be stated in this' connection ; such as relate prin- cipally to property will be treated hereafter. Provisions on the subjects of personal security and personal liberty will be found both in the United States Constitution itself and in the Amendments. There is an important distinc- tion between the effect of such Amendments as are prior to the Thirteenth, and the later ones, viz., the Thirteenth, Fourteenth, and Fifteenth. The first twelve concern the working of the United States government, and do not bind the action of the States.3 A Territory, however, is governed by these Amend- ments.* (a) Accordingly, the first branch of the Seventh Amend- ment to the effect that " in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," does not extend to the State courts.^ 1 The colonists grew restive very early, ions of Attorney and Solicitor-General on Evelyn, then a member of the Piivy the Extension of the Laws of England to Council, in his Diary, under date of Aug. 3, the Colonies, May 18, 1724. 1671, says that the council sent a trusted ^ Livingston v. Moore, 7 Pet. 469, 551; messenger "to inform them of the condi- Fox v. The State of Ohio, 5 How. (U. S.) tion of the colonies, and whether they 410, 434 ; Twitchell v. The Common- were of such power as to be able to resist wealth, 7 Wall. 321 ; United States v. his Majesty and declare for themselves as Cruikshank, 92 U. S. 542 ; Spies v. lUi- independent of the Crown, which we were nois, 123 U. S. 131, 166. told, and which of late years made them * Webster v. Reid, 11 How. (U. S.) refractory." He adds, "Colonel Middle- 437. ton, being called in, assured us they might ^ Edwards v. Elliott, 21 Wall. 532 ; be curbed by a few of his Majesty's first- Walker v. Sauvinet, 92 U. S. 90 ; Pearson rate frigates." v. Yewdall, 95 U. S. 294, 2 Chalmers' Colonial Opinions; Opin- (17) See also Reynolds v. United States, criminal cases arising in the Territories. 98 U. S. 145, 154. In this case it seems The provisions in the Constitution relating to be recognized without question that the to trial by jury are in force in the District Sixth Amendment to the Constitution es- of Columbia. Callau v, Wilson, 127 U. S. tablishes the right to trial by jury in 540. THE RIGHTS OF PERSONS. 51 Tlie latter clause of the same Amendment, which declares that " no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the com- mon law," applies to a review by the Supreme Court of the United States of a trial in a State court.-^ On the other hand, the last three Amendments which were the outcome of the civil war, bind the States, as they are expressly named. The first paragraph of the Fourteenth Amendment is of the utmost importance. After declaring what persons are citizens of the United States and of a State, it proceeds : " iVo State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Turning now to the body of the Constitution, there will be found provisions of the kind now under consideration, binding the action of a State as well as of Congress, or prescribing a rule for the action of the judicial power of the United States. The whole sub- ject is thus capable of a twofold sub-division : (1) clauses acting upon the general government ; (2) clauses acting upon the States. Constitutional Directions and Restrictions acting upon the General Government. These are capable of classification under a number of general heads. I. — Restrictions upon improper or vicious legislation usurping judicial methods. (1) No bill of attainder shall be passed. (2) No ex post facto law shall be passed. II. — Regidations jyreventing unnecessary or harmful interference hy Congress with the freedom of the individual. (1) Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. (2) Congress shall make no law abridging the freedom of speech or of the press. (3) Congress shall make no law abridging the right of the people peaceably to assemble and to petition the government for a redress of grievances. (4) No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law. 1 Justices V. Murray, 9 Wall. 274. 52 THE LAW OF PERSONS. (5) The riglit of the people to keep and bear arms shall not be infringed. 111. Restrictions affecting the administration of justice. (1) The privilege of the writ of habeas corpus shall not be suspended (except in special enumerated cases). (2) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and parti- cularly describing the place to be searched, and the persons or things to be seized. (3) The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not com- mitted within any State, the trial shall be at such place or places as the Congress may by law have directed. (4) In all criminal prosecutions, the accused shall enjoy the riglit to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. (5) Regulations as to the methods, progress, and results of a criminal trial. 1. No person shall be held to answer for a capital or other- wise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger. 2. Proceedings in all criminal prosecutions. a. The accused shall enjoy the right to be confronted with the witnesses against him ; h. to have compulsory process for obtaining witnesses in his favor ; and c. to have the assistance of counsel for his defence ; d. no person shall be compelled in any criminal case to be a witness against himself. 3. No person shall be subject for the same offence to be twice put in jeopardy of life or limb. (6) General regulations. 1. No person shall be deprived of life, liberty, or property without due process of law. 2. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (7) Trials in the Federal courts in civil actions. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any THE RIGHTS OF PERSONS. 53 court of the United States, than according to the rules of the common law. For purposes of explanation we shall review some of these particulars. I. — (1) No bill of attainder shall be passed, (a) The prohibition as to such legislation extends to the States as well. The meaning of the word " bill " in this clause is " law." The vicious character of such legislation consists in the fact, that it enacts guilt by statute, instead of establishing it by judi- cial proceedings and a recognized method of trial. ^ Before the adoption of the United States Constitution, bills of attainder could be validly enacted by a State legislature if there were no restrictions to prevent it in the State constitution.^ A bill of exemption from liability is not a bill of attainder.^ An Act of Congress which provided that no person should be admitted to the bar of the Supreme Court of the United States unless he took a specified oath, was declared to be within this principle.* Many cases arose in New York, and other States after the Revolutionary War, under various acts of attainder passed in the States. The authorities cited show that bills of this kind di- rected against a class of persons are prohibited, as well as such as name individuals. When the punishment is less than death, the statute is called a bill of pains and penalties. The prohibition equally applies whether the punishment be absolute or conditional.^ The great object of the constitutional provision is to secure the citizen against deprivation of his rights for past conduct by legislative enactment under any form, however disguised.^ (2) No ex 2^ost facto law shall be passed. (5) The phrase ex post facto law, is borrowed from the common law, where, how- ever, it has a different meaning from tliat which is attached to it in the United States Constitution. Its true sense is to be sought in the decisions of the courts in interpreting the Constitution. 1 A striking instance of this is found ^ Drehman v. Stifle, 8 "Wall. 595. in the statutes of Henry VIII. The cook ■* Ex parte Garland, 4 Wall. 333. See of the Bishop of Rochester having mingled also Murphy, etc. Oath Cases, 41 Mo. 339, poison with the food prepared by him for 388 ; Cummings v. The State of Missouri, the bishop's guests, Parliament passed a 4 Wall. 277. law without any judicial proceedings, — ^ Cummings f. The State of Missouri, that the cook be boiled to death. supra. 2 Cooper V. Telfair, 4 Dall. 14 ; Hylton ^ Cummings v. The State of Missouri, V. Brown, 1 Wash. 293, 307 ; De Lancey supra. V. McKeen, Id. 354. (a) Constitution of the United States, (b) Id. Art. I. § 9, cL 3. 54 THE LAW OF PERSONS. A distinction must be taken between a law which is simply retrospective and one which is ex post facto. The word " retro- spective" standing by itself is a broad term including all laws which act upon a past transaction, and therefore includes both civil and criminal cases. The phrase ex post facto is confined to such laws as act backward upon a crime, and operate in any way to the disadvantage of the accused. Other laws not having this element of " disadvantage " might be retrospective, but they would not be ex post facto. The modes in wdiich a law may be ex post facto are various. An attempt was made in an early case to classify them. Ac- cording to this classification, which is useful though not exhaus- tive, the expression includes : (1) Every law that makes an act done before the passing of the law, which was innocent when done, criminal, and punishes such act ; (2) every law that aggravates a crime or malies it greater than it was when com- mitted ; (3) every law that changes the punishment and in- flicts a greater punishment than the law annexed to the crime when committed ; (4) every law that alters the legal rules of evi- dence, and receives less or different testimony than the law required at tlie time of the commission of the offence in order to convict tlie offender.^ These enumerations should be regarded only as instances. Tlie broad and comprehensive principle is, that every change, be it in the substantive law or in procedure, which alters the situation of the accused to his disadvantage, is ex post facto and void by the rule of the Constitution.^ (a) The question whether the change in the law is or is not to the prisoner's disad- vantage, is a question for the court. A change in the law which simply enlarges the class of persons who may be competent to testify in criminal cases does not fall within the principle.^ Such an enlargement is but a variation in a mode of procedure, resting from time to time upon varying legislative views of public policy, and is something in wliich the accused has no vested right. In accordance with this principle, it has been decided that a legis- lature cannot change retrospectively the kind of punishment, as, for example, to substitute hard labor for hanging, or vice versa.'^ 1 Calder v. Bull, 3 Ball. 386, 390. 8 Hopt v. Utah, supra, p. 590. See 2 Kriug V. Missouri, 107 U. S. 221. This also Gut v. State, 9 Wall. 35. decision was made by a narrow majority * Hartung v. The People, 22 N. Y. of the juflges. It, however, seems to be 95 ; Fletcher v. Peck, 6 Craiich, 87, thoroughly sound and conservative. See 138. also Hopt V. Utah, 110 U. S. 574, 588, 590. (a) Medley, Petitioner, 134 U. S. 160. THE RIGHTS OF PERSONS. 55 If the law plainly reduce or remit a part of the punish- ment, it is not unconstitutional. This is plainly implied in the general statement that the change must operate to the pris- oner's disadvantage. It has also been so held in a number of cases.i It is not ex post facto to pass a law which requires the past history of a criminal to be taken into consideration in prescribing punishment, even though that history disclose a prior conviction for a criminal offence. The object of such a law is to have the fact brought to the attention of the court, that the prisoner is a persistent criminal towards whom mercy is misplaced, and that punishment has done him no good.^ It has been held that a statute providing for a correction of an erroneous judgment in a criminal action is not ex post facto. ^ If a law act improperly upon past offences, and at the same time provide a rule for the future, it may be void so far as it is ex post facto, and valid in its other applications.* A statute pro- viding retrospectively for the seizing and destruction of liquors, being a civil proceeding, would not be ex post facto. The matter must be criminal, in order that the question may arise.^ Every law which can be enacted by any authority in this country, whether it be by Congress, State or territorial legislature, or be found in a State constitution, will be void if ex post facto and may be so decided as to each instance by the Supreme Court of the United States.^ In accordance with these general principles, it has been held by the Supreme Court of the United States that a State statute making solitary confinement applicable to a prior criminal of- fence, and making the time uncertain (within a range of four weeks) as to when the sentence of death should be carried out, is unconstitutional and void.'' 11, — (1) Congress shall make no law respecting the establish- ment of religion or prohibiting the free exercise thereof, (a) It will be observed that this clause is limited by express terms to tlie action of Congress. There is nothing in the United States Constitution to prevent the establishment of religion by a State. 1 Haire v. State of Nebraska, 16 Neb. ^ As to Congress, see Constitution of 601; Melnturf y. State, 20 Tex. App. 335 ; the United States, Art. T. § 9, cl. 3. As Garvey's Case, 7 Col. 381 ; State v. Kent, to the States, Art. I. § 10, cl. 1. The 65 N. C. 311. nature of an ex post facto law is well stated 2 The People v. Raymond, 96 N. Y. 38. in the case of Lindzey v. State, 65 Wish. 3 Ex parte Bethurum, 66 Mo. 545. 542. 4 Jaehne v. The People, 128 U. S. 189. ^ Medley, Petitioner, 134 U. S. 160. 5 McLean v. Bann, 70 Iowa, 752. (a) Art. I. of Amendments. 56 THE LAW OF PERSONS. It was thought best by the people of the United States to leave the whole subject of religious liberty to the action of the respec- tive States.^ The constitutions of the respective States so far as they refer to religion are framed in a spirit of liberality so as not to offend liberty of conscience or of worship.^ In the constitution of New Hampshire (1792, as amended), it was required that certain officers as well as members of the legislature should " be of the Frotedant religion.'''' ^ In practice this test has never been ap- plied, and the constitutional provision has been a dead letter.* Some of the State constitutions require that no person shall be compelled to pay tithes or taxes for supporting ministers or sus- taining churches.^ The clause in the United States Constitution concerning reli- gious liberty cannot be invoked by the people of a Territory to justify on the pretence of religion, immoral overt acts, contrary to the laws of Congress ; as for example, plural marriages.^ {h) Congress has full and complete power over the territories (subject to restrictions of the Constitution upon its legislation) and may either legislate for them directly, or declare an act of a terri- torial legislature void, or validate a void statute enacted by such legislature.^ (2) Congress shall make no law abridging the freedom of speech or of the press, (c) The object of this clause, as it imports in its very phraseology, was to QQCxxYQ freedom of speech and of the press. This expres- sion can only be fairly held to mean freedom to do a lawful act. It cannot be extended to immoral publications, as, for example, 1 Permoli v. First Municipality, 3 How. * Remarks of a majority of the court, U. S. 589, 609. The new States" admitted 53 N. H. p. 130. since the adoption of the United States ^ Constitution of Iowa, Bill of Rights, Constitution stand on the same footing as Art. 1, § 3, considered in Moore v. the original thirteen States. Id. Monroe, 64 la. 367, 368. See also con- 2 Constitution of New York, Art. I. struction of Constitution of Ohio as § 3, Constitution of N. J., Art. I. § 3, to religious instruction in schools, (a) Constitution of Ohio, Art. I. § 7, and other Board of Education v. Minor, 23 Ohio St. States. 211. ^ This expression was construed in the ^ Reynolds v. United States, 98 U. S. case of Hale v. Everett, 53 N. H. 9. The 145. dissenting opinion of Doe, J., on p. 133 ef "^ National Bank v. County of Yankton, seq., is remarkable for its historical infor- 101 U. S. 129. mation. {n) See Constitution of Wisconsin, Art. is a note upon the subject of religious in- X. § 3. Also Art. I. § 18. These sec- struction in public scliools, citing all the tions were construed in State v. District authorities. School Board of Edgerton, 76 Wis. 177. (/;) Davis v. Beason, 133 U. S. 333. s. c. 29 Am. Law Reg. n. s. 286, where there (c) Art. I. of Amendments. THE EIGHTS OF PERSONS. 57 obscene publications, (a) It has been held that the test of obscenity is, whether the tendency of the matter is to defame and corrupt the morals of those whose minds are open to such influences, and into whose hands the publications might fall. A law prohibiting the deposit of such letters in the mail is constitutional.^ (6) A letter vulgar, libellous, and imputing an atrocious crime is not necessarily obscene.^ (3) and (4) These provisions scarcely need comment.^ The right to petition does not include such petitions as are in their nature malicious and designed to cause injury."* The clause concerning quartering soldiers in time of peace upon private citizens is not likely to be a practical subject under our system, though under an arbitrary government it might be made a means of intolerable oppression. It was inserted in the Constitution in its present form as borrowed from the " Petition of Right " adopted by the English Parliament in the time of Charles I. (5) A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. (tZ) This clause is drawn with considerable care, as- it purports to give the reason for the reserved right of the people to keep and bear arms. It is, that there may be a well-regulated militia for the purpose of public security. The clause lends no sanction to 1 United States v. Bennett, 16 Blatch. States v. Loftis, 8 Sawy. C. Ct. 194 ; and iu 338, construing U. S. Rev. St. § 3893, United States v. Comerford, 25 Fed. R. as amended by act of July 12, 1876. The 902. true construction of this act has been the ^ United States v. Wightman, 29 Fed. subject of great judicial controversy. A R. 636. (c) sealed letter is said to be within the statute ^ See a?i ing no disturbing effect upon existing titles. Violation of tihis ) statute leads to forfeiture, to be enforced by the attorney-geneithe \ of the United States. ^he \ III. Alien Enemies. — Thus far it has been assumed that ai alien, whether under or free from disability, is a friend. Ili time of war with the country of which he is a subject or a. citizen, new questions will arise. Two distinct cases of disability may exist in time of war. One^ is, where a citizen of this country is domiciled in the country with which the United States are at war. Such a person, though not strictly an enemy, is to be deemed so with reference to the seizure of so much of his property concerned in the trade of the enemy as is connected with his foreign residence. This character, gained by foreign residence, may be shaken off as soon as he puts himself in motion to leave the foreign country with no intention of returning there.^ Leaving this special case out of view, an alien enemy is subject to the following disabilities. (1) He has no standinc/ in our courts. He cannot prosecute any suit in the courts of this country. He cannot sustain a claim in a prize court.^ There is an exception to this rule where the 1 Ch. 340, Laws of 1887. 3 The Emulous, 1 Cxall. 563 ; Johnson 2 The Venus, 8 Cranch, 253. v. Thirteen Bales, &c. 2 Paine, 639. He provided the title is derived through such notwithstanding the fact that he is a non- woman or an ancestor who was a citizen of resident alien, if the title is derived from the United States. Laws of 1889, eh. 42. a citizen of the United States. Laws of By a still later statute any person may in- 1893, ch. 207. herit or take real property in Xcw York, 138 THE LAW OF PERSONS. cause of action arises out of a trade licensed by the United States, siuce the right to sue is an incident to the right to trade and to contract.^ Such a license may sometimes be presumed, as, for example, where a merchant resided here before the war, and con- tinued to do so until the time of the commencement of the action.^ An alien dt)miciled here before the war, and continuing here, owes allegiance, and, if he gives " aid and comfort " to the enemy, is liable to prosecution for treason.^ (2) His contracts as to the matter of legality. Two general cases must be considered : first, contracts between citizens of the foreign State, not in aid of the war, and afterwards sought to be enforced in our courts. Such a contract is valid and enforceable here. This rule was applied to contracts made in the Confederate States during the late Civil War.^ If such a contract had been made in aid of the rebellion it would have been treated as void by yiv courts.^ The second class includes contracts between citizens •isgi^two countries at war with each other. Such a contract is con- ■ 3-ge Yj to " ublic policy and void. It will be invalid even after peace ( o^ *esta] '^ bed, because it is void in its inception.^ alicT' acar | contract were made in time of peace, a subsequent varrj^j >le s ^ot make it void in its inception. The right of action CO- i]^ .pended during the war, but will in general revive after se> jace .eclared. There may be special cases in which the con- ^^ -ract ir>- issolved. An instance may be that of a policy of life fi^'nsurance, with payments of premiums to be made at recurring ntervals during the war. While the war continues, the pay- foiments must be suspended. A difference of opinion prevails as to the point whether this state of things dissolves the contract, or whether it revives in time of peace. The Supreme Court of the United States has decided that the entire contract in this particular case is dissolved, owing to the peculiar nature of the contract of life insurance when based upon periodical payments by the insured.' The time of payment is material and of the essence of the contract.^ So an agent, having authority before may sue in an admiralty as distinguished ^ Desmare v. United States, 93 U. S. from a prize court. United States v. 605. Shares of Stock, 5 Blatch. 231. 6 Hart v. United States, \h Ct. of 1 Crawford v. The Wm. Penn, Pet. C. Claims, 414 ; Craft v. United States, 12 Ct. 106 ; Usparicha v. Noble, 13 East, Ct. of Claims, 178 ; Griswold v. Wadding- 332. ton, 16 Johns. 438 ; Willison v. Patteson, 2 Otteridge v. Thompson, 2 Cranch, C. 7 Taunt. 439 ; Matthews v. MeStea, 91 Ct. 108. U. S. 7 ; Ins. Co. v. Davis, 95 U. S. 425. 8 Carlisle v. United States, 16 Wall. ^ New York Life Ins. Co. v. Statham, 147. 93 U. S. 24 ; Ins. Co. v. Davis, 95 U. S. * Wilmington R. R. Co. v. King, 91 425. T;. S. 3 ; Lockhart v. Horn, 1 Woods, 8 ^ew York Life Ins. Co. v. Statham, "-"• Ins. Co. V. Davis, supra. CITIZENS AND ALIENS. 139 the war to collect debts in the enemy's country, may with the con- sent of the creditor continue to do so after the war, so that the payment will be a discharge to the debtor ; but without such con- sent the agency is absolutely tei-minated.i In the case cited in the note it was said, " that war suspends all commercial inter- course between the citizens of two belligerent countries or States, except so far as may be allowed by the sovereign authority, has been so often asserted and explained in this court within the last fifteen years that any further discussion of that proposition would be out of place." ^ A different view of the rule governing life insurance in such a case has been taken by the New York Court of Appeals, where it was decided that the payments were only suspended during the war, and that the right to make them, with interest added, revived in time of peace.^ It seems that the lawfulness of commercial intercourse in such cases may depend on the place of one's domicile. Thus, one who fled from the Confederate States when the war broke out might, by an agent appointed before the war, carry on ordi, iry com- mercial intercourse within the lines of the enemy, o.ile this would not be true of one who, being domiciled in ^^^^J the loyal States, was at the time living within the F ■• : the Confederacy.^ lY. The Right of Expatriation. — The right to expa. e Oi., i self, and thus become an alien, has been largely discuss <,. If tl. common-law doctrine of allegiance is to be sustained there can ' no absolute right of this kind, nor can any such right be concede, by a nation consistently with the power of a society of men to co, tinue its national existence. A nation with the absolute right (. expatriation once established, would not be a coherent and single body, but a mere aggregation of individuals withont any tie bindinp them together. In time of war it could not resort to a ^c?"\'^"'''^ y draft, nor could there be any adequate security for the fulfilment of treaties or other public engagements. The state, on its part, might with equal propriety claim the right to repudiate a citizen at pleasure. Jurists and judicial tribunals have refused to recog- nize any absolute right of expatriation, and have declared that the asseyit of the nation is in some form necessary. Legislative bodies have made declarations upon this subject of a different character. By the Revised Statutes of the United States,^ it is recited that " whereas the right of expatriation is a natural and 1 Ins. Co. V. Davis, 95 U. S. 425. * Quigley v. United States, 13 Ct. of 2 Id. p. 429. Claims, 367. 3 Sands v. N. Y. Life Ins. Co., 50 N. Y. 5 § 1999. 626. ' 240 THE LAW OF PERSONS. inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness ,■ and whereas in'^the recognition of this principle this Government has freely received emigrants from all nations, and invested them with the rights of citizenship ; and whereas it is claimed that such Amer= ican citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof ; and where- as it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally dis= avowed," it is accordingly and finally declared that " any declara- tion, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is inconsistent with the fundamental principles of the Republic." It will be observed that the main object of this provision is not to declare the right of American citizens to expatriate themselves, but that it seeks to affirm that the citizens of other countries may do so. It. is addressed to officers of the United States and not to courts, file courts having established a different rule, the law could..otar cely be changed by a mere legislative affirmation of a pi-incipi s abstract and unlimited in its terms as that contained in the section referred to. / CHAPTER Y. HUSBAND AND WIFE. Preliminary remarks as to the " domestic relations. " — By the expression "domestic relations" is meant four great classes of relations, — husband and wife, parent and child, guardian and ward, and master and servant. Out of these spring "relative rights," as distinguished from the mere absolute or strictly per- sonal rights previously considered. One of these relations — husband and wife — is derived wholly from contract. Another — master and servant — is at the present time a pure contract relation, except in the case of apprentices, which is governed largely by legal or statutory rules. The other two have no contract element. They have in law certain legal or equitable rules attached to them. It is not enough that out of these spring certain natural or moral obligations. Before they can be enforced in a court of justice they must ripen into legal rights. In a broad sense, it may be said that all of these rights have their origin in the family or family relation, and that all still show traces of their origin. Questions arising in respect to them will not necessarily be solved by an appeal to the law of contracts. Each branch of the subject must be studied by itself, and to a considerable extent (particularly in the rules governing marriage) from an historical point of view. Owing to these complex rights, a wrongful act by a third person may be both a violation of an absolute right and of a relative right. Thus, if a wife be injured by the negligent act of a stranger, an action may be brought for the injury by her, and an independent action for the loss of her services and society by her husband. Similar rules are extended to injuries to a child or servant depriving a parent or a master of their services. Sometimes an injury may be done to the relative right where there is no violation of the absolute right. An instance is that of the seduction of a daughter while in her father's service. While no legal right of the daughter may have been violated, owing to her consent, the father may still sue for loss of service. 142 THE LAW OF PERSONS. The first relation which -will be considered is that of husband and wife. As the topic is an extensive one, it will be presented under three divisions, treating of the Creation, the Dissolution, and the Legal Consequences of the relation. DIVISION I. — The Creation of the Relation of Husband and Wife. Section I. Capacity to Contract 3Iarriage. — It is a general rule of law that capacity to contract is presumed, and one attack- ing a contract must show incapacity. Cases of incapacity to enter into a marriage contract are divisible into two principal classes : one involves a lack of power to consent ; the other assumes the mental power, but denies capacity to make the con- tract on grounds of public policy. Instances of the first class are defect in age, idiocy, and insanity. Under this head may also be conveniently stated cases where the mental power is sufficient, but the will is not exercised in the particular instance owing to force or fraud. Cases of the second class are consanguinity, affinity, and prior marriage. Here may also be placed the case of corporeal impotence. These are of general application, except affinity. There may also be local incapacities, such as a prohibition of one divorced for adultery to marry during the life of the other part}^ or that members of a royal family shall not marry without the consent of the monarch. 1 We shall first consider the disabilities arising from lack of power to contract. (1) Defect in age. — The rule of the common law is that the male must be fourteen and the female twelve years of age. If either party be under that age, the marriage may by common law be treated as void by either party when the incapacitated person arrives at the proper age. This rule of the common law is not founded in a true sense of justice, as it enables an adult to marry a minor and then break the contract at will.^ If the ages of the parties be sufficient, consent of parents or guar- dians is unnecessary at common law.-*^ The common law on this subject is the ecclesiastical law. It was in conformity with the spirit of the Romish Church, which abrogated the "paternal authority " of the Roman or civil law, and placed it in the ^ 12 Geo. III. c. 11. the parties freely cohabit as husband and 2 It is changed by statute in New York, wife. Code Civ. Pro. § 1744. so that only the infant can bring an action 3 By ch. 24, Laws of 1887, the age of for divorce. Nor will any such divorce consent in New York to a marriage is be granted if, after full age is attained, eighteen in the case of males and sixteen in the case of females. HUSBAND AND WIFE. 143 hands of the Church. So that the marriage of males of fourteen and of females of twelve was unquestionably valid by the law of England, before the statutes on the subject, with or without the consent of the parents. ^ By statute in New York the marriage of a female under sixteen may be declared void if it took place without the consent of her father or other guardian. ^ (2) Mental unsoundness. — In deciding the question whether a person has sufficient mental capacity to contract a marriage, the question for the court is whether the mind of the party was dis- eased when the contract was entered into. If so, the court will not inquire as to the extent of the derangement. ^ The court does not, as in many testamentary cases, deal with varieties or degrees of strength of mind. The question is one simply of health or disease of mind. If any contract more than another is capable of being invalidated on the ground of the insanity of either of the contracting parties, it should be the contract of marriage, — an act by which the parties bind their property and their persons for the rest of their lives.* In other cases it is said that the same degree of mental power which will enable him to make a deed or will is sufficient to enable him to enter into a marriage. ° It is an important question whether the marriage (in case of the insanity of one of the parties) is utterly void, or only voidable at the election of the insane party or of some relative or other person interested to avoid the marriage. Many of the cases say that it is absolutely void. There are, however, serious objections to this view. One is that the question of invalidity may be raised, not by a direct proceeding, but collaterally, and by any person. This would be highly inconvenient in practice. Respectable authorities hold that it cannot be raised collaterally. Another objection is that this view enables the other party, being of sound mind, to enter into a marriage to subserve some purpose of his own, it may be, sinister, and then, after accomplishing it, to repudiate the contract at will. Nothing can be more repugnant to justice, and even to public decency, than such a view. There are some forcible remarks in a recent English decision upon this point. ^ All the cases agree that a divorce in such a case is 1 Sherwood v. Ray, 1 Moore, P. C. C. suffices. Banker v. Banker, 63 N. Y. 353, 398. In this case the arguments of 409. counsel are most able and instructive. * Hancock v. Peaty, supra, p. 341. 2 Code of Civ. Pro. § 1742. 6 Atkinson v. Medford, 46 Me. 510. ^ Hancock v. Peaty, L. R. 1 P. & D. 6 in Hancock v. Peaty, supra, p. 341, 335; 36 L. J. (Mat. Cases) 57. If the mind it is said, "It may well be that cases be sound at the time of the marriage, it might arise in which the husband should 144 THE LAW OF PERSONS. suitable und proper. It is difficult to see how a divorce court would have jurisdiction in a direct proceeding to declare the contract void, when it was already before any such declaration utterly void. Tlie New York statute referred to in the note has set this matter at rest by providing that an action to annul the mar- riage can only be maintained in behalf of the idiot or lunatic, or some relative having an interest to avoid the marriage. ^ It is a rule of the common (ecclesiastical) law that relatives or others having a pecuniary interest in avoiding a voidable marriage may become plaintiffs in a divorce court in a suit to annul the marriage. ^ The case cited in the note was that of a marriage alleged to be void on account of affinity, but the rea- soning extends to other cases of voidable marriages. (3) Force and fraud. — The case of a marriage obtained by force is not now often presented to the courts except in a crim- inal aspect. Statutes must be consulted upon this subject.^ (a) A marriage obtained by fraud is voidable, and not void. The defrauder will not be allowed to take advantage of his wrongful act. The divorce can only be obtained by the injured party, or by some person interested to avoid the marriage.^ The fraud here intended does not consist merely in disingenuous represen- tations concerning property or social position;-^ it must be be shown to have entered into the marriage of the lunatic who has an interest to avoid contract with a full knowledge that the the marriage. Such an action may also woman he was taking as his wife was be maintained hy the lunatic at any time insane, and in such a case it might be after restoration to a sound mind ; but in doubted whether he would not be es- that case the marriage shall not be annulled topped from coming into this" (divorce if it appears that the parties freely cohab- court), " or any other court, to disaffirm ited as husband and wife after the lunatic his own act and allege her to be insane was restored to a sound mind." whom, with a knowledge of all the facts, he ^ Sherwood v. Ray, 1 Moore P. C. C. had treated as sane, when it served his 353. The whole subject of "interest " for purpose to do so." this purpose is thoroughly discussed by 1 Code of Civ. Pro. § 1746. "An counsel in this case. The argument of action to annul a marriage, on the ground Mr. Austin is particularly noticeable, that one of the parties thereto was an idiot, See also Faremouth v. Watson, 1 Phill. may be maintained at any time during the 355. life-time of either party by any relative of ^ The English law is found in 24 & 25 the idiot who has an interest to avoid the Vict. c. 100, § 54, as modified by 27 & 28 marriage. Vict. c. 47. For Kew York law, see "§1747. An action to annul a marriage Penal Code, § 281. on the ground that one of the parties * In New York, see Code of Civ. Pro. thereto was a lunatic, may be maintained § 1750, containing substantially the same at any time during the continuance of the provision as in the case of insanity, lunac}', or after the death of the lunatic in ^ Wakefield v. Mackay, 1 Phill. 134 n. ; that condition and during the life of the Klein v. Wolfsohn, 1 Abb. N. C. 134; Clarke other party to the marriage by any relative v. Clarke, 11 Abb. Pr. 228. (a) For a late case upon this subject, see Cooper v. Crane, [1891] P. 369. HUSBAND AND WIFE. 145 deception going to the very substance of the contract. An instance is the case where a man is induced to marry a woman at the time pregnant by another man, and the pregnancy is misstated or concealed. ^ The second class of cases, embracing those where there is no want of capacity to the act of consent itself, will now be adverted to. (1) Consanguinity and affinitij. — These may be grouped to- gether. Marriages between close relatives are void by the laws of all civilized nations as opposed to public policy and decency. The degree of relationship is not fixed with definiteness, but varies in different States or countries. The marriage would in general be unlawful between lineal relatives, and, in the col- lateral line, between brother and sister. As to more remote collateral relatives there is a diversity of regulation. Thus, in some States a marriage between uncle and niece and nephew and aunt would be incestuous; in others, not.2(a) Marriages in vio- lation of the rules respecting consanguinity are deemed incestu- ous, and the parties are made liable to criminal prosecution. ^ By the common law such marriages are voidable and not void. A divorce must be obtained while both the parties are living. The prohibition was originally derived from the canon or eccle- siastical law, finally converted into statute law in the reign of Henry VIII. The Acts of Parliament in that reign only made the marriage voidable, and adopted the rule that the divorce must be had during the life of both parties, and could only be questioned during the life of both parties.* At the present time in England incestuous marriages are utterly void to all intents and purposes whatever.^ 1 Scott V. Shufeldt, 5 Paige, 43. In 5 5 & g William IV. c. 54, passed Aug. this case, a white woman had a mulatto 31, 1835. child born to her, and at the same time, The law of England was in a singularly concealing the fact, stated to a white man unsettled condition upon this subject at that he was the father of the child, and the time of the American Revolution. The he, believing it, married her. Sloan v. so-called "prohibited degrees" are first Kane, 10 How. Pr. 66 ; Ferlat v. Gojon, 1 mentioned in 25 Henry VIII. c. 2'2, en- Hopkins (N. Y.), 478. Meyer v. Meyer, titled " An Act concerning the King's 49 How. Pr. 311. Succession," passed to legalize the king's 2 For example, there is no prohibition divorce from Queen Catharine and to bas- of such a marriage in New York, while tardize the Princess Mary. The " pro- there is in Alabama. See Campbell v. hibited degrees " will be found in section 3. Crampton, 18 Blatch. 150. The 28 Henry VIII. c. 7, repealed the ^ See in New York, Penal Code, § 302. former Act. It was passed to establish * Innocentius, Institutiones Canonici, the divorce from Anne Boleyn and to bas- 1-^32. tardize the Princess Elizabeth. In it the («) Such marriages are now incestuous and void in New York. See Laws, 1893, ch. 601. 10 146 THE LAW OF PEESONS. A leading instance, under the English statutes, of a marriage prohibited by affinity is that between a man and his deceased wife's sister. The act of William lY., already alluded to, hav- ing made these marriages utterly void, the courts have held that such a marriage is not only void when contracted in England, but that it creates a personal disability, following an English- man wherever he goes. This is true in the case of a naturalized as well as native Englishman.^ The rule extends to a marriage of a man with the daughter of a half sister of his deceased wife, and to illegitimate sisters as well as legitimate. ^ Disqualifica- tion to marry by reason of affinity does not prevail in this country. An important inquiry has arisen as to the point whether inca- pacity to marry on the ground of consanguinity by the law of the domicile will be recognized as fatal in the place where the mar- riage takes place. The better view would seem to be that in all questions of capacity involving the validity of the marriage in the courts of the place where contracted, the law of that place should govern. 2 It is quite a different question as to the view " prohibited degrees " were again stated. Auotlier Act, passed in the same year, re- fers to and confirms the former statute. 28 Henry VIII. c. 16. Next came the 32 Henry VIII. c. 38, that all marriages should be lawful between persons that were not prohibited by " God's laws " to marry ; and "that no reservation or pro- hibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees." It is said that the phrase " Levitical degrees " is used in this Act instead of " prohibited degrees" (the phrase used in the earlier statutes) for the purpose of rooting out the doctrine of "spiritual affinity," which prevented god- fathers from marrying their godchildren without license from the Pope. After Queen Mary's accession, and during her reign and that of Philip and Mary, all the prior legislation as to "prohibited de- grees " was repealed. 1 Mary, sess. 2, c. 1 ; 1 & 2 Philip & Mary, c. 8, "§§ 16, 17, 19. In Queen Elizabeth's reign the statute of Philip & Mary was repealed, and some of the older statutes revived. In this re- vival much confusion was occasioned, there being a double act to recognize nothing which impaired Queen Elizabeth's title to the throne and at the same time to con- tinue the prohibited degrees of consan- guinity. 1 Eliz. c. 1, §§ 2, 10, 11. The best conclusion from all this va- riety of enactments is, that the statute 32 Henry VIII. c. 38, and 28 Id. c. 16, re- mained in force by revival, and that the prohibited degrees are the " Levitical de- grees." Brook V. Brook, 9 H. L. Cases, 193. A table of these, compiled from the statutes of 25 Henry VIII. c. 22, and 28 Henry VIII. c. 7, are given by Lord Coke in his Institutes. 2 Inst. 683, and 2 Coke upon Littleton, p. 2b5 n., and see also 3 Burns's Ecclesiastical Law (3d ed. ), 402. 1 Brook V. Brook, 9 H. L. Cases, 193 ; s. c. 3 Sm. & G. 481 ; Sherwood v. Ray, I Moore, P. C. C. 398 ; Mette v. Mette, 1 Sw. & T. 416; Fenton v. Livingstone, 3 Macqueen, H. L. Cases, 497, 544. Simi- lar rules prevail in the case of other statu- tory prohibitions. Sussex Peerage Case, II CI. & F. 85, 137. Penal disabilities, however, do not follow the person in this manner. 2 Regina v. Brighton, 1 B. & S. 447. ^ This point was greatly considered in Sottomayor v. DeBarros, L. R. 2 P. D. 81; also on appeal L. R. 3 P. D. 1, and again L. R. 5 P. D. 94. There the mar- riage was contracted in England between two Portuguese who could not legally marry in Portugal, being first cousins ; but could, had they been English, have married in England. The lower court held that an English court was not bound to recog- HUSBAND AND WIFE. 147 to be taken of tlie same facts in the courts of the country where the parties are both domiciled. It is still more clear that the incapacity cannot be considered where one of the parties was domiciled in the place of the marriage, and the other abroad.^ (2) Corporeal impotence, —This is a cause of divorce involving the validity of the marriage contract. The marriage is not void, but voidable, and can only be questioned during the life of both parties, 2 The grounds on which invalidity may be urged are that as one of the incidents to marriage is consummation and the procreation of children, where consummation is impossible, the parties should not be tied together without the will of the injured party. " Impotence " may be maintained on two grounds : one is malformation of body (and this is the most common ca^e) ; the other is such a permanent mental condition as to the act of consummation (g. g.^ hysteria) as makes it impossible. ^ Mere wilful refusal of consummation is not of itself proof of impotence, though after a long period it may lead to an inference of it The incapacity must be permanent, else there is no valid ground for divorce.* Some of the additional rules on the subject are that the incapacity must have existed at the time of the marriage. Mere sterility will not suffice.^ If there is a prob- ability that capacity can be produced by a slight surgical opera- tion, the marriage will not be declared void; but the court cannot compel the wife to submit to it.^ Refusal to submit to inspection is a circumstance that may be taken into account in reaching a conclusion, and may lead to a divorce. " A presumption of impotency in English law arises from a cohabitation of three years without consummation. This is called the rule of "triennial cohabitation," It does not arise from a shorter period, and when it has arisen, it may be nize the incapacity, the marriage having L. R. 3 P. D. 1, reached an erroneous con- taken place in England. L. R. 2 P. D. elusion. 81. The appellate court reversed the de- ^ Sottomayor v. De Barros, L. R. 5 cision, holding that the English court P. D. 94. Simonin v. Mallac, 2 S\v. & must recognize the foreign disqualification, T. 67. where both parties were domiciled abroad. 2 a. v. B., L. R. 1 P. D. 559 ; P. v. S. On a new trial in the Probate Court the 37 L. J. (Prob. & Mat.) 80. case developed the fact that only one of the ^ P. v. L., L. R. 3 P. D. 73 n. ; G. v. parties was domiciled abroad. The Lord G., L. R. 2 P. & D. 287. President, in a convincing argument, held * S. i;. E., 3 Sw. & T. 240. In this case that the foreign law should not be con- the impotency was not congenital, sidered. His reasoning, however, is & Devanbagh v. Devanbagh, 5 Paige, equally applicable to the case where both 554, 556, 557. of the parties are domiciled abroad. L. R. 6 Devanbagh v. Devanbagh, 6 Paige, 5 P. D. 94. It is impossible, on a careful 175. survey of the whole subject, to avoid the '' L. v. L., L. R. 7 P. D. 16. conclusion that the appellate court, in 148 THE LAW OF PERSONS. rebutted.^ This rule does not at all affect the case where malformation is affirmatively proved. Great delay frequently occurs in this class of cases. This is not a strict bar to the action, but renders it necessary that the evidence should be highly clear and satisfactory. ^ Delay may also lead to the inference of bad faith, and require explanation. ^ In New York this troublesome branch of the subject is settled by statute. An action must be commenced before two jears have expired since the marriage.* (8) Polygamy. — This is prohibited by the laws of all civil- ized nations. A polygamous marriage is, in general, utterly void, so that no divorce is necessary. Such u marriage is criminal, punishable in the early English statute of 1604 by death. ^ There is an exception in the Act in favor of those whose husband or wife shall remain continually beyond the seas by the space of seven years together, or whose husband or wife shall absent himself or herself for seven years within her majesty's dominions, the one not knowing the other to be living within that time. There are other exceptions in favor of those who have been divorced in the ecclesiastical court. This statute has been the model of much American legislation upon this subject. The rules in New York are in substance the same, except that five years are substituted for seven, and another exception is added in favor of one who has been sen- tenced to imprisonment for life. This is on account of the doc- trine of "civil death " prevailing in that State. The punishment is reduced to imprisonment in the State prison for not more than five years. The text of the statute is found in a note.^ ^ Marshall v. Hamilton, 10 Jur. n. s. VI. c. 12, § 16. The foregoing statutes, 853 ; F. V. D., 4 S\v. & T. 86. as well as earlier and later acts, were re- '^ Castleden 1?. Castleden, 9 H. L. Cases, pealed by 9 Geo, IV. c. 31, in connection 186. -with 24 & 25 Vict. c. 95. The existing law 8 Ewens v. Ewens, 9 Jur. n. s. 1301. is found in 24 & 25 Vict. c. 100, as modi- 4 Code of Civ. Pro. § 1752. This is tied by 27 & 28 Vict. c. 47- practically a statute of limitations. Kaiser ^ i^ case of the absence of one of the V. Kaiser, 16 Hun, 602, parties for the period of five years, and the ^ 1 Jac. I. c. 11. The preamble to belief of the other party that he or she is this act is curious: "For as much as dead, the maniage is not wholly void, but divers evil disposed persons, being married, only from the time that it is so declared run out of one county into another, or by a court of competent authority. 2 R. S. into places where they are not known, and 139, § 6. there become to be married, having an- Penal Code, §§ 298-302, both inelu- other husband or wife living, to the great sive. § 298: "A person who, having dishonor of God, and utter undoing of a husband or wife living, marries another divers honest men's children and others, person, is guilty of bigaray and is punish- Be it therefore enacted," etc. able by imprisonment in a penitentiary or There are still earlier statutes, 4 Edw. State prison for not more than five years. I. St. 3 ; 18 Edw. III. St. 3, c. 2 ; 1 Edw. " § 299. The last section does not extend. HUSBAND AND WIFE. 149 Similar legislation is found in other States. There is also important legislation by Congress as to the territory of Utah. (4) Prohibition of mixed marriages, or of so-called ^'^ miscege- nation.^^ — Legislation of this kind is fomid in a number of the American States as applicable to marriages between whites and persons of African descent. This legislation is founded upon a local theory of public policy, and a belief that such marriages have an injurious effect upon society. ^ Under the Virginia law, the party claimed to be a negro must have one fourth negro blood. If he have one drop less, the marriage is not unlawful. ^ The North Carolina act on this subject is said in a recent case to be still in force. 3 The prohibition in Texas does not apply to mis- cegenation without previous marriage between the parties.* In Tennessee the marriage between a white person and one of mixed blood to the third generation is void ab initio.^ Such a marriage will be respected in North Carolina if marriage takes place in another State where the husband is domiciled, and the parties come there to reside;^ but this will not be the case if the parties simply go abroad to evade the North Carolina law and then re- turn. ^ By the laws of Georgia, white and colored persons cannot marry.^ (a) It is presumed that if a white man and colored 1, To a person whose formerhusband or wife has been absent for five years successively, then last past, without being known to him or her within that time to be living, and believed by him or her to be dead; or, 2, To a person whose former marriage has been pronounced void or annulled or dissolved by the judgment of a court of competent jurisdiction for a cause other than his or her adultery; or, 3, To a person who, being divorced for his or her adultery, has received from the court which pro- nounced the divorce permission to marry again ; or, 4, To a person whose former husband or wife has been sentenced to im- prisonment for life." § 300. This refers to the lawfulness of a trial in the county in which the de- fendant is arrested, as well as that in which the offence was committed. § 301. "A person who knowingly en- ters into a marriage with another which is prohibited to the latter by the foregoing provisions of this chapter, is punishable by imprisonment in a penitentiary or State piison for not more than five years, or by a line of not more than one thousand dollars, or both." A person may lawfully marry again on the very day that he is divorced. In such a case there would be no crime committed. Merriam v. Wolcott, 61 How. Pr. 377. 1 Kinney v. Commonwealth, 30 Gratt. 858 ; Green v. State, 58 Ala. 190. In Kinney v. Commonwealth, supra, the par- ties left Virginia and went for a few days to the District of Columbia, married, and returned. It was decided that the law of the domicile should govern, and the mar- riage was not onlj' declared void, but the parties were punished criminally. See also Frasher v. State, 3 Tex. App. 263 ; Exr. of Dupre v. Boulard, 10 La. Ann. 41]. 2 McPherson v. Commonwealth, 28 Gratt. 939. 3 State r. Hairston, 63 N. C. 451 ; State V. Reinhardt, Id. 547. * Moore v. State, 7 Tex. App. 608. » Carter v. Montgomery, 2 Tenn. Ch. 216. 6 State V. Ross, 76 N. C. 242. ^ State V. Kennedy, Id. 251. 8 Scott V. State, 39 Ga. 321. The law- ((') State V. Tutty, 41 Fed. R. 753. 250 THE LAW OF PERSONS. Avoman should leave a State where their marriage was prohib- ited and should marry in a State where there was no such lu-ohibition, the courts of the latter State would not hold the marriage void on account of its opposition to the law of their domicile. Interesting questions have arisen upon the point whether if slaves intended to marry, but were prohibited from doing so by Ihc law of their domicile, and afterwards lived together, a mar- riage could be inferred. Subsequent cohabitation is evidence of ratification. 1 This doctrine would not apply unless they had in- tended, while in slavery, to live as husband and wife, so far as the law would permit. ^ In some of the former slave States such marriages have been validated by statute since slavery was abolished. Such legislation is valid.® (a) The Kentucky court has held that a declaration before a clerk of the county by two former slaves legalized their " customary " marriage. It did not institute a new marriage.* The principle is well stated as follows : emancipation gave to the slave his civil rights; and a contract of marriage, legal and valid by the consent of the master and the moral assent of the slave, although dormant during the slavery of the parties, pro- duced from the moment of their freedom all the effects which result from such contracts among free persons.^ The relation assumed in the above proposition must continue down to the moment of emancipation, (h) The correct rule seems to be that if, after the emancipation, the parties live together as husband and wife, and if before emancipation they were married in the form which either usage or law had established for the marriage of slaves, the subsequent mutual acknowledgment should be held to constitute a valid marriage.^ fulness'of restrictions upon the marriages McGee, 12 Bush, 428. Laws of Ala. 1868, of diffl-rent races, etc., is discussed in Ordinance No. 23, approved Nov. 30, Lonas v. State, 3 Heisk. 287. 1867, amended Dec. 31, 1868, construed 1 Ross V. Ross, 34 La. Ann. 860 ; in Jackson r. State, 53 Ala. 472. Washington v. Washington, 69 Ala. 281. * Dowd v. Hurley, 78 Ky. 260. 2 Downs V. Allen, 10 Lea, 652 ; Wash- ^ Pierre v Fontenette, 25 La. Ann. ington V. Washington, supra. 617. On this theory no validating statute 3 Lawsof North Carolina, 1866, ch. 40, would he necessary. See also Minor v. and Code § 1281, construed in State v. Jones, 2 Redf. 289 ; Jones v. Jones, 45 AVhitford, 86 N. C. 636. See Ordinance Md. 144 ; Haden r. Ivey, 51 Ala. 381 ; of Ala., Sept. 29, 1865 ; Rev. Stat, of State v. Adams, 65 N. C. 537. Ky., Supplement 1866, No. 37, approved ^ Jones v. Jones, 36 Md. 447, 456. Feb. 14, 1866, constnied in Brown v. (re) Livingston v. Williams, 75 Tex. only where the eohahitation was exclu- 653 ; Scott v. Rauh, 88 Va. 721; Clement sive. Branch v. Walker, 102 N. C. 34. V. Riley, 33 S. C. 66. The statutes in {b) See Cautelou v. Doe, 56 Ala. 519. North Carolina were intended to operate HUSBAND AND WIFE. 151 Section II. The marriage contract itself. — (1) Its essential elements. — One essential element in a marriage contract is pres- ent consent to a marriage. This does not mean present assent to a cohabitation or mere act of living together, but to a marriage. It is accordingly of consequence to determine the true meaning of a marriage. A marriage may properly be defined to be the union for life of a man and woman having the capacity to marry, to the exclusion of all other persons. It must be the intent of the parties to constitute such a relation. But the intent alone is not enough. A rule of law must then attach which prevents them from dis- solving the relation even by mutual consent, or in any other man- ner than that which the law permits. Marriage is then initi- ated by contract. It, however, creates a condition or status over which the mere will of the parties no longer has any control, (a) In order that the subject be thoroughly understood, it must be studied historicallg. The development or evolution of this branch of the law must be sought, not merely in the law of contracts, but also in the law of the Church, or the canon law. At the time of William the Conqueror, ecclesiastical questions were separated from those of a temporal nature, and were dis- posed of exclusively in the ecclesiastical courts. Marriage and divorce were treated as ecclesiastical questions. In this way a system of marriage and divorce law was developed by church- men, who had recourse to the canon law for principles to guide their decisions. This system came to the American States by adoption, and with some modifications still prevails. There is thus a churchly or Christian element in this law which is peculiar to itself.^ The essential elements of a marriage contract are these: — First. There must be a true and serious assent. A marriage entered into as a joke, and so understood by both parties, is no true marriage.'"^ Still, if the outward signs of a true intent were present, it would seem that it could not be claimed that there was no real intent, as that is to be derived from expressions and outward acts. 1 Maine's Ancient Law, lltli Ed. pp. English common law borrows far the 158, 159. It is there said that the canon greatest number of its fundamental prin- law "in no one particular departs so widely ciples (upon the subject of marriage) from from the spirit of the secular jurisprudence the jurisprudence of the canonists, " p. 159. as in the view it takes of the relations 2 MeClurg v. Terry, 21 N. J. Ecj. 225. created by marriage." And again, "the Swinburne on Spousals, Sect. XI. par. 33. (a) Legislation annulling the relation against the impairment of contracts. of marriage is not within the prohibition Maynard v. Hill, 125 U. S. 190 ; State v. of the Constitution of the United States Tutty, 41 Fed. R. 753. 252 THE LAW OF PEESONS. Second. The marriage cannot be made by future words {verha de futuro), but only by present words {verba de prcesenti). The former would be an executory contract to marry, — an engage- ment, — and not an actual marriage. This principle will not be changed even though the words of future promise be followed up by cohabitation. At one time, in England, the ecclesiastical courts would order a marriage in such a case. That could not be done in any of the American States, as there is no ecclesias- tical tribunal here having compulsory power of this kind. The jurisdiction existed in England by reason of the fact that the ecclesiastical court was a true court established by law. Owing to the difference in our position, it is the prevailing view that such a case is simply a promise to marry ; and if cohabitation ensue, it is but a case of seduction. ^ (a) This principle is particu- larly applicable where the parties looked forward to a formal ceremony, and did not agree to become husband and wife with- out it. 2 Third. There must be freedom of will, absence of fraud, duress, etc. These have been sufficiently considered under the topic of " capacity. " (2) The form and requisites of the contract. — Foreign mar- riages. — The question as to the form of a marriage "is one of great difficulty. This grows out of the inquiry as to the influ- ence of the canon law upon the subject of form. There are two general modes of proving a marriage, — direct and indirect. The evidence is direct when an actual marriage is shown by testimony of eye-witnesses. It is indirect when the marriage is inferred from the acts of the parties and accompanying circumstances. Direct evidence. — There are certain cases in which direct evidence is necessary. These are prosecutions for bigamy and for " criminal conversation," ^ and perhaps an action for divorce.* 1 Cheney v. Arnold, 15 N. Y. 345, ^ The meaning of this expression is a where the whole subject is reviewed, civil action brought by a husband against Turpin v. Pub. Adm., 2 Bradf. 424 ; Dun- an alleged adulterer for the seduction of a can V. Duncan, 10 Ohio St. 181; Robert- wife. son V State, 42 Ala. 509 ; Peck v. Peck, * There may be other cases. This point 12 R. I. 485; Hebblethwaite v. Hepworth, is discussed in Collins v. Collins, 80 N. Y. 98 111. 126. 1. 10. See also Bishop on Marriage, Di- 2 Peck V. Peck, 12 R. I. 485 ; Port v. vorce, and Separation, vol. II. §§ 742-758. Port, 70 111. 484. (a) A presumption of marriage may the contract. Stoltz v. Doering, 112 111. sometimes De raised by a contract jmr verha 234 ; Cartwright v. McGown, 121 111. 388. defuturo followed by cohabitation ; but See also Bishop on Jlarriage, Divorce, and this is rebutted by proof that cohabitation Separation, vol. I. §§ 353-377. was not intended as a consummation of HUSBAND AND WIFE. 153 The point would then arise, what would it be necessary to prove in such a case. According to the rules of English law, as laid down by the highest court, there is no sufficient direct evidence of a marriage unless it took place in the presence of a priest. The " priest " here intended is one in holy orders recognized by the Church of England. It was accordingly held, after great consideration, that a marriage in Ireland by a regularly-placed minister of the Presbyterian church, according to the rites of that church, at his dwelling-house, was void, so that a subsequent marriage entered into by one of the parties with a third person, both of the parties to the prior ceremony being still living, was not a case of bigamy.^ The priest must be a third person. It will not be sufficient that the priest is the bridegroom, and goes through the form of marrying himself to the woman. ^ The theory on which the case proceeds is that the priest is not simply present to perform the religious ceremony, but is there as well to be a witness to the contract, and that he may prevent the marriage from taking place in case any just impediment is brought to his knowledge.^ These judgments, made since the American Revolution, are not binding on our courts, though deserving of great respect from the high character of the judges, and the great research and ability displayed. If, however, Queen v. Millis is to be accepted as a correct view of the English common law, it can scarcely be claimed that it could ever have been adopted in this country. There were in the early settlement of the American States few priests of the kind referred to in this decision. After the Revo- 1 This was the result of the famous case in Queen v. Millis led to a statute (7 & 8 of Queen v. Millis, 10 CI. & F. 534; Vict. c. 81) legalizing such marriages. House of Lords, 1844. The judges, six in 2 Beamish v. Beamish, 9 H. L. Cases, number, were equally divided in opinion. 274. This resulted according to the rule in that ^ The decisions in Queen v. Millis and court in an affirmance of the decision of Beamish v. Beamish establish that the the lower court. This question could not early marriage law in England was essen- have been presented by a case arising in tially different from that which prevailed England, since the mode of constituting a at the same time in continental Europe, marriage was there regulated by statute. It is conceded on all hands that until the 26 Geo. II. c. 33, as moditied by 3 Geo. decree of the Council of Trent, A. D. ir>63, IV. c. 75, 4 Geo. IV. c. 17, and Id. c. 76. the general law of western Europe did not As that statute did not extend to Ireland, require a priest to attend. Even .since the question was one at common law. The that decree the priest attends as a wifMCfis result in Queen v. Millis was in opposition simplj', and the marriage will be valid, to the opinions of many of the earlier Eng- even though he dissent from it. The sub- lish judges, and particularly to the theory of stance of the decree is found in 9 H. L. the great case of Dalrymple v. Dalrymple, Cases, 317-320. 2 Hagg. Consist. Rep. 54. The decision 154 THE LAW OF PERSONS. liition, to hold with this decision would l)e to affirm that it was part of the common law of each American State that a marriage is void as to all civil rights, including legitimacy of children, unless there was present a priest of a foreign church established by foreign law, or one recognized by that church as a priest. Such a conclusion would lead to a practical absurdity. There is respectable authority in the British courts for hold- ing that the rule is not to be ap[)lied in the colonies where there are no priests. ^ It must be more clearly so under the relations existing between the American States and England. It would seem, therefore, that whether the theory of Lord Stowell be adopted,^ or that of the court in Queen i\ Millis, the result is the same in this country. This is that the presence of a min- ister is not by our common law necessary to the validity of a marriage. The main ingredient is consent. If this consent is given in words having an immediate effect (verba de prcesenti), the marriage is complete. If the future tense be employed, the contract is an engagement to marry, and nothing more, even though it be followed by cohabitation. ^ {a) Indirect evidence and presumptions. — By indirect evidence is meant the case where facts and circumstances are shown, such as usually attend the state of marriage, and which, by a process of reasoning, might lead the mind to the conclusion that a mar- riage had taken place. This evidence may be resorted to even 1 Maclean v. Cristall, Perry's Oriental Davis v. Davis, 7 Daly, 308 ; Hynes v. Cases, 75. See dicta, Beamish v. Beamish, McDermott, 7 Abb. N. C. 98. supra. In Massachusetts the canon law was 2 Dalrymple v. Dalrymple, 2 Hagg. never adopted, and it was never received Consist. Rep. 54. as common law that parties could marry 3 The cases maintaining this point are without an officiating minister or magis- now very numerous. See Hayes v. People, trate. The acts of the legislature sustain 25 N. Y. 390 ; Van Tuyl v. Van Tuyl, 8 this rule, except in the case of Friends or Abb. Pr. N s. 5 ; Wriglit i\ Wright, 48 Quakers. Commonwealth v. Munson, 127 How. Pr. 1 ; Bissell v. Bissell, 55 Barb. Mass. 459. 325 ; Guardians of the Poor v. Nathans, 2 The case of Denison v. Denison, 35 Md. Brews. (Pa.) 149; People v. Taylor, 1 361, adopts the view taken in Queen v. Mich. (N. P.) 198 ; Richard v. Rrehm, Millis, and exacts solemnization by a 73 Pa. St. 140 ; Dickerson v. Brown, priest. See also Dyer v. Brannock, 2 Mo. 49 Miss. 357 ; Hutchins v. Kimmell, 31 App. 432, 444-449. Mich. 126 ; Floyd v. Calvert, 53 Miss. 37 ; {a) See also, as upholding the general 425 ; Peck v. Peck, Id. 479. Common- rule, Gall V. Gall, 114 N. Y. 109 ; State law marriages are valid under statutes V. Cooper, 103 Mo. 266 ; Mathewson v. regulating the marriage ceremony, unless Phcenix Iron Foundry, 20 Fed. R. 281, such statutes expressly declare them void, and cases cited ; Matter of Hamilton, 2 State v. Bittick, 103 Mo. 183. But the Connolly, 471 ; The State v. Walker, 36 ojiposite view is taken in Beverlin v. Kan. 297; Teter v. Teter, 101 Ind. 129 ; Beverlin, 29 W. Va. 732. contra, Norcross v. Norcross, 155 Mass. HUSBAND AND WIFE. 155 in States where a ceremonial marriage is required, since it leads to the conclusion that such a marriage has taken place. One attacking the marriage will, however, be allowed to show that there was no marriage, and so rebut the presumption. The presumption in favor of marriage when parties live together as husband and wife is very strong, and this presump- tion must be met by strong, distinct, and satisfactory dis- proof. (r<) This is particularly true after the lapse of a great length of time.i The language of Lord Campbell is "that a presumption of this sort in favor of marriage can only be nega- tived by disproving every reasonable possibility."'^ Some of the circumstances which tend to raise a presumption of marriage are these : — First, cohabitation, or the act of living together as husband and wife. Such cohabitation i-aises the presumption of marriage. A court will not suppose the relation of the parties to be illicit, but, in the absence of evidence to the contrary, will assume it to belawfuL3(6) This principle is subject to this qualification: that if the cohabitation be in its origin illicit or meretricious, it will be presumed to continue to be so,^ unless there is evidence that this relation ceased, and a new and lawful relation commenced by mutual consent, (e) A subsequent cohabita- tion after such a change of intent might raise a presumption of a marriage.^ Under this rule, if parties enter into a void contract of mar- riage, and the impediment to marriage is removed, a marriage may be presumed from subsequent cohabitation, etc.^ It has been decided, however, that this principle cannot be applied to uphold a marriage, where one of the parties had committed bigamy, though the other was innocent, as a new marriage could not be presumed after the bigamous relation ceased, since the innocent party would have no motive to remarry. This seems to be a highly technical doctrine, since the whole subject of 1 Piers V. Piers, 2 H. L. Cases, 331. case is but slight. Canjolle v. Ferrie, 23 2 Id. p. 380. N. Y. 90. 3 Ferrie v. Pub. Adm., 3 Bradf. 151 ; ^ Lapsley v. Grierson, 1 H. L. Cases, s. c. 4 Bradf. 28 ; Caujolle v. Ferrie, 23 498 ; Hill v. Hibbit, 19 W. R. 250. j;]-_ Y. 90. ® Rose?;. Clark, 8 Paige, 574. See also 4 Cunninghams v. Cunninghams, 2 a learned note in 18 Am. Law Reg. 639. Dows Rep. 482. The presumption in this (rt) Hynes v. McDermott, 91 N. Y. 451. (c) Harbeck v. Harbeck, 102 N. Y. 714; (h) State V. Schweitzer, 57 Conn. 532 ; Vincent v. Vincent, 16 Daly, 534. see also Degnan v. Deguan, 43 N. Y. St. Rep. 646. 156 THE LAW OF PERSONS. presumptions is a fiction in favor of marriage, and a presumed public policy. The decision has also the bad effect of leaving an innocent woman in a worse position than she would have been in, had she known of the bigamy ; for in that case, when the former wife died, there would be a motive to marry, and a marriage might be presumed. ^ Second, general reputation raises a presumption of marriage. ^ If the repute be divided, it may be established by preponderating repute.^ In Scotland, "habit and repute" are proof that the parties have interchanged that consent which constitutes the contract.* Third, declarations of the parties to the marriage. These may be admitted as evidence to prove, and in some instances to disprove, a marriage. This kind of evidence would not be sufficient to establish a marriage in a trial for polygamy. A general statement may now be made that marriage may for most purposes be proved by evidence of acts of recognition, matrimonial cohabitation, general reputation, and declarations of the parties.^ The rule applies in favor of one who sues for injury causing a husband's death.^ The repute, etc., should be shown to exist in the domicile of the parties.'^ Cohabitation and reputation should go together. One alone will not suffice.^ Fourth, in special cases, when there is no better evidence, hearsay, such as recognition of the marriage, has been admitted as evidence.^ (rt) Under the present law of New York, an alleged wife may testify to recognition on the husband's part, introduc- tion to his relatives, etc.^*^ When a presumption of marriage is once raised, it will not be rebutted by the fact that there was a subsequent actual marriage of the parties, even though the subsequent marriage should be in the wife's maiden name.^^ It is a rule that reputation proper to be shown in the case cannot go beyond the range of knowledge of the cohabitation. 1^ 1 O'Gara v. Eisenlolir, 38 N. Y. 296. ^ Lehigh R. R. Co. i;. Hall, 61 Pa. St. 2 Doe V. Fieming, 4 Bing. 266. 361. 3 Lyle 1'. Ellwood, L. R. 19 Eq. 98. '' Com. v. Omohundro's Adni., 2 Brews. But see Barnnm v. Barnnm, 42 Md. 251. (Pa.) 298. * Campbell v. Campbell, L. R. H. L. 8 Cargile v. Wood, 63 Mo. 501. 1, Se. App. 182. 9 Chamberlain v. Chamberlain, 71 N. s The cases on this point are very nu- Y. 423. merous, and it is scarcely necessary to cite ^'^ People v. Bartholf, 24 Hun, 272. them. 11 Betsinger v. Chapman, 88 N. Y. 487. 1" Badger v. Badger, Id. 546. (a) Eisenlord v. Clum, 126 N. Y. 552. HUSBAND AND WIFE, 157 It cannot be shown by general reputation that marriage did not exist, ^ though when reputation of a marriage is asserted, it may be shown in answer that there is a divided reputation, and that among some friends it was reputed that tlie connection was illicit instead of matrimoniaL^ The principle on which recog- nition rests requires that it should be open, public, and con- tinuous. The policy of the law is opposed to a secret marriage. It is difficult to establish it without clear evidence.^ The ques- tion whether direct evidence of marriage must be given in an action for divorce was recently discussed in the New York Court of Appeals, but not decided.^ In various States there are statutes prescribing the registration of marriages in some public office. In that case there is authority for holding that an official certificate from the regis- ter's office will be evidence of the marriage. It is in general ordained in the statute itself that it may be used in evidence. It will not, however, be the only means of establishing the marriage. The testimony of witnesses may be resorted to, or evidence of cohabitation and repute as before. Rules for determining the validity of foreign marriages. — By the phrase " foreign marriages " is here meant such as are made in one iurisdiction, while their validity is questioned in another. This may happen under differing systems of law in the same country, as where a Scotch marriage is assailed in an English court. ^ This matter involves the doctrine of "conflict of laws," or "international private law," as it is sometimes called. It can only be considered incidentally here. Two prin- cipal questions arise: one is, the validity of the marriage where the forms and ceremonies differ from those of the place where the parties are domiciled, or where the trial is had; the other, where conflicting rules of public policy prevail in the two juris- dictions, as to the propriety of the marriage itself. As to the first question, the general rule is that the validity of marriages as to form is governed by the law of the place where the contract is entered into. If valid there, it is valid every- where. If void there, it is in like manner void everywhere. An illustration is the requirement of the presence of a priest. This is a branch of a so-called "comity " or courtesy of nations, which recognizes the validity of acts done in other nations or jurisdictions. Lord Stowell has well stated the rule in a cele- 1 Bartlett v. Mi;slinar, 28 Hun, 235. ^ Scotch " common law " is mainly de- 2 Badger v. Badger, supra. rived fi-om the Roman law, and widely 3 Cunningham v. Burdell, 4 Bradf. 343. differs in most respects from the common * Collins V. Collins, 80 N. Y. 1, 10. law of England. 15S THE LAW OF PERSONS. Lratcd casc,^ which arose in Scotland. He said, this case "being entertained in an English court, it must be adjudicated accord- ino- to the princiiilcs of English law applicable to such a case. But the only principle applicable to such a case by the law of England is that the validity of Miss G-ordon's " (the alleged wife's) "marriage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judg- ment of the law of Scotland. " ^ This doctrine of comity has been carried so far as to uphold in the courts of the State where the parties reside, marriages contracted elsewhere, in evasion of the law of the domicile as to matters of iorm.^ (a) These have been called, in England, " Gretna Green " marriages, from the fact that English people, being desirous to evade certain burdensome marriage ceremonies of the English law, crossed the border to Gretna Green or other place in Scotland, and after a marriage without ceremonies, valid there, returned to England.* A statute in the country of the domicile may make such a marriage void there, though it may still be valid in the place where it w^as contracted.^ As to the second class of cases, a different rule prevails. A nation or State is not bound to sacrifice its views of public policy to a spirit of courtesy towards other States or nations. This is particularly true where there is a statute in the country of the domicile prohibiting the marriage. In such a case the mar- riage may be valid in the State where contracted, and yet void in the domicile. An instance is the rule in England already referred to, that an Englishman shall not marry a deceased wife's sister, nor a member of the royal family without the con- sent of the reigning monarch. A penal disability stands upon a different footing. That is supposed to be territorial simply in its effect, unless the words of the statute indicate that it is 1 Dalrymple v. Dalrymple, 2 Hagg. was married in this manner; but afterwards Consist. K. 54. went through a ceremonial marriage at 2 Id., pp. 58, 59. Newcastle, England. 2 Compton V. Bearcroft, 2 Hagg. Con- ^ Oretna Green marriages are now prac- si.st. R. 444 n. ; Scrinishire v. Scrimshire, tically abolished, as a residence of one of Id. 395, 412, 413 ; Medway v. Needham, the parties in Scotland of twenty-one days 16 Mass. 157. is now necessary. 19 & 20 Vict. c. 90. ^ Lord Chancellor Eldon, when young, (a) Gardner v. Attorney-General, 60 L. is valid in Japan, is valid in England. T. R. 839. A marriage celebrated in Brinkley v. Attorney-General, L. R. 15 Jiipan, according to its laws, between a P. D. 76. See also Smith u. Smith, 62 British subject with an Irish domicile N. J. Law, 207. of origin, and a Japanese woman, which HUSBAND AND WIFE. 159 to have a more extended operation. An instance is a statutory prohibition that one divorced for adultery shall not marry again during the life of the other party. A marriage in another State where there is no such rule will be valid in the State prohibiting it, unless there are words in the statute including a marriage abroad. ^(t?) Independent of prohibitory statutes, a court in a civilized country will not recognize a polygamous marriage. This is so repugnant to the general sentiment of mankind that it could not be tolerated that a court of justice should enforce claims of right founded upon it. In England, it has been placed on the ground that it is not a Christian marriage, and that an English divorce court will not enforce matrimonial obligations growing out of marriages that are not in their nature Christian. ^ DIVISION 11. — Annulment^ Dissolution, and Judicial Separation. A proceeding for these purposes is termed a divorce. A divorce may be either total or partial. When total, it may be either an annulment or a dissolution. When partial, it is called divorce a mensa et thoro (from bed and board). These will now be considered in their order. Section I. Annulment. — There is an important distinction in total divorce between a case of annulment and one of dissolu- tion. An annulment is for a cause existing at the time of the marriage, making it voidable. The effect of it in general is to adjudge that there not only is not now, but that there never has been, a marriage. Accordingly, the children are illegitimate. The wife has no claim even to alimony from her supposed hus- band's estate for her support. The English divorce court main- tains under the statutes that in a suit for nullity, alimony pende7ite lite may be continued until the decree for divorce is made absolute.^ The reason is, that there is no divorce until that time. Lapse of time is no bar by the ecclesiastical law to a suit of this kind, on the ground that the function of the court is simply to pass a declaratory sentence that the marriage is null and void.* 1 Thorp V. Thorp, 90 N. Y. 602; Van 3 g,^ falsely called B. v. B., L. R. 9 Voorhis v. Brintnall, 86 N. Y. 18. P. D. 80. 2 Hyde v. Hyde, L. K. 1 P. & D. 4 Duins v. Donovan, 3 Hagg. Ecc. 301, 130. 305 ; Johnston v. Parker, 3 Phill. 39. (a) See also Moore v. Hegeman, 92 N. Y. 521 ; Wilson v. Holt, 83 Ala. 528 ; contra. Pennegar v. State, 87 Tenn. 244. IQQ THE LAW OF PERSONS. The priiicii)lcs governing; a divorce for nullity have been applied to a case where A., being engaged to be married to a ladv, had induced her to accept bills of exchange which he neolccted to pay, and when the holders threatened to make her a bankrupt, represented that the only way to avoid the pro- ceedings, as well as exposure, was to marry him; accompanying his representations with some threats leading to the conclusion that she did not act with freedom in marrying him. Under the circumstances, the marriage was declared to be null and void. ^ The court seems to have gone upon the view that undue influ- ence and moral restraint, operating upon the Avill of the lady, were sufficient to avoid the marriage upon her application. A special case not governed by general principles of law is sometimes presented where a statute provides that a marriage shall only be void from the time that it is so declared by a court of competent jurisdiction. ^ In this case, the woman would have been wife from the time of the marriage until the time of annul- ment, and the children in existence prior to that time would be legitimate.^ In an action or suit for annulment, counsel fees may be allowed by the court to enable a wife to prosecute or defend it, but not alimony pendente lite. The last is only allowable when the existence of the marriage is satisfactorily established.* (a) The ecclesiastical court may make a decree of " confrontation " in an action for nullity of marriage ; ^ but cannot make such a decree in cases of dissolution.^ Section II. Dissolution. — A marriage may be dissolved by the death of one of the parties, by legislative act, judicial decree, 1 Scott ».'. Sebright, L. R. 12 P. D. 21. Code of Civil Procedure, § 1745, whereby 2 In New York, 2 K. S. 139, § 6, this the children of an innocent party to a doctrine is ap])lied to a case of a second bigamous marriage are declared to be the mariiage where the first husband or wife legitimate children of that parent, who is had absented himself or herself for five entitled to their custody and to appoint a successive years without being known to guardian of their persons by will. the other party to be living. It would * Collins v. Collins, 80 N. Y. 1. The not be legal adultery in such a case for the English rule is different. S., falsely called parties to the second marriage to cohabit B. v. B., L. Pi. 9 P. D. 80. after knowledge was obtained that the first ^ Entieknap v. Rice, 4 Sw. & T. 136. party was living, until a judgment of an- ^ Hooke v. Hooke, Id. 236. A decree nulment was declared. Valleau v. Val- of confrontation means an order directing lean, 6 Paige, 20. a party to come before witnesses for the ^ There is an important qualification to purpose of identification, the subject of legitimacy in the New York (n) Meo V. Meo, 15 N. Y. Civ. Pro. R. N. Y. Civ. Pro. R. 321 ; O'Dea v. O'Dea, 308. But alimony has been allowed the 31 Hun, 441 ; Isaacsohn v. Isaacsohn, 3 wife in an action brought by the husband Month. Law Bui. 73. to annul the marriage. Lee v. Lee, 4 HUSBAND AND WIFE. 161 and, in some States, by a sentence to imprisonment for life for crime. Divorce by legislative act was at one time in England the only mode of dissolving a marriage. This method has now disappeared there, a regular court of divorce having been estab- lished. The power of a State legislature to grant divorces of this kind exists in this country, except where it has been with- drawn by constitutional provision, as it has been in New York.^ A sentence to imprisonment for life is a divorce in New York and California. A subsequent pardon will not re-establish the marriage relation. ^ The only case which it will be necessary to consider at any length is divorce by judicial decree. The whole subject of judicial divorce for a cause arising after the marriage was in England, until 1857, vested in the eccle- siastical courts, subject to review by the king in Privy Council. At present there is a court of Divorce and Matrimonial Causes.^ The law upon this subject is to be found in the reports of eccle- siastical courts, and those of the Judicial Committee of the Privy Council.^ There being no ecclesiastical court in this country, its jurisdiction, if it exist, must be vested by statute in some other court. This is usually the Court of Chancery. The ecclesiastical law is, however, as far as recognized in those courts, a branch of the common law of England. It is not an absolute equivalent to the "canon law." It differs from the canon law in several important respects. It is frequently called by English lawyers and judges the "king's ecclesiastical law. " ^ It has been held in New York that while the English ecclesiastical law is no part of the common law of the State, ^ yet when, by the statutes, any part of the jurisdiction exercised by those courts is given to the State court, the settled principles and practice there become a precedent and guide here, so that the grant of jurisdiction carries with it by implication the powers indispensable to its proper exercise.'' (a) 1 Const, of New York, Art. I. § 10. ^ See remarks of the Lord Chancellor 2 2R. S. 139, §§5,7. " Civil death," and of Lord Cottenham, in Queen v. with its consequences, is considered in the Millis, 10 CI. F. 534. case of Avery v. Everett, 110 N. Y. 317. ^ Burtis v. Biirtis, Hopkins, 557. 3 See 20 & 21 Vict. c. 85. ' Brinkley v. Brinkley, 50 N. Y. 184 ; * At one time the Appellate Court was Griffin v. Griffin, 47 N. Y. 134, 137. It a large and unwieldy body, called the is further decided that the courts of New " Court of Delegates." This has been so York have no common-law jurisdiction long superseded that it is unnecessary to over the subject of divorce, and that their do more than refer to it. It is described authority is confined altogether to the ill 3 Blackstone's Commentaries, 66. Its exercise of such express and incidental jurisdiction was withdrawn by 2 & 3 Wm. powers as are conferred by statute. Erken- iV. c. 92, and by 3 & 4 Id. c. 41. brach v. Erkenbrach, 96 N. Y. 456. (a) Chamberlain v. Chamberlain, 63 Hun, 96 ; Dickenson v. Dickenson, Id. 516. 11 IQ2 THE LAW OF PERSONS. The subject may be considered under the following heads : — I. The parties to the action. II. Methods of procedure, including alimony pendente lite, counsel fees, and expenses. III. Defences : (1) denial ; (2) recrimination ; (3) condonation ; (4) procurement; (5) connivance; (6) collusion; (7) delay in prosecution, including statute of limitations. lY. Effect of the divorce: (1) support of wife; (2) legiti- macy and (3) custody of children ; (4) property rights ; (5) penal disabilities. y. Foreign divorces. I. The parties to the action. — One may have a good cause of action for a divorce, and yet not be able to present it to the court. He may, for example, be a non-resident, or the party from whom the divorce is sought may be a non-resident. These points are now in most instances regulated by statute in the respective States. In New York there is no action for dissolution except for adultery. 1 A question may be presented, whether if one of the parties becomes a lunatic after the offence is committed, the case can go forward. It was first held in the English court of divorce that if the defendant has become insane, an action for adultery cannot be prosecuted. The court thought that such an action was in the nature of a criminal proceeding, quasi in pcenam. The party may be deprived of status by reason of it. Divorce, it was said, was not a strict right like remedies for breaches of ordinary contracts, but rather ex gratia, depending largely on notions of public policy. ^ This case was distinguished from an action for a partial divorce, as there is no change of status (the parties still remaining married). Such a divorce, it is agreed, may go forward notwithstanding the insanity of the defendant.^ On an appeal to the House of Lords, this decision was reversed, on the ground that adultery, though a grievous sin, is not a crime at common law, and that the analogies and precedents of 1 See Code of Civil Procedure, § 1756. jured party within the State when the This section makes the jurisdiction of the action was commenced, court turn upon any one of four points : 2 Mordaunt v. Mordaunt, L. K. 2 P. & (!) residence of both parties in the State D. 109; Bawdon v. Bawdon, 2 Sw. & T. where the offence was committed ; (2) mar- 417. riage within the State ; (3) residence of ^ Parnell v. ParneH, 2 Hagg. Consist. plaintiff within the State where the offence R. 169. But see on the general subject, was committed a7id when action was com- Mansfield v. Mansfield, 13 Mass. 412 ; menced ; (4) commission of the offence Broadstreet v. Broadstreet, 7 Mass. 474 ; within the State, and residence of the in- Wray v. Wray, 19 Ala. 522. HUSBAND AND WIFE. 163 criminal law have no authority in a divorce court. ^ (a) The court carefully abstained from expressing an opinion as to an action brought in behalf of a lunatic. ^ The lunatic defendant in this case was represented by a guardian ad litem. If a plaintiff dies in the course of an action for a divorce, it cannot be continued. Nor can a suit be brought after the death of one of the parties without a statute to that effect. It has recently been said, "that a man can no more be divorced after his death than he can after his death be married or sentenced to death. " ^ There are in some American States statutes allow- ing a divorce in some instances after the death of one of the parties.^ The jurisdiction of a court over an absent defendant will be considered under the head of "foreign divorces." 11. Methods of procedure, ineludiyig alimony pendente lite, counsel fees, and expenses. — Some preliminary remarks should be made upon the subject of stating the plaintiff's case. There are two opposite dangers against which the court must guard in a divorce case. One is, that both parties may desire the divorce, and may resort by mutual consent to collusive methods to procure it. Such conduct would be a fraud upon the court, and, if ascertained, a decree obtained by collusion would be set aside. ^ The other danger is that in a contested suit cor- rupt testimony may be offered by one party against the other, who may not be able, owing to surprise, to defend himself. It is to meet this latter danger that some special rules prevail as to the statement of the case in the pleadings. The general rule is that the plaintiff should specify the place and time, where and when, and the person with whom, the offence was committed. This strictness may be dispensed with when the plaintiff is 1 Mordaunt ■y. Moncreiffe, L. R. 2 Sc. tain cases of nullity, — c. jr., idiocy, lunacy, & Div. App. Cas. 374. force, or fraud. ^ It is now settled that a committee of ^ In England, an officer called a queen's a lunatic may petition for a divorce on Proctor may intervene and allep;e collusion, his behalf on the ground of adultery. Barnes v. Barnes, L. R. 1 P. & D. 505 ; Baker v. Baker, L. R. 5 P. D. 142. 23 & 24 Vict. c. 144, § 7 (b). He may 3 Per BowEN, L. J., in Stanhope v. also intervene to show cause why an inter- Stanhope, L. R. IIP. D. 103, 108. mediate decree should not be made final, * See §§ 1746-1750 of the New York and may adduce fresh evidence for that Code of Civil Procedure, as applied to cer- purpose. Crawford v. Crawford, L. R. 11 P. T). 150. (rt) Insanity as a defence to an action but liy c. 81 of 25 & 26 Vict. § 8 of the for a divorce was considered in Hanbury former Act was rejiealed, and the opera- V. Hanbury, 61 L. J. P. 115 ; Yarrow v. tion of the Act was made perpetual. By Yarrow, Id. 69. 36 & 37 Vict. c. 31, § 1, the operation of (&) By § 8 of this statute it was pro- 23 & 24 Vict. c. 144, § 7, was extended so vided that the Act should continue in as to include actions for nullity as well as force until July 31, 1862, and no longer ; for divorce. 2G4 THE LAW OF PEESONS. unable to malce his. allegations with particularity. In this case he should state his inability to be specific, and then state the facts as particularly as his means of knowledge will permit. i Questions as to the evidence necessary to obtain divorce are peculiar in their nature. Letters or admissions of the defend- ant, made at the time of the offence charged, may be of great weight, as characterizing the acquaintance with an alleged paramour. Contemporaneous letters or entries in a diary show- ing guilty familiarity may be sufficient. ^ It was a rule in the English ecclesiastical court not to grant a divorce on the mere admissions of the alleged guilty party. This rule is not binding upon the existing divorce court, though evidence of this kind should be received with great circumspection. ^ Still a confes- sion may be received in evidence. The subjects of alimony pendente lite, counsel fees, and expenses may be considered separately. Alimony pendente lite is a crea- ture of the ecclesiastical courts in England. The power of the courts there is now vested in the court of Divorce and Matrimo- nial Causes.'* (a). It is a reasonable construction, as has been seen, that when the power of divorce is vested in a court, the general principles of the ecclesiastical law follow, and attach themselves to the new jurisdiction.^ Questions concerning ali- mony arise both in cases of divorce from the bonds of matri- mony (a vinculo), and in cases of judicial separation (a mensa et thoro). It will be convenient to consider the subject as applicable to both at the same time. The following are the rules of law governing this subject : — Rule 1. — The true mode of ascertaining the principles gov- erning alimony is to examine the rules prevailing in the eccle- siastical courts of England. We cannot inquire whether these are antiquated or inelastic. The precedents must be followed as they exist. Whether they should be expanded or not is a question for the legislature. 1 Mitchell V. Mitchell, 61 N. Y. 398, as the wife was a woman of strong passions and cases cited (p. 403), illustrating the and flighty disposition, it would not, under general rule. the special circumstances, draw the usual 2 Loveden v. Loveden, 2 Hagg. Consist, inferences of adultery from the statement K- 1- in her diary of exchanged kisses and other 3 Williams v. Williams, L. R. 1 P. & endearments. D. 29 ; Robinson v. Robinson, 1 Sw. & T. * 20 & 21 Vict. c. 85. 362, 393. In this case the confessions & Brinkley v. Brinkley, 50 N. Y. 184, were in a diary ; and the court held that 190 ; Griffin v. Griffin, 47 N. Y. 134. (a) This court was superseded by the created by the Judicature Act of 1873, 36 Probate Divorce and Admiralty Division & 37 A^ict. c. 66. of the High Court of Justice, which was HUSBAND AND WIFE. 165 Rule 2. — Alimony pendente lite is allowed upon the general ground that otherwise during the action the wife would have no adequate means of support. Her common-law remedy (hereafter considered) to incur bills with tradesmen on the husband's credit, is hampered if not suspended. If away from home when the action is brought, she cannot properly return ; if at home, cohabitation is suspended. She needs immediate funds, and if circumstances warrant, access to a court to increase her allow- ance. Adequate support and efficiency in supplying it are the guiding principles, (a) Rule 3. — It follows that if the wife has sufficient means from other sources, whether from her own estate or not, she has no standing in court to make the application for alimony j^en- dente lite. Rule 4. — The allowance made is not so large as permanent alimony. 1 The principle is to give the wife enough to live in decent retirement. Her reputation being under a cloud, she should not seek publicity. Rule 5. — The judge is said to have a discretion in awarding alimony. This means a discretion governed by rules and prece- dents, and if the judge does not follow them, the decision may be reviewed on appeal. ^ Rule 6. — Still, the court is not to proceed in a niggardly and parsimonious manner. She should have sufficient to enable her to live with decency and dignity. She is still ivife^ and ought to be treated accordingly until, by the judgment of the court, she is decreed to be an outcast from the family. Rule 7. — There is a distinction between the wife as plaintiff and as defendant in respect to this allowance. If the wife be defendant, she must defend herself against the charges in the bill or complaint, or must disclose the nature of her defence before she will be awarded alimony.^ (/:>) 1 Lawreuce v. Lawrence, 3 Paige, 267. ^ Lewis v. Lewis, 3 Johns. Cb. 519 ; 2 Leslie v. Leslie, 6 Abb. Pr. N. s. Osgood v. Osgood, 2 Paige, 621 ; Williams 193. V. Williams, 3 Barb. Ch. 628. (a) Alimony may be awarded after a not be made to defray expenses already decree of divorce pending the determi- incurred. McCarthy v. McCarthy, 137 nation of an appeal from the decree. N. V. 500. McBride v. McBride, 119 N. Y. 519. But (h) Pettee v. Pettee, 45 N, Y. St. R. see Kamp v. Kamp, 59 N. Y. 212 ; Win- 549. In an action of divorce brought by ton V. Wiuton, 31 Hun, 290. the wife where all the charges of adultery Under § 1769, of the N. Y. Code of are made on information and belief, and Civil Procedure, authorizing the court to are positively denied by the defendant, award such sums as alimony as may be alinrony will not be granted. Moriarty necessary to enable the wife to carry on v. Moriarty, 32 N. Y. St. R. 115. or defend the action, an allowance may 1(3(5 THE LAW OF PEKSONS. Rule 8. If the requisite case is made out, tlie allowance will be made, even though the husband be a poor man.^ And if the circumstances require it, the payment may be ordered to be made from daily earnings. ^ j^iile 9. — The amount of the allowance in England is fre- (jucntly one-fifth of the income, though when the husband is alllucnt, no more will be allowed than is sufficient for the wife's liSCS.^ It is common in these cases to make an allowance to the wife for counsel fees and expenses of the litigation. This allowance proceeds upon different principles from that of alimony pendente lite. The amount of " suit money " must depend to some extent upon the breadth and severity of the litigation. It is laid down by some Avriters that the wife should receive money enough from the husband's estate to be placed upon an equality with him as to the means of prosecuting her case.* While this rule is abstractly just, there may be serious doubt whether its tendency would not be to promote useless litigation. The wisest course would seem to be to leave each case to the dis- cretion of the court, depending upon its special circumstances and the result of the judicial precedents. It is a rule not to make this allowance where the wife has sufiicient means of defence from other sources. This is not a mere matter of discretion, but a rule of law.^ Authorities showing the amount of allowance usual in such cases may be found in the note.^ Counsel fees may be allowed at various stages in the progress of the action or at its conclusion. On a second application the court w^ould require evidence that the amount of the first allowance had been applied to the purpose for which it was made. 1 Purcell V. rurcell, 3 Edw. Ch. husband was a man of large means and had 194. an abundant income. There may be spe- ■^ Kirby v. Kirby, 1 Paige, 261. cial reasons for making the amount larger 3 Accordingly, where the husband's in- than usual, as where the wife's health was come was equivalent to $40,000 ^'eramiwHi, endangered, and provision was made by the court stopped with $5,000 per a?m«?n. the court for enabling her to travel Edwards v. Edwards, 17 L. T. N. s. 584. with a view to recuperation. Lynde v. The specific rate of twenty per cent does Lynde, 4 Sandf. Ch. 373 ; s. c. 2 Barb, not seem to prevail in this country. The Ch. 72. allowance in one New Yoi-k case was * Bishop on Marriage, Divorce, and S^^.OOO per annum. Forrest v. Forrest, 5 Separation, vol. II. § 976. B')sw. 672, 676, 677. In another case ^ Collins i;. Collins, 80 N. Y. 1; Beadle- w50 per week was allowed. Leslie v. Les- ston v. Beadleston, 103 N. Y. 402. lie, 6 Abb. Pr. N. s. 193. Again, there ^ Forrest v. Forrest, 5 Bosw. 672 ; was an allowance of $35 per week, which, North v. North, 1 Barb. Ch. 241 ; Griffin under the circumstances, was not deemed v. Griffin, 47 N. Y. 134 ; New York Code excessive. De Llamosas v. De Llnmosas, of Civ. Pro. § 1769. 62 N. Y, 618. lu each of these cases the HUSBAND AND WIFE. 167 III. Defences. — These may be grouped into two general classes. First, those which deny the charge altogether ; second, those which by implication admit it, and at the same time deny that the plaintiff is entitled to any relief by reason of his conduct. Such defences are misconduct on the plaintiff's part, condonation, procurement, collusion or connivance, and lack of diligence in prosecution. (1) Denial. — If the charge be denied, an issue of fact is pre- sented to be tried by a judge alone or by a judge and jury, as the local practice may require.^ The local books of practice should be examined for the details of the subject. Under this issue merely, if the plaintiff proves his charges, the divorce is obtained ; if not, the case is dismissed. (2) Recrimination. — This defence consists of a countercharge by the defendant against the plaintiff, and is in the nature of a cross action, (a) The recriminatory charge should be set forth with the same particularity as if it were an original cause of action.^ The defendant may make use of a recriminatory charge by supple- mental answer, even though the act was committed after the action was commenced. ^ (5) Should the defendant prove his case and the plaintiff fail, the defendant will have a divorce from the plain- tiff. Should each party establish his case, no divorce will be granted.* (3) Condonation. — This is a technical expression meaning con- ditional forgiveness. The condition is, that the offence is not to be repeated. Should it be, the condoned offence is revived, even though the new offence be committed beyond the jurisdiction of the court.^ It has been questioned whether a subsequent act of 1 In New York it is tried by a jury, The husband by violence had driven her unless the parties consent to a reference into a life of shame. Coleman v. Coleman, or a trial by the judge alone. Code Civ. L. R. 1 P. & D. 81. It should be ob- Pro. §§ 1012, 1757. A referee may be served, however, that there is a certain appointed to hear and determine the whole discretion given to the divorce court by 20 issue. It is not, however, enough that «& 21 Vict. c. 85, § 31. This is a regu- the parties select the referee; his appoint- lated discretion, and not a free option, ment must be sanctioned by the court. Morgan v. Morgan, L. R. 1 P. & D. 644. 2 Morrell v. Morrell, 3 Barb. 236. The cases are very few in which the court 3 Smith V. Smith, 4 Paige, 432. would visit with the penalty of divorce a 4 In a recent English case of very ag- guilty wife whose husband is also guilty of gravated misconduct on the part of the adultery. Barnes v. Barnes, L. R. 1 P. & husband, a divorce was granted to the D. 572 wife under the rules now prevailing there, ^ Per Watavouth, Chancellor, in John- though she had been guilty of adultery, son i'. Johnson, 4 Paige, 460, 471. (a) N. Y. Code of Civ. Pro. § 1770 ; elty was refused a divorce sought on the Bleck u. Bleck, 27 Hun, 296; Van Ben- groundof adultery, though the adultery was thuysen v. Van Benthuysen, 15 Civ. Pro. established. Pease v. Pease, 72 Wis. 136. R. 234. Under a statute making cruelty as See also Handy v. Handy, 124 I\Iass. 394 ; well as adultery a ground for a divorce, a Tillison v. Tillison, 63 Vt. 411. husband proved to have been guilty of cru- {b) Blanc v. Blanc, 67 Hun, 384. 163 THi: LAW OF PEliSONS. cruelty would revive a condoned cause of action for adultery. It was held in the English ecclesiastical courts that it would. How- ever, it is to be noted, that in those courts, both adultery and cruelty were only grounds for a partial divorce, and so, legally speaking, the two causes of action were of the same grade. But in a State where adultery is a ground for dissolution, and cruelty only for a separation, it has been thought that the English rule should not be followed.^ Still, the soundness of this theory is doubtful, since " condonation " is a word wholly derived from the ecclesiastical courts, and its meaning there certainly is forgiveness upon condition that there shall neither be adultery nor cruelty .^ (a) It has also been said, that a condoned act of adultery may be revived by subsequent improprieties short of, but tending to, adultery .^ To constitute a condonation, there must be full knowledge of the facts. A condoning husband must thoroughly believe in his wife's adultery .4 Again, the acts of forgiveness must be followed up by full re-instatement of the offender to his or her former position.^ Mere words of forgiveness, however strong, amount only to " imperfect " condonation.^ Condonation once proved is a blotting out of the offence imputed so as to restore the offeuding party to the same position as before.''' Accordingly, it has been held in some cases that if the other party should subsequently commit the offence, the party condoned could have a divorce.^ It would scarcely be just to establish such a rule in a positive form. A wife who had forgiven her husband in a known act of adultery might, by his example, be more easily led astray. The English rule seems more consonant with reason. This is to consider all the circumstances in determining whether the condonee shall be allowed to maintain the action.^ Regularly speaking, condonation should be set up in the plead- ings. The English court has held that if proved at the hearing it will be noticed by the court though not specially pleadcd.^^ In a recent English case it is said that condonation by a husband of a 1 Johnson v. Johnson, 4 Paige, 460, ^ Keats v. Keats, 1 Sw. & T. 334. s. c. 14 Wend. 637 ; Burr v. Burr, 10 ^ Peacock v. Peacock, Id. 183. Paige, 20. "^ Keats v. Keats, supra, p. 356. 2" Dent V. Dent, 4 Sw. & T. 105. ^ Morrell v. Morrell, 1 Barb. 318. » Winscom v. Winscom, 3 Sw. & T. ^ story v. Story, L. R. 12 P. D. 196. 380. See also Rose v. Rose, L. R. 8 P. D. 98. * Ellis V. Ellis, 4 Sw. & T. 154, 157. i" Curtis v. Curtis, 4 Sw. & T. 234. (a) See Moore v. Moore [1892], P. 382. She then resumed cohabitation with the In this case the wife had obtained a decree respondent, her former husband, but he nisi in a suit for divorce, and believing that being guilty of cruelty, she petitioned to the marriage was dissolved, went through make the decree absolute, which was the form of marriage with another man, granted by the court. See also Timerson with whom she cohabited until his death, v. Timerson, 2 How. Pr. N. s. 526. HUSBAND AND WIFE. 1G9 wife's adultciy is a fact of cveiy-day occurrence, as the records of tiie divorce court abundantly show.^ Condonation may be proved either by express words of forgiveness or it may be inferred from acts. Cohabitation may lead to the inference of condonation, but the inference may be repelled by other circumstances.^ (a) The inference is more readily made against a husband than against a wife, since the latter is more often in a state of dependence and without perfect freedom to act.^ (b) These elements should always be present in every case of con- donation : Full knowledge of the facts, belief in guilt, pardon, and re-instatement of the party forgiven, in his former position. Con- donation by a husband is no bar to a claim for damages by him against an adulterer."* (4) Procurement. — There is a general resemblance between procurement, connivance, and collusion as defences in the fact that they assume conduct on the part of a complainant contribut- ing or leading up to the commission of the offence. Procurement implies active participation in its commission, and intentional en- couragement of licentious conduct or privity with the adulterer. Connivance is passive, — the offence is winked at. Collusion has more special reference to the object sought to be attained by the acts of the complainant, — viz., aid in obtaining a divorce. Con- nivance may be the act of one party ; collusion is the act of two or more parties to deceive the court.^ (5) Connivance. — This defence is proved either by wilful neg- lect on the husband's part in protecting the wife from the solici- tations of an adulterer, or extreme negligence in permitting such an intimacy as is likely to lead to adulterous intercourse.^ Mere imprudence on the husband's part is not connivance ; and in deter- mining whether it exists, the honesty of the husband's intention rather than the wisdom of his conduct is to be regarded.'^ Still, '" toleration," or passive sufferance of adultery for a length of time is a waiver of legal remedy.^ If a husband consents to adultery with A. and it is committed with B. the husband can have no relief. The court requires two things, — that a man shall come with pure hands himself, and shall have exacted a due purity on 1 Baker v. Baker, L. R. 5 P. D. 142, 6 Gilpin v. Gilpin, 3 Hagg. Eco. 150. 150. ' Hoar v. Hoar, 3 Hagg. Ecc. 137 ; Kix 2 Whispell V. Whispell, 4 Barb. 217. v. Rix, Id. 74. 3 Wood V. Wood, 2 Paige, 108. 8 Crewe v. Crewe, 3 Hagg. Ecc. 123 ; ■* Pomero v. Pomero, L. R. 10 P. D. Moorsom v. Moorsoni, Id. 87 ; Gipps v. 174. Gipps, 3 Sw. & T. 116 ; s. c. 11 H. L. ^ Crewe v. Crewe, 3 Hagg. Ecc. 130 n. Cases, 1. (a) Hall V. Hall, 60 L. J. P. 73. (h) Shackletou v. Sliackleton, 48 N. J. Eq. 364. 170 THE LAW OF PEKSONS. the part of liis v.ife ; and if he has relaxed as to one man, he has no right to coni}jlain of another.^ (6) Collusion. — It has been said that this is extremely difficult to define. The leading element is an attempt to deceive the court bj committing the offence, not from ordinary motives, but for the special pur])osc of obtaining a divorce. In a recent case the husband promised the wife to commit the offence for the purpose of a divorce, and instructed the wife how to detect him ; and she, acting accordingly, obtained the evidence. It was held to be a clear case of collusion.^ («) Collusion in committing the offence must be distinguished from collusion in obtaining tlie de- cree of divorce. The latter form might exist though no offence had ever been committed. There is an English statute ^ which creates a new bar to a di- vorce, — viz., neglect or misconduct on the part of the husband conducing to the wife's adultery. This is held to be something that might not amount to connivance, and yet might lead to a wife's lapse from virtue. It is applied to acts preceding her first fall from virtue.* (h) (7) Delay in prosecution, including the statute of limitations. — Delay in prosecuting may be so great as to lead to the inference that the husband or wife is insensible to the wrong done, and may practically amount to condonation. The present statute law of England makes an " unreasonable delay " a bar to an action.^ In determining what is " unreasonable delay " the court will con- sider such facts as the poverty of the petitioner,^ unwillingness on the part of the wife to subject her mother to the scandal of a public exposure, and a consequent forbearance to take proceed- ings until her death," and other matters of the same general kind by way of excuse.^ (c) Still, an unexplained delay of two years 1 Lovering v. Loveriug, 3 Hagg. Ecc. 6 Eatclift" v. Ratcliff, 1 Sw. & T. 467, 85, 87. 473 ; Wilson v. Wilson, L. R. 2 P. & D. 2 Todd V. Todd, L. R. 1 P. & D. 121, 124. 435. 8 20 & 21 Vict. c. 85, § 31. ' Kewman v. Newman, L. R. 2 P. & 4 St. Paid V. St. Paul, L. R. 1 P. & D. D. 57- 739 ; Baylis v. Baylis, Id. 395. See Haw- » Harrison v. Harrison, 3 Sw. &T. 362; kins V. Hawkins, L. R. 10 P. D. 177. Pitt v. Pitt, 33 L. T. n. s. 136 ; Mason v. s 20 & 21 Vict. c. 85, § 31. Mason, L. R. 8 P. D. 21. (a) An agreement between the parties T. R. 257 ; Starbuck v. Starbuck, 61 L. to a divorce suit to withhold from the T. R 876. court pertinent and material facts which (c) In Newman v. Newman, the court might have been adduced in support of a held that the delay of eighteen years on counter charge, is collusive, even though the part of the wife, out of consideration the facts suppressed might not be sufficient for her mother's feelings, was unreasonable; to establish the counter charge. Butler v. but granted the divorce in the exercise of Butler, L. R. 15 P. D. 66. the discretion given by the statute. See b) See also Lander v. Lander, 63 L. also Beauclerk v. Beauclerk, 60 L. J. P. 20. HUSBAND AND WIFE. 171 after full knowledge of the facts has been held to be unreason- able, and sufficient ground for dismissal of the case.^ This matter is reo-ulated in some of the American States by statute. The substance of them is, that the party must sue within a specified time after discovery of the offence.^ IV. Efect of the Divorce. — (1) The supjjort of the ivife. — If the wife be found guilty, no allowance can be made to her from the husband's estate for her future support. If she be innocent, an allowance is regularly, and as a matter of course, made from the husband's estate. This is called alimony, or permanent alimony, to distinguish it from alimony j^endente lite. Alimony is a periodical allowance to the wife from the hus- band's estate. The amount is variable, depending upon the hus- band's means, his conduct towards the wife, the conduct of the wife, and the claims of children. It originated in the ecclesias- tical courts, and was applied there to cases of limited divorce or judicial separation. It has been extended to dissolution for the husband's fault. In other words, alimony granted to a wife on dissolution of the marriage was derived by analogy from the rules ])revailing in the law of limited divorce, while alimony in cases of limited divorce was in no respect derived from the law appli- cable to cases of dissolution. Accordingly, when the divorce court in England was enabled by statutes in cases of dissolution to make a " proper provision " in her favor, resort was had to the rules of the ecclesiastical court in cases of separation to determine what that provision should be.^ The leading rules as to permanent alimony are these : — j>ule 1. — The allowance is made while the wife remains single and chaste (clum sola et casta vixer it}, and no longer.* 1 Nicholson v. Nicholson, L. R. 3 P. & the action. Valleau v. Valleau, 6 Paige, D. 53. 207. 2 See in New York Code of Civ. Pro. ^ Sidney v. Sidney, 4 S\v. & T. 178. § 1758. The time fixed is within five * This rule differs from the New York years after the discovery by the plaintiff theory holding that the wife, after the dis- of the offence charged. If a wife lives in solution, is under no obligation, as far as open and notorious adultery with a para- alimony is concerned, to remain chaste, mour, the husband's right to a divorce Forrest v. Forrest, 3 Bosw. 661. It is a will be barred at the expiration of five little difficult to see how this New York years, though the adultery was continued case can be reconciled with equitable prin- down to the time of the commencement of ciples, as a claimant for equitable relief must come into court with pure hands, (a) (a) The doctrine was reaffirmed by the The court in each case determines what is same court in Forrest v. Forrest, 8 Bosw. reasonable, having regard to all the cir- 640. See also Cole v. Cole, 142 111. 19. cumstances. Wood v. Wood [1891], P. There is no absolute rule in the English 272 ; Lander v. Lander, Id. 161 ; Wellet courts that the du7)i sola et casta clause v. Y>''eller, 63 L. T. U. 263. shall be inserted in the decree for alimony. 172 THE LAW OF PERSONS. liiilc 2. — The wife's ill-conduct before the decree may be taken into account in diminishing the allowance, and will perhaps wholly do away with it. f>iile 3. — The right to alimony is a question for the courts not for a jury. Rule 4. — The court has no right where dower is allowed to a divorced wife to require her to relinquish her dower as a condi- tion to granting alimony.^ {a) Rule 5. — Alimony can only be granted to a wife, not to a niistress.2 Rule G. — The amount of alimony is about one third of the husband's income until a full competence is awarded. It may in special circumstances amount to as much as (110,000 per year, as where the husband is wealthy and has treated the wife with great brutality.^ This amount was calculated upon a fixed income. Wkere the income is fluctuating (as in the case of a husband who is an artist), an inquiry into the average income for several years past may be had, the object being to ascertain present income.* The allowance may be made to commence at the date of the action or of the decree.^ (5) Rule 7. — The order may direct security for payment to be made a lien upon the husband's real estate.^ It would be a con- tempt of court not to give security, when so directed. The court in England may sequester the husband's income, even though it be that of a retired oflficer in the navy." A court of equity may also grant an injunction and appoint a receiver to protect the wife.^ A bill in equity may be brought for arrears of alimony after the wife's deatli.^ (c) 1 Forrest v. Forrest, 6 Duer, 102, 150- * Williams v. Williams, L. R. 1 P. & 154. D. 370. 2 See Donnelly v. Donnelly, 8 B. Mon. ^ Forrest v. Forrest, 6 Duer, 102, 148- 113. The exact ruling in this case ap- 150. plied to dower, but the princi{)le seems to ^ Forrest v. Forrest, supra. be the same. '^ Dent v. Dent, L. R. 1 P. & D. 3*56; 3 Burr V. Burr, 10 Paige, 20 ; s. c. 7 Clinton v. Clinton, Id. 215. Hill, 207. 8 Sidney v. Sidney, 17 L. T. N. s. 9. 9 Stones V. Cooke, 3 L. J. N. s. Ch. 225. {a) A separation agreement providing which may be made separately, or acconi- for the peiiodical payment of an allowance panied with alimony. The basis of this to the wife through a trustee, is not af- division is largely a matter of judicial fected by a subsequent decree for divorce discretion. For a full discussion of the and alimony granted the wife. Galusha subject, see Bishop on Marriage, Divorce, V. Galusha," 116 N. Y. 635 ; Clark v. Fos- and Separation, vol. II. §§ lllVllSg. dicK, 118 N. Y. 7. {c) A court of equity will not lend its (6) In several States of the Union aid to compel the appropriation of alimony statutes exist which provide for a division awarded a wife in a decree of divorce to of the husband's property upon a divorce, the payment of a debt contracted by her, HUSBAND AND WIFE. 173 R^le 8. — Alimony is in the nature of a wife's separate estate, and lier attorney may have a lien upon the fund for costs. ^ Rule 9. — Alimony is obtained by motion. This motion can be made in England after the final decree of divorce.^ (a) (2) Legitiviacy of children. — Of course, no question can be raised upon this point except in case of the divorce of the wife for her adultery. Xor can it be presented in her case except as to children unborn when the offence is charged to have been com- mitted. It is a rule of court in New York that all questions as to legitimacy of children must be set up in the complaint and tried as separate issues. The court has power to decide upon the legitimacy of the children begotten and born after the commis- sion of the adultery charged in the complaint or bill.^ The legit- imacy of all children born before the commencement of the action will be presumed.* The rule laid down in the famous Banbury Peerage Case ^ was that marital intercourse is to be presumed where personal access is not disproved, though the presumption may be relnitted by satisfactory evidence ; and unless the pre- sumption of access be rebutted, the husband must be taken to be the father of the child, unless there was a physical or natural impossibility in the way of paternity, (i) This rule would be applied even though acts of adultery were shown .^ While the application of this rule may result in a declaration of the legit- imacy of spurious offspring, it is made to rest on grounds of public policy to prevent undue disturbance of the peace of fam- ilies, and the possible rejection from inheritance of legitimate heirs. If, however, non-access of the husband is shown, the presumption of legitimacy will be rebutted." The evidence for the purpose of repelling the presumption must be " strong, dis- tinct, satisfactory, and conclusive." ^ It must be such as not 1 Ex pnrte Bremner, L. R. 1 P. & D. 153. Also in full in Nicholas' Law of 254. Adulterine Bastardy, pp. 289-551, both 2 Covell V. Covell, L. R. 2 P. & D. 411. inclusive. This case would not be followed in New 6 Kins; v. Luffe, 8 East, 193 ; Head v. York as the jurisdiction depends on stat- Head, 1 Sim.&Stu. 150; on appeal. Turn, nte, and the statute does not go so far. & Russ. 138. Kamp V. Kamp, 59 N. Y. 212 ; Erken- ■? Cross v. Cross, 3 Paige, 139 ; Van hrach V. Erkenbrach, 96 N. Y. 456. Aernam v. Van Aernam, 1 Barb. Ch. 375. 3 Cross V. Cross, 3 Paige, 139. ^ Per Lord Lyxdhtirst in ^Nforris v. * Id. ' Davies, 5 CI. & F. Ifi3, 265 ; Bosvile v. 6 Banbury Peerage Case, 1 Sim. & Stu. Atty-Gen'l, L. R. 12 P. D. 177. and actually subsisting prior to the date 519 ; Chamberlain v. Chamberlain, 63 of the decree. Romaine v. Chauncey, 129 Hun, 96. N. Y. 566. " {b) Burnaby v. Baillie, L. R. 42 Ch. D. (a) Cf. McBride v. McBride, 119 N. Y. 282. 174 THE LAW OF PEKSONS. to produce mere doubt, but conviction.^ It is a further rule of public policy that neither the husband nor tlie wife can be allowed to testify as witnesses to the non-existence of sexual intercourse.^ Where a man marries a woman at the time pregnant, and there is no fraud, he admits tliat he is the father.^ In one case of this kind, where the facts were peculiarly strong, it was said that the presumption of paternity was next to insuperable. Still, the pre- sumption is, after all, one of fact, and capable of being rebutted by clear evidence.^ (3) Custody of children. — This subject is for the most part now regulated by statute. By the common law, the father has in general the custody of the children. He may vindicate his right to them by the writ of habeas corpus. The court or judge may give directions concerning custody until the child is fourteen, or, by some decisions, until sixteen.^ A court of equity also has power to control the custody of children under the footing of a trust, A court of divorce has no control as such. Its function is to decree a judicial separation between the parties, or by statute to dissolve the marriage in specified cases. The custody of children is not a regular incident to this jurisdiction. Independent of statutes it would seem that the only remedy after a divorce would be a resort to a Avrit of habeas corpus or to a proceeding in equity. As it is convenient that the divorce court should be able to dispose of questions of this kind, statutes have been passed in England and in this country conferring jurisdiction upon specified courts. The jurisdiction is to be exercised either while the action is pending, or on the final decree, or after it.^ Under these statutes the court has power to make an order for access to the children in favor of either of the parties." {a) 1 Plowes V. Bossej'-, 2 Drev^^. & Sm. 145, is instituted in the Court for Divorce and 149. This case is strongly illustrative of Matiimonial Causes, and may result in the rule. declaring a marriage valid. Sliilson v. 2 Kingy. Sourton, 5 Ad. & Ell. 180 ; Atty-Gen'l, 22 W. R. 831. It cannot be Atchley v. Sprigg, 10 Jur. N. s. 144. resorted to to determine whether the peti- This rule has been relaxed in England by tioner is Jieir to a third person, Mansel v. a recent statute, permitting husbands and Atty-Gen'l, L. R. 2 P. D. 265. wives to give evidence on proceedings in- * Gardner v. Gardner, L. R. 2 App. stituted in consequence of adultery. 32 & Cas. 723. 33 Vict. c. 68. In re Yearwood's Trusts, & Mallinson v. Mallinson, L. R. 1 P. & L. R. 5 Ch. Div. 545. D. 221 ; Ryder v. Ryder, 2 Sw. & T. 225 ; 3 Montgomery v. Montgomery, 3 Barb. Queen v. Howes, 30 L. J. Mag. Cases, 47. Ch. 132. There is now a statute in Eng- 6 gge in England, 20 & 21 Vict. c. 85, land permitting a person whose legitimacy § 35 ; 22 & 23 Vict. c. 61, § 4 ; 24 & 25 may be disputed, to commence an action to Vict. c. 86, § 9. establish legitimacy, 21 & 22 Vict. c. 93, '^ Thompson v. Thompson, 2 Sw. & T. and 22 & 23 Id. c. 61, § 7. The proceeding 402. (a) Handley v. Haudley [1891], P. 124. HUSBAND AND WIFE. 175 As a father is entitled to the custody of the children from the mother's breast, the court will not take away his right without good cause. ^ At this stage of the proceedings the court can only make an interim order.^ When the mother makes an application for access, the court must be satisfied that she is influenced by mater- nal affection and has no indirect objects in view.^ The whole matter is left to the divorce court with a broad discretion, and it has a wider power than the common-law court has on habeas corpus. It may pay attention to the interests of the children, and, regarding their health, may deny the mother access to them.* The first English statute was limited in its effect, and the court's jurisdiction was spent when it made its final decree. No further order concerning custody could be made.^ A later statute gave the court power to make orders of custody after final decree in all kinds of divorce proceedings, whether for judicial separation, nul- lity, or dissolution.^ It is further to be observed upon this general subject that the innocent party has a primd facie right to the custody of the children," and that the court exercises a discretionary power ex- ceeding that which is exercised by courts of law and equity in the custody of infants.^ If the wife be unfit to have the cus- tody, even though she be successful, the court may award it to some third person.^ The court has regularly in view the superior claims of the husband to the custody of his children, but awards it to the wife, when successful, on the following general grounds : First, When the custody of the children would be a solace to her.^*^ Accordingly, she could not claim the custody of an idiot child of the age of twelve.^^ Second, Where the husband is leading a noto- riously dissolute life, the custody is awarded to the wife.^^ Third, The wife is the natural person to have the care of daughters. In the case of sons, the court may, in acting for their welfare, leave them in the custody of the father, where he is attached to them, i 1 Cartlidge v. Cartlidge, 2 Sw. & T. 567. after judgment, except in the case of judi- 2 Cubley v. Cubley, 30 L. J. Mat. cial separation. Cases, 161. '^ In a special case, the custody of one ^ Codrington v. Codrington, 3 Sw. & T. of them was given to the father, though 496. he was the party complained of. Martin * Philip V. Philip, 41 L. J. Prob. & v. IMartin, 29 L. J. Prob. & Mat. Cases, Mat. 89. 106. 5 Curtis V. Curtis, 1 Sw. & T. 192 (de- ^ Marsh v. Marsh, 1 Sw. & T. 312. cision upon 20 & 21 Vict. c. 85, § 85). ^ Chetwynd v. thetwynd, 35 L. J. Mat 6 22 & 23 Vict. c. 61, § 4. Tliis statute Cases, 21. is much more comprehensive than § 1771 ^'^ Barnes v. Barnes, L. R. 1 P. & D. 463. of the ISTew York Code of Civil Procedure, " Cooke v. Cooke, 3 Sw. & T. 248. which allows no application for custody ^- March v. March, L. R. 1 P. & D. 437. I'-Q THE LAW OF PEKSONS. discontinues immoral practices, and is engaged in profitable business. In all of these, and other instances, the court has a wide dis- cretion, and must consider the circumstances of each case.^ The court has power to enforce an order for custody, if disobeyed, by a writ of sequcstration.2 The New York statute ^ concerning custody does not materially differ from the English in its general scope, though it does not allow an order for custody in case of dissoUiti(ni of the marriage to be made after final judgment, as the English statute does. In this respect it is less liberal than the former cor- responding provision of the New York Revised Statutes.* The discretionary power given by the statute to the court of original jurisdiction cannot be reviewed by the Court of Appeals.^ (4) Effect on jjroperty rifjlits. — It will be seen hereafter that the rules of the common law give to the husband certain interests in the wife's property, both real and personal. The wife also has a right of dower in her husband's land, and, in case she survive him, by force of a statute of long standing (Statute of Distribu- tions) takes an interest as widow in the personal estate of which he dies intestate. There are frequently marriage settlements, made in view of marriage, providing both for the husband and wife, and even for children of the marriage. An important inquiry then arises as to the effect of a dissolution of a marriage for adultery upon the rights which were acquired, with the expecta- tion that the marriage would continue unbroken during the lives of both parties. A divorce court would have no inherent power to disturb prop- erty relations as thus acquired. A statute would be requisite to adapt their property interests to the changed relations of the parties growing out of the divorce. The substance of the New York regulations is, that where the wife is complainant, she be- comes, upon a divorce in her favor, sole and absolute owner of her real estate, as well as of goods and things in action in any manner belonging to her. Where the husband is complainant, he retains all the rights in the wife's property which belonged to him at the time of the decree, as though the marriage had con- tinued. A guilty wife is declared not to be entitled to dower in 1 Symington v. Symington, L. R. 2 Sc. 2 Allen v. Allen, L. R. 10 P. D. 187. & Div. App. 415. 3 Code of Civ. Pro. § 1771. By 36 & 37 Vict. c. 12 (The Infants' * Erkenbrach v. Erkenbrach, 96 N. Y. Custody Act of 1873) the ordinary courts 456, construing the Revised Statutes as to (law and equity) have increased power over this point. See also Kerr v. Kerr, 9 Daly, the custody of children, proceeding upon 517. principles of equity. In re Taylor, L. R. 6 Price v. Price, 55 N. Y. 656. 4 Ch. Div. 157. HUSBAND AND WIFE. 177 her husband's estate, or any part thereof, nor to any distributive share in his personal estate.^ (a) This legishition as to the distributive share of a guilty wife in the personal estate of her husband is superfluous and unneces- sary, since a divorced woman cannot be said to be a "widow," even though she survive her former husband, and could have no "distributive share," whether innocent or guilty. The statute presents an instance of that over-caution which may mislead, and is sometimes as dangerous as neglect. ^ It is quite different with dower, since a woman on her marriage obtains an inchoate right of dower in all lands of which her hus- band becomes "seized" of an estate of inheritance during the marriage. Accordingly, as to any lands so owned hy him prior to the divorce, the inchoate right would attach, and the divorced wife would, notwithstanding her misconduct, obtain a vested right on her survival, unless the statute prevented it.^ Of course the divorced wife would have no dower in lands acquired by the husband after the divorce, as she would not be married at the time of acquisition, and this rule would prevail whether she were innocent or guilty. The courts of some other States regard the right of dower as wholly done away with by a divorce, unless it be preserved by some special statutory rule.* 1 New York Code of Civ. Pro. §§ 1759, S\v. & T. 174. Under the later Divorce 1760, embodying the provisions formerly Amendment Act (22 & 23 Vict. c. 61 contained in 2 R. S. 146, §§ 45-48, which § 5), the court has power to deal with were repealed hy Laws of 1880, ch. 245. all deeds whereby property is settled upon 2 Estate of Ensign, 103 N. Y. 284, 287. a woman in her character of wife, and to 3 AVait V. Wait, 4 N. Y. 95, as explained be paid to her while she continues wife, in Estate of Ensign, 103. N. Y. 287, 290. Worsley *'. Worsley, L. R. 1 P. & D. 648. 4 Barber v. Root, 10 Mass. 260; Hood v. The theory is, that if a wife commits adul- Hood, 110 Mass. 463 ; Rice v. Lumley, 10 tery and the marriage is dissolved, she is Ohio St. 596 ; Lamkin v. Knapp, 20 Ohio no longer a wife, and the court can within St. 454 ; Barrett v. Failing, 111 U. S. the spirit of the statute deal with the 523. Legislation in England affecting (in settlement. Owing to the peculiar Ian- case of divorce for adultery) marriage guage of the statute, it only confers jnris- settlements made in reference to the con- diction where there has been issue of the tinuance of the marriage, is worthy of marriage, and they are living. Bird v. notice. Under the first Divorce Acts (20 Bird, L. R. 1 P. D. 231 ; Corrance v. & 21 Vict. c. 85), the court had no power Corrance, L. R. 1 P. & D. 495 (h). The to alter a settlement. Norris v. Norris, 1 principles on which the court varies the (a) A decree of divorce rendered by a the statutes of the State where it is ren- court of a sister State, having jurisdiction dered be to deprive her of dower. Id. 133 of the subject-matter and the parties, in N. Y. 540. an action brought by the husband, will not {b) By 41 & 42 Viet. c. 19, §3, the deprive the wife of her then existing dower court may vary marriage settlements where rights in New York, if the divorce were there are no children of the marriage, for any other cause than adultery. Van Yglesias v. Yglesias, L. R. 4 P. D. 71. Cleaf V. Burns, 118 N. Y. 549. This is so The court has power to vary a marriage even though the effect of the decree under settlement although the petitioner and re- 12 ITS THE L.UV 01' rr.KSONS. TluMv are soi\io oases in tho Vniclisli courts of ot]nitv holding that a inarriago sottkMuout on sioiioral priuoiiUos ol' hiw is anui- hihitod at tho niomout that tho luarriauo oontraot is dissolved, and that oven an innooont husband or other jKirtv under it would have no furthor rights in it.^ The bettor opinion, however, is that the husband or wife does not lose the advantages of a sotthunent in his favor by tho uuu'O faet of the dissolution of the marriage.^ (5) J*(iui^ dhahiUtit'S. — It has boon thought advisable in sonie States to prohibit tho guilty party from nuirrying again during the life of tho other party. This is the law of Now York.^ The provision is in the nature of a penalty. In the ahsenoe of olear words in a statute expressing tho intent that suoh a marriage shall not be oontraoted beyond tho limits of the State, it will bo assumed by tho oourt, at least in Xew York, that a marriage within the State only was proliibited. Accordingly, whore the prohibited party w^ont from Now York to Connoctient in evasion of tho hiw, was married, and returned to New York, the marriage Avas pronounced valid, the court linding in tho statute no clear expression of the will of tho legislature that tho marriage should not be contracted beyond the State limits.* Such a marriage, oontraoted within the State, is utterly void,^ and is bigamous, punishable by imprisonment in the State prison/^ This question is treated from a ditYerent point of view in Eiigh\nd. It is oonsidered that such a penalty follows the person settlement are to direct a oertaiu portion of the income, i-egul;uly pijnible to the wife, to be applietl in case of divorce for her .idultery to the lieuefit of the childivn or hnslxuid. ]y[arv>h r. Maivh, L. K. 1 P. vt D. 440. It takes into account the fortune of the wife, the jiH?cuuiary ability of the liusl>and. and the conduct of the pirties. Chetwynd p. Chetw}-nd. 11 Jur. X. s. 95S. It will not deprive a husKind of any benefit he deriveii from the settlement. Thomp- son r. Thomi^»son, 2 Sw. & T. 649. The benefit of the children and ]>arents are solely regarvled. Sykes r. Sykes. L. K. 2 P. & P. 163. Wliere the divorce is for the hnsbtxnd's adultery, it may extinintish his interest in the wife's foitnne. Gladstone r. Gladstone, L. R. 1 P. D. 442. One great object of varying the settlement is to prvvent, as far as may be just and practi- cable, tlie innocent party being damaged in a pecuniary sense by the decree of dis- solution. Maudslay r. Maudslay, L. K. 2 P. D. 256. AY here the settlement is in its terms irrevocable, the court reluctantly interferes, and will not do so beyond what justice in the case requires. Smith i". Smith. L. R. 12 P. D. 102, 104. 1 Wilkinson r. GiK*on, L. R. 4 Eq. 162; Swift f. Wenman. L. R. 10 Eq. 15 ; Fus- sell r. Dowding. L. R. 14 Eq. 421. ■- Fitzgerald r. Chapman, L. R. 1 Ch. D. 563 ; Burton i-. Sturgeon, L. R. 2 Ch. D. 31S : Evans v. Carrington, 2 De G. F. & J. 4S1, 490. s Code of Civ. Pro. § 1761. ■* Moore v. Hegeman, 92 N. Y. 521 ; Van Voorhis v. Brintuall, S6 N. Y. IS : Thorp V. Thorp, 90 X. Y. 602. 5 Cropsey v. Ogdeu. 11 X. Y. 22S. 6 People" r. Faber, 92 N. Y. 146. spondent were domiciled in Scotland and the settlemeuts were made in Scotch form. Forsyth v. Forsyth [1$91], P. 363 : Xan- nelev v. Xuunelev, L. R. 15 P. D. 186. HUSBASD ASD WIFE. 179 while his origlual domicile eontintres, ag it is a disabilitj attach- ing to the person, but that if the dissolution of the marriage be complete, either party, being no^ -'ed, is free to change the place of domicile, and there : its laiar in relation to a later marriage. ' («) The question whether a partj d' - ' for adulterr is prohib- ited from remarrying the party fr . the divorce Ts-as had^ is still open and und(f: Nfc« York coarts.^ The Code of Ciril Procedure n. ,...., that the />r- assaiiied, however, on several d!- <1) It r legal ri^Lt. * , riea witiiin the Slate ; iii oth -. --^ad except in the coarts tc^r "" *?' or. ^2) that the *5?o»?*«?£Ze C'- ■--.-• lished: or, (3) t:. J>&ent fr^jm the State '■ ': divorc ^>e i-;_-..^,^ as und^: : -:-.- -- :.-. :. ^- - - n- 1 S-/,- 1 r. Aiitj.-0?%il, L. B- 11 P. D- * Co^e of CSr. Pro. 1 17«1- 12t. 4 Blassam f. Barrett, f7 5i'- T. -454, - S%^ r?z::i5- Tr » of tike ecrart in Moors r. 7' ■ " - - ' Hi^ii.^ i-iZr. T. 52]. Ii2^, 52J<. - (») V "Sbs ^Jir--r .-.^■■^ rt'^-ly T»?rr;^- • • - ■ -rnrp a fredi a ee^ 'to tJM; 'li T -TC T g . '. ' - TO as to - ..-.er, 1. E. 15 P. D. 152.' 280 THE LAW OF PERSONS. tarily submitted to it ; or, (4) that there ^as fraud in the pro- ceedinirs and that no rule of the " comity of nations " could be based iipon a fraud. Each of these cases will now be considered. (1) The first of these views has assumed importance owing to a decision of the English House of Lords known as "Lolley's Case. " 1 This was an indictment for bigamy under the following circumstances: LoUey had been married in England to A., and a divorce having been procured by her in Scotland, on the ground of his adultery, permitting either party to marry again, he subsequently married B., also in England. Both parties were in Scotland when the divorce took place. The case is loosely reported ; but it would appear that Lolley and his wife were all the time domiciled in England, though temporarily resident in Scotland, with a view to obtaining the divorce. ^ The twelve indges of the Superior courts were consulted, and it is stated^ that they were unanimously of the opinion that no sentence or act of any foreign country or state could dissolve an English marriage a vinculo matrimonii for grounds on which it was not liable to be so dissolved in England. In a subsequent case, Lord CHA.NCELLOR Eldon Said that he understood the decision to be that as by the English law marriage was indissoluble, a mar- riage contracted in England could not be dissolved in any way except by act of the legislature.^ Lolley's Case has met with much criticism. It has not been specifically overruled, but its authority has been greatly weak- ened. It is held not to apply to a case where a domiciled Scotchman marries an English woman in England, and the marriage is dissolved in Scotland upon a ground for which, by English law, no divorce could be granted.^ This decision is wholly adverse to the interpretation which Lord Eldon put upon the case in the decision already cited. Lolley's Case is now confined in its effect to the case where the domicile is English "from the beginning to the end of the transaction." In that aspect it may properly be sustained, and it has in accordance with this view been recently held that, if a person having an English domicile goes to another country or State (in this case Kansas) to reside, without abandoning his domicile, and obtains a divorce for a cause not recognized in England, it will have 1 Rex V. Lolley, Russ. & 'Rj. Cr. Cases, » Russ. & Ry. Cr. Cases, p. 239. 237 ; also cited in Tovey v. Lindsay, 1 * Tovey v. Lindsay, 1 Dow's Rep. 117, Dow's Rep. 117, 124. 124. 2 This is the explanation given by Lord ^ Harvey v. Farnie, L. R. 6 P. D. 35 ; BiACKBCRN in Harvey v. Farnie, L. R. 8 affirmed in the House of I^ords, L. R. 8 App. Cas. 43, 59. App. Cas. 43. HUSBAND AND WIFE. 181 no effect there. ^ In the same spirit, it has been said by Lord Blackburn,''^ that there is no case either in England or Scotland which decides that Lolley's Case is not right, as he under- stands its principle, which he declares to be that parties domiciled in England, going to Scotland temporarily, cannot obtain a divorce which will be valid in England, the Scotch court having in such a case no jurisdiction over the matter. It may accordingly be laid down as a prevailing and acknowl- edged rule that the courts of the State where the parties are domiciled in good faith have jurisdiction to divorce them accord- ing to the law of the domicile, however much that may differ from the law of the place of the marriage. ^ (2) It is now generally conceded by jurists that the true place of jurisdiction over questions of divorce is the country where the parties are at the time domiciled, whether that be the place of marriage or nof (a) This proceeds upon the ground that while a marriage originates in contract, yet, as soon as it is entered into, there springs up a cluster of legal rules establishing the status of the parties, and which the parties cannot shake off by mutual consent as they can in an ordinary contract. So the capacity of the wife to act and contract is usually much impaired, if not entirely denied. These rules are no part of the marriage contract. They are mere rules of law, varying in different States and coun- tries. Public convenience and a true policy requires that these should be prescribed by the law of the domicile, and that the whole subject of status should be relegated to that law. 1 Brio-gs V. BrigiTs, L. R. 5 P. D. 163. accordingly took up a residence in London, 2 Harvey v. Faruie, L. R. 8 App. Cas. but ultimately the husband, having coin- 43^ 59. niitted adultery, abandoned his English 3 Cheever v. Wilson, 9 Wall. 108 ; residence, leaving the wife residing in Barbery. Root, 10 Mass. 260; Kinnier t?. London. It was held that the English Kiiinier, 45 N. Y. 535. divorce court had jurisdiction over the * The court of divorce in England holds absent husband. It would seem, however, that it has jurisdiction over divorces in that as the husband was never r^omzctVcrnn case of foreign marriages where the hus- England, but only resident there, such a band resides in England, although not tech- divorce, though valid for English purposes, nically domiciled there. In one case the would not be recognized as binding upon husband was a French consul who retained the husband in the country of domicile, his French domicile though he resided in according to the views prevailing in this England. Niboyet v. Niboyet, L. R. 4 country or even in England. Santo T^o- P. D. 1. doro V. Santo Teodoro, L. B. 5 P. D. 79. In a still more recent case the facts The rule giving effect elsewhere to a decree were these: An English lady consented to made in the tribunals of the domicile hns marry the son of a Neapolitan nobleman been applied to a case of divorce for nullity on condition of always having, after mar- (impotency), where the cause of divorce riage, a residence in England, and residing made the contract voidable^ Turner v. there six months each year. The parties Thompson, L. R. 13 P. D. 37. (a) See Goulder r. Goulder [1892], P. 240. 182 THE LAW OF PERSONS. The "domicile" here meant is not mere inhabitancy, but includes an intent to abide in the State. A residence simulated for the purpose of obtaining a divorce will not sufifice.(a) This is a species of fraud upon the court, as it shows the alleged domicile to be unreal, and asserted for the purpose of evading the effect of the law appropriate to the condition of the parties. It has accordingly been decided that a decree of divorce under a statute of another State authorizing a divorce between husband and wife, neither of whom is domiciled there, is of no force or effect in the State where the parties are domiciled.^ (3) In considering the question of the absence of the defendant from the State when the divorce proceedings are instituted, two distinct instances may be referred to: one, where both parties are domiciled in the State where the divorce is sought, ov forum, and the other where only one is domiciled there. Where both parties are domiciled in the forum, and one is absent, the jurisdiction of the court continues over both. One, by withdrawing from the State for a temporary purpose (it may be to avoid a divorce), does not defeat the jurisdiction of the court. 2 Accordingly, the court of the domicile may by appro- priate means seek to notify the absent party of the pending pro- ceedings, and if he does not appear, a divorce may be obtained which will be recognized in other States. The more difficult case is where the parties have separate domiciles. Though the domicile of the wife usually follows that of the husband, yet for the purposes of divorce it may be distinct. The question then arises whether when the husband or wife com- mences in the court of his or her domicile a proceeding for di- vorce against the absent party, the decree or judgment in his or her favor will be recognized in the courts of the domicile of the absent party. The correct rule here seems to be that as the court acts only upon status, it cannot declare the status of the nljsent non-domiciled defendant. It may declare the status of its own citizen, but not of the foreign citizen. There is accord- ingly nothing to prevent the absent party from commencing another divorce proceeding in the court of his or her domicile. 1 Van Fossen v. State, 37 Ohio St. 317 ; ders him amenable to the jurisdiction of People V. Dawell, 25 Mich. 247 ; State v. a divorce conrt. Utterton v. Tewsh, Fer- Arminf:;ton, 25 Minn. 29 ; Litowitch v. guson's R. 23. l.itowitch, 19 Kan. 451. The opinion of 2 Hunt v. Hunt, 72 N. Y. 217. In CooLEY, J. in People v. Dawell, S2i,pra, is this case the wife was the absent party, y)articularly satisfactory. The Scotch law but the principle appears to be equally goes to a great length, holding tliat the applicable to an absent husband, mere presence of a party in a country ren- {a) Bonaparte v. Bonaparte [1892], P. 402. HUSBAND AND WIFE. 183 Each may thus have a decree fixing status in the courts of their respective domiciles.^ The result is that a judgment of divorce where the defendant is absent and not domiciled is of no effect beyond the foru7n where it is rendered. There may be some difference of opinion as to the point whether a defendant without the State, who receives actual notice of the proceedings, would not be bound. This would, however, seem to be immaterial since the decisive fact remains that the foreign court has no power to make a decision affecting his or her status. It is important to distin- guish carefully between two questions : one whether a court in a particular State has power to grant a divorce that will be valid witJiin the limits of the State itself; the other, whether if it be valid within the State, it will be recognized elsewhere. The first question is one for the most part depending on the local statutes conferring jurisdiction, since the divorce jurisdiction belonged to the ecclesiastical courts in England, and there are no such courts here. The second question is not statutory, but depends upon the comity of states, or private international law. Decisions in accordance with the view that the foreign court cannot in such cases dispose of the ivhole question of status, and that only the status of the person domiciled within its jurisdiction can be affected, have been made in England, New York, Pennsylvania, New Jersey, Maine, Massachusetts, Michi- gan, etc. Some of the cases are referred to in the note.^ (a) The defendant may, however, appear in the action, and suhmit to the jurisdiction of the court, in which case the judgment would not merely be locally binding, but would be regarded as 1 People V. Dawell, 25 Mich. 247, Cross v. Cross, 108 N. Y. 628, tlie court opinion of Cooley, J. declined to hear further discussion, treat- 2 People V. Baker, 76 N. Y. 78 ; O'Dea ing the matter as fully settled by prior V. O'Dea, 101 N. Y. 23 ; Cook v. Cook, decisions, p. 630. Shaw v. Atty-Gen'l L. R. 56 Wis. 195 ; People v. Dawell, 25 Mich. 2 P. & D. 156. Mr. Dicey, in his excellent 247 ; Shannon v. Shannon, 4 Allen, 134 ; work on Domicil, refers this class of cases Lyon V. Lyon, 2 Gray, 367; Ralston v. (where an absent defendant is served with Ralston, 13 Phila. 30; Love v. Love, notice of the proceedings by publication in 10 Phila. 453 ; Bishop v. Bishop, 30 Pa. the local papers) to a violation of the rules St. 412. The injured party must seek of natiiral justice, p. 239. While this redress in the /or2w« of the defendant un- view is undoubtedly correct, a still broader less the defendant has removed from what proposition may be maintained (as already was before the common domicile of both, suggested) that the foreign court has no Reel V. Elder, 62 Pa. St. 308 ; Codding- poivcr to declare the status of the absent ton r. Coddington, 20 N. J. Eq. 263. Li non-domiciled defendant. (a) Williams V. Williams, 130 N. Y. son, 11 L. R. A. 443 ; Anthony v. Rice, 193. In the Matter of House, 4Q N. Y. 19 S. W. R. 423 ; Smith v.. Smith, 43 La- st. R. 286 ; Munson v. Munson, 60 Hun, Ann. 1140. 189. See, however, Thompson v. Thomp- 184 THE LAW OF PERSONS. valid in the courts of the defendant's domicile.^ This is par- ticularly true if the absent defendant goes to the State where the case is pending. ^ So if an attorney-at-law should assmne to appear for an absent defendant without authority, the act would perhaps not be strictly void, but binding until repudiated; or, in other words, voidable.^ A divorce, treated as utterly void in the court of the domicile, would result in such a manner that a person marrying according to the decree might be regarded in the courts of the domicile as having committed adultery, and be liable to an action for divorce. This view would not be taken if both parties had assented to the void proceeding, since there would be grounds for regarding the act of marriage as a connivance or procure- ment of the adultery, and so a bar to the divorce.^ (4) The last ground on which a foreign divorce may be assailed is fraud in the proceedings in which it was obtained. The case here intended to be considered is that of actual fraud upon the foreign court. In this case the foreign court itself would pre- sumably treat the divorce as void, and it could not be expected to receive any greater respect abroad than it would have at home.^ It has been frequently urged that there is a distinction between the recognition to be given judgments of courts of sister States and that due to those of the courts of foreign countries, owing to an Article of the United States Constitution, providing that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. "^ It is, however, settled that this clause is not applicable where the courts of the sister State had no jurisdiction, or where the judgment was obtained by fraud. A judgment rendered by a court without jurisdiction is not in truth a judgment, but is a mere arbitrary prescription without force in another forum. It would not have force even in a court of the same State, and much less in a tribunal of another State. The cases on this subject are numerous, and in modern times quite harmonious.'' (a) 1 Cheever v. Wilson, 9 Wall. 108. ° Kerr v. Kerr, 41 N. Y. 272. See '■2 Jones V. Jones, 108 N. Y. 415. opinion of Grovek, J., p. 278. 3 Elliott V. Wohlfrom, 5.5 Cal. 384. « Art. IV. § 1. But see ccmtra, Kerr v. Kerr, 41 N. Y. 272. "^ Borden v. Fitch, 15 Johns. 121 ; Kerr * Loud V. Loud, 129 Mass. 14 ; Palmer v. Kerr, 41 N. Y. 272 ; Thomp.son v. V. Palmer, 1 Sw. & T. 551. Whitman, 18 Wall. 457-461. (a) In some jurisdictions a judgment of the United States in an action at law may be impeached collnterdlly for fraud, upon a judgment, fraud, being an equitable Kerr v. Kerr, 41 N. Y. 272 ; Yadala v. defence, cannot properl}' be pleaded. Lawes, L. R. 25 Q. B. D. 310. In others Christmas v. Russell, 5 Wall. 290 ; Buller it is necessarj' to bring a direct proceeding v. Lidell, 43 Fed. R. 116; Maxwell v. to set the judgment aside. In the courts Stewart, 22 Wall. 77. HUSBAND AND WIFE. 185 Section III. Judicial Separation or Limited Divorce. — This form of divorce prevailed from an early period in the English ecclesiastical courts, and still exists there in the divorce court. It has been recognized in some of the American States, includ- ing New York. Many of the rules governing it are analogous to those prevailino; in the law relating to dissolution of marriage. The leading grounds for this form of divorce at present are cruelty and desertion. I. Cruelty. — Cruelty, or scevitia, cannot easily be defined, so as to state whether it amounts to a cause for divorce. There may be acts of cruelty, and yet not of the grade required to justify judicial interference. For that purpose, the wrongful acts must he grave and weighty, and show that as matters stand, the duties of married life cannot properly be discharged. To con- stitute " cruelty " in this sense, when acts of violence are relied upon, they must be of such character as to endanger safety or health, or to cause reasonable apprehension. ^ (a) Cruelty is, in general, a cumulative charge. It must evince a continued want of self-control, and be referrible to permanent causes. In a case where the charges were confined to three days in a cohab- itation of three years, they were held not to be sustained. ^ It is accordingly important to show a course of unkind treatment. However, actual personal violence is not the only kind of maltreatment for which this form of divorce may be granted. There may be moral as well as physical force systematically exerted to compel a wife's submission, and to such a degree as to break down her health. In such a case there would be legal cruelty.^ {b). The following classes of acts are not regarded as legal cruelty, — neglect, silence, shunning the wife's company, in- difference, aversion to her society, or cessation of matrimonial intercourse, — whether practiced separately or in combination, there being no personal violence or words of menace.'^ The same view was taken in a case where a husband constantly railed and swore at his wife, and refused to provide delicacies ordered by the doctor, and on several occasions beat her child 1 Milford V. Milford, L. R. 1 P. & D. 3 Kelly v. Kelly, L. Jl. 2 P. & D. 31 ; 295, 299 ; Whispell v. "Whispell, 4 Barb, affirmed on a])peal, Id. p. 59 ; Paterson v. 217. Paterson, 3 H. L. Cases, 308. 2 Plowden v. Plowden, 23 L. T. x. s. * Paterson v. Paterson, 3 H. L. Cases, 266. 308 ; Cousen v. Cousen, 4 Sw. & T. 164. (a) Fowler v. Fowler, 33 X. Y. St. Glass i;. Wjmn, 76 Ga. 319; Lutzv. Lutz, R. 746, 31 K. Y. St. R. 718 ; Jones v. Jones, 62 (b) Bethune v. Bethune [1S911, P. 205; N. H. 463. 136 THE LAW OF PERSONS. ill her presence.^ So acts committed under excitement occa- sioned by an acute disorder of the brain are not sufficient acts of cruelty, if on the cessation of the disorder the excitement terminates. It would be otherwise if the disease resulted in a new condition of the brain, rendering the party liable to ungov- ernable fits of passion, and making cohabitation dangerous.^ This principle cannot be extended to acts committed by an in- sane person.3(a) Again, habitual drunkenness is not a suffi- cient ground for a divorce for "cruelty," even though it destroy domestic comfort. '^ (h) Particular acts of misconduct may, how- ever, be considered.^ Such acts as the following have been regarded as acts of cruelty: Wilful communication to the wife of a loathsome disease; 6 ill-treatment of children in the wife's presence, if carried so far as to affect her health, may perhaps be cruelty. Such acts must directly shock the wife's sensibility. Such a case has been termed "constructive cruelty. "^ There are also certain acts of indignity and insult which have been adjudged to be cruelty, such as wilful spitting in the wife's face. Such an act as this will have weight depending on the way it is received, — as, for instance, whether it is resented or not at the time.^ This act would be sufficient for a divorce if accompanied with other acts of indignity, such as pushing and dragging her about a room.^ A similar remark may be made of unfounded charges against the wife's chastity, known by the husband to be false. ^° The same view was taken of an assault upon the wife in a public street, leading a passer-by to suppose that she was a prostitute. ^^ In cases of this kind the court has taken into con- sideration the position in which the husband has placed the wife in the family, and the authority and control exercised under his direction by the servants over her.^^ The husband may also have a divorce for the wife's cruelty. There is no reason why the court should not protect the husband 1 Birch V. Birch, 42 L. J. N. s. Prob. Mat. 23 ; Manning!; v. Manning, 6 Ir. Eep. & ilat. 23. (Equity) 417. ^ Curtis V. Curtis, 1 Sw. & T. 192, 213. » Wadclell v. Waddell, 2 Sw. & T. 584. » Hall V. Hall, 3 Sw. & T. 347. ^ Saunders v. Saunders, 1 Robertson, * Hudson V. Hudson, Id. 314. Ecc. 549. 5 Power V. Power, 4 Sw. & T. 173. i'^ Durant v. Durant, 1 Hagg. Ecc. 733, 6 N V. N , 3 Sw. & T. 234 ; 769. Boardman v. Boardman, L. R. 1 P. & D. i^ Milner v. Milner, 4 Sw. & T. 240. 233. 12 Anthony v. Anthony, 1 Sw. & T. ■? Suggate V. Suggate, 1 Sw. & T. 489 ; 594. Birch V. Birch, 42 L. J. n. .s. Prob. & (a) Cohn v. Cohn, 85 Cal. 108. (Z*) Anonymous, 17 Abb. N. C. 231. HUSBAND AND WIFE. 187 wliere the wife's passions are so little under control that she habitually uses personal violence towards him, which leads to a well-founded apprehension of bodily injury. So the moral effect of the wife's violence may be so serious that the court will inter- fere and not drive the husband to the necessity of meeting force by force.^ A husband cannot, however, obtain a divorce for cruelty on the same state of facts as a wife. He must show such a contin- ued course of bad conduct on her part as will satisfy the court that it is unsafe for him, with a due exercise of his marital power, to cohabit with her. As he is legally the head of the family, he may show efforts on her part to subvert his place in the household by proving acts of misconduct towards children, visitors, and servants. 2 II. Desertion. — This is a good ground for a decree of judicial separation in England as well as in New York and other States. In some States there may be an absolute divorce on this ground. The cause in England is " desertion without cause for two years and upwards." The words of the New York statute are " aban- donment of the plaintiff by the defendant" and "where the wife is plaintiff", the neglect or refusal of the defendant to provide for her." The word " abandonment " is practically equivalent to " deser- tion." The fair construction of the statute is that "abandon- ment" by either party is a good ground for an application for divorce by the other. There is a clear distinction made between abandonment and the refusal or neglect of the husband to provide for the wife. He may support her, and still abandon her.^ (a) The princi})al element in a case of desertion is the intent. As- suming that the charge is against the Inisband, it is the rule that the wife is entitled to his society and protection. If he refuse to live with her without reasonable cause, he may be said to have deserted her. (5) The case will not be changed by the fact that he gives her an allowance.'* Some principles governing this subject may be stated. (1) The act relied on as desertion must have been done against the will of the complainant.^ 1 White V. White, 1 Svv. & T. 591 ; This point is now settled in the husband's Prichard v. Prichard, 3 Sw. & T. 523 ; favor by § 1762 of the Code of Civil Pro- Forth V. Forth, 15 W. R. 1091. cedure. 2 Perry v. Perry, 1 Barb. Ch. 516, 3 Yeatman v. Yeatman, L. R. 1 P. & There was at one time some doubt in New D. 489. York whether, owing to the condition of * Macdonald v. Macdonald, 4 Sw. & T. the statutes, the husband eouki have such 242. a divorce. (See Perry v. Perry, 2 Paige, 501.) 3 Ward v. Ward, 1 Sw. & T. 185. (a) Clearman v. Clearman, 15 N. Y. (h) Williams v. Williams, 130 N. Y. Civ. Pro. R. 313. 193. 1S8 THE LAW OF TEESONS. (2) 111 conduct on the husband's part compelling the wife to leave him may constitute a case of desertion.^ (a) (3) Desertion consists in actually and wilfully bringing to an end an existing state of cohabitation. If cohabitation has ceased by mutual adverse acts or consent, " desertion "cannot take place until their common life and home have been resumed.^ (4) If, however, there is at first merely absence of one of the parties for a special reason, with no general intent to cease co- habitation, and afterwards the absent party ceases to correspond with the other, and shows by acts an intent not to resume con- jugal relations, the facts will constitute desertion.^ (5) (5) One party cannot urge against the other that separation is desertion, when it is involuntary, or caused by the act or default of the party complaining.* ((?) (6) If the desertion be in itself complete, a subsequent offer to return will not avail, as the deserted party has a legal right and cause of action of which he cannot be deprived without his consent.^ In determining whether the desertion is complete under this rule, regard may properly be had to the circumstances and manner of departure.^ Under the New York statute, neglect by the husband to pro- vide for the wife is a ground for an action for a limited divorce by her without desertion. On this branch of the subject there is but little adjudication^ Cruelty of the husband will not affect his right to a divorce for the wife's adultery.^ ((7) The same rule applies to a husband's desertion.^ III. Procedure in actions for limited divorce. — The mode of conducting the action is substantially the same as in a case of dissolution, and reference may be made to what has been stated 1 Graves v. Graves, 12 W. R. 1016. ^ Cargill v. Cargill, 1 Sw. & T. 235. •'' Fitzgeraki v. Fitzgerald, L. R. 1 P. 6 Cook ■;;. Cook, 13 N. J. Eq. 263 ; & D. 694 ; Townsend v. Townsend, 42 Rogers v. Rogers, 18 N. J. Eq. 445. Many L. J. N. s. Prob. & Mat. 71 ; Cooper v. authorities on this general subject are col- Cooper, 33 L. T. N. s. 264. lected in Uhlmann v. Uhlinann, 17 Abb. 3 Henty v. Henty, 33 L. T. N. s. 263 ; N. C. 236. Stickland v. Sticklaiid, 35 L. T. N. s. ' Code of Civ. Pro. § 1762 ; Ahrenfeldt 767 ; Gatehouse v. Gatehouse, L. R. 1 P. v. Ahrenfeldt, Hoffman's Ch. 47. & D. 331. 8 Forster v. Forster, 1 Hagg. Consist. * Bnckmaster v. Buckmaster, L. R. 1 E. 144, 146. P. & D. 713 ; Keech v. Keech, Id. 641 ; ^ Morgan v. Morgan, 2 Curteis Ecc. Crabb v. Crabb, Id. 601. 679. (a) Dickinson v. Dickinson, 62 L. T. (c) Williams v. Williams, 130 N. Y. R. 330. 193. [b) Drew V. Drew, 64 L. T. R. 840. (d) Cf. p. 167 ante, note {a). HUSBAND AND WIFE. 189 under that head.^ Alimony may be allowed pendente lite and '• suit money " for carrying on the litigation in the same general manner. Tlie defences will be either denial of the charges made, or recrimination, condonation, lapse of time, etc. A recriminatory charge will embrace misconduct on the part of the complain- ant.- (a) Nothing will be impertinent which is material as an absolute defence, or wliich bears upon the question of costs or the amount of alimony. It will be proper to inquire into the general course of conduct of the parties as relevant to the inquiry.^ The adultery of the plaintiff will be a bar to this kind of divorce.^ The defence of condonation may also be referred to ; cruelty may be forgiven as well as adultery. New acts of cruelty will revive the original cause of action. It is not necessary that the same grade of wrongful acts should be repeated in order to produce this result. There is an implied promise by the wrong-doer that the injured party shall be treated in all respects in a liindly man- ner. The original charge may be revived even though the new acts may not be of themselves sufhcient to justify a separation.^ (6) Where the wife is successful, permanent alimony is awarded, depending for its amount upon the estate of the husband, the grade of ill-treatment sustained by the wife, and the claims of others upon him for support.^ Where the wife is in fault, no per- manent alimony will be allowed her." The same general rules extend to applications for the custody of the children as in actions for dissolution. The decree may provide for a separation for a definite period, — as, for example, five years,^ — or it may be permanent.^ Such a divorce as this leaves the parties still husband and wife. It was originally resorted to with the hope of reconciliation. Ex- perience shows that the condition is dangerous to virtue, and the expediency of such a system may well be doubted. Any cliildren 1 Aiite,^^.\QZ etseq. ^ Peny v. Perry, 2 Barb. Ch. 311; 2 Hopper V. Hopper, 11 Paige, 46. Palmer i\ Palmer, 1 Paige, 276. 8 Whispell V. Whispell, 4 Barb. 217. » Bedell v. Bedell, 1 Johns. Ch. 604. * N. Y. Code of Civ. Pro. § 1765 ; ^ Barrere v. Barrere, 4 Johns. Ch. 187. Burdell V. Burdell, 2 Barb. 473. The fonn of decree in this case has been s Burr V. Burr, 10 Paige, 20. declared to be a good precedent. Pool v. 6 1,1. Pool, 2 Edw. Ch. 192. (a) Cruel and inhuman conduct on the 183. See also Ortmann v. Ortmann, 52 part of the plaintiff may be set up not only N. W. R. 619. as a defence but as a counterclaim, which, (&) Subsequent cohabitation is not a if proved, will entitle the defendant to a condonation of acts of cruelty in the sense decree for separation and reasonable sup- that it is of adultery, though it is evidence port. Waltermirei>."\Valtermire, 110 X. Y. of condonation. Doe r. Doe, 52 Hun, 405; Co.^ V. Cox, 23 N. Y. St. R. 691. 190 THE LAW OF PEKSONS. boni while the decree continues operative will be presumed to be illegitimate, since it will be presumed that the parties have obeyed the decree of the court.^ Still, the contrary may be shown by evidence and the legitimacy of the child established. The ])arties may apply to be discharged from the decree.^ If recon- ciled, a repetition of the offence does not revive the cause of action on which the decree or judgment was founded.^ DIVISION III, — The Legal Consequences of the Marriage Relation. By the common law, a single woman, called a feme sole, may freely make contracts, and do all acts for the disposition of lands and goods which any man in the same circumstances may do. Her mode of action is sometimes affected by rules of decency and decorum. Thus, in rendering homage to her feudal lord, while a man would say to him, " I become your man," she was not required to say, " I become your woman," but simply, " I do homage unto you." ■* On her marriage, her legal capacity to act was seriously im- paired by reason of considerations of public policy. Her legal existence was practically suspended, or merged in that of her husband. They were now called "baron and feme." It was a consequence of this suspension that she could not contract with third persons (except that she might in some instances act as agent) nor with her husband. Contracts made between them while single were dissolved by the marriage. The husband could not convey land to her, though he might, where the right to devise land existed, leave it to her by will, since the devise did not take effect until the marriage was at an end. Upon marriage he became immediate owner of her tangible personal estate, had a right to collect for his own use her rights of action, and to take for his own benefit, while they lived, the rents and profits of her real estate. On his part, he became liable for her debts and other obligations incurred before marriage, and responsible for her wrongs or torts committed before or during marriage, and was also under a legal duty to sustain her during marriage. The statements just made are only true in an unqualified 1 Parishes of St. George and St. Mar- been decided that where the parties "come garet, 1 Salk. 123. together, there is a complete end of it, and 2 Barrere v. Barrere, 4 Johns. Ch. 187. that can never again be made a cause of 8 Lord St. John v. Lad)' St. John, 11 complaint for the same purpose." Ves. 526, 532; Fletcher v. Fletcher, 3 * Comyn's Digest, Baron & Ferae (Al); Brown, C. C. 619 n. Lord Chancellor Coke upon Littleton, 66 a (§ 87). Eldox said in the case first cited that it had HUSBAND AND WIFE. 191 manner in a court of law as distinguished from equity. Courts of chancery (or equity) at an early day established an artificial system of I'ights in the wife's favor, depending upon the doctrine of " trusts for her separate use." Her rights and capacities thus became to a certain extent a matter of form rather than of sub- stance, since by placing her property under a mere technical trust, she might have powers of disposition and control of it substantially equivalent to those possessed by a single woman. Not long before the middle of the present century, this subject began to attract the attention of legislatures in this country. At first the statutes were framed on the idea of withdrawing the ownership of the wife's property from her husband as a mere result of the marriage, and with a view to enable her to exercise the ordinary acts of ownership over it, such as conveying, mort- gaging, or devising it. The general power to make contracts was still withheld. There is now a tendency to confer this also, and to assimilate the capacity of a married woman to transact busi- ness, and to make contracts, to that of a single woman. The general power to make contracts, already conceded in several States, is not likely to be long denied elsewhere. It will, however, for a long period be necessary for the theoret- ical or even practicing lawyer to be familiar with the early law. The statutes are prospective in their character, and do not abro- gate past transactions involving vested rights. Moreover, the scope of modern legislation cannot be fully understood without an intimate acquaintance with the rules of the common law. Section I. The rights of the husband in the ivife's property. Subsection I. At common laiv. — In considering the rights of the husband over the wife's property at common laiv^ six forms of ownership may be noted. (1) Her real estate owned in fee. In this case, the husband is entitled to the rents and profits while both live. He is techni- cally said to have an estate for the joint lives of himself and his wife. Should he die first, the wife is absolute owner ; should he outlive her, the estate descends to her heirs, free from all claim on his part. The interest of the husband during their joint lives can be sold by him or seized by his creditors. When a child of the marriage is born alive during the life of the wife, a different rule prevails. He then has an estate for his oivn life, outlasting the wife's life, if he survive her. This is called " tenancy by the curtesy of England," or simply " tenancy by the curtesy." Neither of these estates, while conferring upon the husband a right to the rents and profits of the land, confers the absolute 3 92 THE LAW OF PERSONS. ownership of the land upon him. This still remains in the wife, subject to her husband's partial interest. At the death of the wife the husband, being tenant by the cur- tesv, stands towards the wife's heirs in the position of a life ten- ant. Should he commit any wilful injury to the property beyond what a reasonable use of it would permit, he is guilty of " waste," which would result in forfeiture, by means of an " action of waste." By a technical rule, the heirs could only proceed against the husband foV such waste, notwithstanding a sale of his estate by him. There is no legal relationship or " privity " between the heirs and the purchaser. In like manner, if the heirs conveyed their interest, the purchaser from them could not sue the husband. This last case was at an early day changed by statute.^ (a) But if both parties (husband and heirs) convey their respective interests, the assignee of the heirs can bring his action of waste for a forfeiture against the assignee of the husband, there being privity of estate between them.^ While the husband can, in a proper sense, only convey his life estate to a grantee, he sometimes wrongfully assumes to do more and to convey the wife's entire estate. Possession taken under such a conveyance, and held in accordance with the rules governing ad- verse possession, might divest the estate of the wife or her heirs, as the case might be, and convert it into a right of action ; and this would be barred by the statute of limitations, if the action were not brought to recover the property within the time allowed by law after the husband's death. (2) An estate in land, granted to the husband and wife after marriage. This is called an estate by the entirety. Each is supposed to own the whole. On the death of either, the survivor takes the whole estate absolutely. This rule does not apply where the estate is conveyed to them before marriage. So, accord- ing to some authorities, it would not be extended to cases where there were words in the instrument showing that a different estate was intended, — e. g. a tenancy in common. (B) A life estate in land. Under this head tliere are two instances. The first is where the wife owns an estate for her own life. In this case the husband's interest ceases with the wife's life, although he is entitled to the emblements, or crops produced by labor and capital, growing at the time of her death. In the second case, if the person (called cestui que vie) by whose ^ 1 Cruise's Digest, 173 ; so in New v. Shraeder, 13 Johns. 260 ; Foot u. Dick- Ynrk, 1 R. L. 62 (1813). inson, 2 Met. 611. 8 Walker's Case, 3 Coke, 22a; Bates (a) See Code of Civ. Pro. §§ 1651-1659. HUSBAND AND WIFE. ] 93 life the duration of the estate is measured, outlives the wife, and she dies before the husband, he takes the estate as " occupant." By statute, in some States, mcluding New York, the remaining interest is treated as personal property, in which view he would usually succeed to it as administrator. If the wife should outlive the husband, any unexpired interest would belong to her, (4) Rights of action. Under this head would be included notes, bonds, book accounts, and other claims enforceable by action. The husband by common law has a right to collect these by an action for his own use. He is in such a case said " to reduce them to possession." It is not easy to define this expression. Its general signification is to bring the right of action into such complete control that he can be regarded as owner. The meaning is shown by instances. Recovery of judg- ment in their joint names is not a reduction into possession,^ nor is a collection of interest upon a debt. The receipt of the princi- pal by him would be. The same rule would be applied to a release of the debt, to the debtor. This is a plain act of dominion or ownership. So the same rule applies to a change in the nature of the debt, as where a new security is taken in the husband's name' by way of substitution for the wife's claim. There are cases in which the husband may have an election to sue alone or in their joint names ; in such a case a judgment recovered in his own name would be a "reduction into possession," while one recovered in their joint names would not be.''^ Still another mode of reducing to possession is for the hus- band to sell the right of action to a purchaser for a valuable consideration. The purchaser in such a case becomes owner with- out collecting the debt, provided that the husband had himself the power of immediate enforcement of the claim. But if the interest of the wife were at the time of the sale future or reversionary^ so that the husband could not himself then collect the claim, it is the view of many authorities that the sale is not binding upon the wife, if she survive.^ If there was fraud practised on the husband in such a sale, the right to rescind it would vest in him, and on his death would pass to his executors.^ The test question thus becomes capacity to enforce the right of action. Again, the husband's creditors may seize upon the wife's rights of action as a means of payment of their claims. Still, they would •I Searing v. Searing, 9 Paige, 283. v. Jackson, Drnry (Sngden's Dec.) 42 ; s. c. 2 Hilliard v. Hambridge, Alejoi, 36; 2 Con. & Lawson, 605; Rogers y. Acaster, Brashford v. Buckingham, Cro. Jac. 77 ; 14 Beav. 445 ; Dubeiiey v. Day, 16 Beav. Searing v. Searing, supra. 33. 2 Some of these cases are, Ashby v. * Widgery v. Tepper, L. E. 7 Ch. D. Ashby, 1 Collyer, 553; Box v. Box and Box 423. 13 194 THE LAW OF PERSONS. only acquire the power to reduce them into possession. There is however, an important distinction between this case and that of a purchaser from the husband. The hitter may acquire a title without collecting them, while if a creditor does not collect them during the husband's life, they will revert to the wife should she survive. The reason of the distinction between the two cases is, that the husband's act is a voluntary transfer, while the proceeding of the creditors is against his will, or in legal phrase, in invitum. The various claims of husband, purchaser, or creditor are subject to an important qualification. The court will, in a proper case, require a reasonable provision to be made from the property for the support of the wife and children, whether she has a life estate or an absolute interest.^ This is particularly clear when it becomes necessary for either of the above-named parties to ask the aid of a court of equity. The well-established rule that " he who seeks equity must do equity " will cover the case. It is quite immaterial whether the husband, a purchaser, or a creditor may seek relief. Instances of this kind are legacies or distribu- tive shares of an intestate's estate. The New York authorities go still farther, and will not permit a party to recover even in a court of law without making a suitable provision for a wife. The equity court will, if the case require it, interfere by injunction. ^ Should the husband not reduce tlie wife's right of action into possession, and die leaving her surviving, it belongs to her abso- lutely by survivorship.^ On the other hand, should he, under the same circumstances, survive, the things in action would belong to him beneficially, subject to the payment of the wife's debts. He could no longer, however, enforce them in his own name, or in his name joined with his wife's, since they would pass in form to his wife's administrator. Should he be, as is usuall}' the case, the administrator, he would take the rights of action, in the first instance, as the wifes representative^ and after discharging his duties in that character, the residue would belong to him indi- vidually. His position would be nearly analogous to that of a father administering on the personal estate of an only child, and entitled, after settling claims, to the residue, — the only difference l)eing that the father takes the residue by the statute of distribu- tions, and the husband by common law. If, instead of the hus- band, some other person were the administrator, the latter would settle the estate, and account to the husband for the residuum as 1 Taunton v. Morris, L. R. 11 Ch. D. 2 Van Epps v. Van Deusen, 4 Paige, 779. In this case the entire income of the 64, 74. fund (£500 per year) was settled on the 3 Gaters v. Madeley, 6 M. & "VV. 425. wife. HUSBAND AND WIFE. 195 trustee. So if the husband should, though surviving the wife, die before actually administering the estate, an administrator de bonis 7ion would be appointed on the wife's estate, and then, acting as trustee for the husband's estate, pay over the surplus to the administrator of that estate. Accordingly, there is no real con- nection between the husband's right to the administration and his right to the residue. He might be deprived of the adminis- tration and still be cestui que trust of the residue.^ This view of the husband's rights was sanctioned by the New York courts, though on somewhat different grounds, as the theory of a trust for the husband or his representatives was not developed.^ The wife's rights of action may in equity become the property of the husband by a contract between them to that effect, based on a valuable consideration. In such a case he is in substance a pur- chaser of tliem, and his title does not depend upon any act on his part reducing them to possession. (5) Chattels real. This expression includes leases of land. - This point has occasioned some diffi- culty in the courts, but the result is as above stated. The clearest exposition of the law is found in the case of Atty- Gen'l V. Partington, in the Exchequer Chamber, 10 Jur. N. s. 825, 827, 828 ; s. c. 33 L. J. Exch. 281 ; 3 H. & C. 193. The theory of the subject was there directly involved, the question being whether the husband's administrator was liable to a succession duty though the wife's administrator held the assets. Of course he could not so be liable, unless he was an equitable owner. In a very able opinion by Willes, J., it was held that the husband's administrator vx(S liable to pay the succession duty, as beneiicial owner. A single sentence from the report in the Law Journal, p. 287, will show the theory of the decision. " As the surviving hus- band is entitled to letters of administration of his wife's estate, and to reduce such property (if not reduced into possession during the coverture) into possession as her administrator but for his own benefit, so it has further been long established that the circumstance of his death, before he has so reduced the property into posses- sion, shall not affect the title thereto, but that the re^jresentative of the wife shall hold the property in truest for the representativs of the husband." The case of Fleet v. Perrins, L. R. 3 Q. B. 536 ; on ap- peal, L. R. 4 Q. B. 500, does not at all conflict with Atty-Gen'l v. Partington, siqyra. The wife's administratrix there brought an ordinary action for money had and received against a debtor to the \vife's estate. It was claimed that the action was misconceived (L. R. 3 Q. B. 540), and should have been brought by the husband's administrator. The e([uitable right of the husband's estate to the proceeds of the suit was not involved. The duty of the wife's administrator, as there held, to be the formal plaintiff against such a debtor is in precise accord with the theory of Atty-Gen'l V. Partington. Elliott r. Collier, 3 Atkyns, 526, before Lord Hardwickk, is very strong and clear in the husband's favor. The court said that the right to the thing in action vested in the husband befo)-e ad- ministrafion was taken out, and that the wife's administrator (other than the hus- band) acts as trustee for the husband. See also Betts v. Kimpton, 2 B. & Ad. 273 ; Proudley v. Fielder, 2 My. & K. 57. The trust element in favor of the husband's representatives, though the representatives of the wife must sue, was treated with great clearness by Lord Texterden in Betts v. Kimpton, supi-a, 276. The same rule was extended to personal property held by the wife in equity for ' ' her sole and separate use." On her death, it passed to her hus- band. Proudley v. Fielder, supra, 57, 58. 2 Robins V. ilcClure, 100 N. Y. 328. 196 THE LAW OF PERSONS. The riglit of the husband to these depends on special rules. The liusband is so far owner that he can dispose of tliem as he [•leases, by act taking* effect in his lifetime. He cannot leave thcni to a legatee by his will, to the prejudice of his wife's claim, if she survive. On the death of either, if the lease be then vested in the wife, it belongs absolutely to the survivor.^ (6) Tangible 2JersGnal property. This vests in the husband at the moment of the marriage, wherever the property may be. Re- duction to possession is not necessary. This rule does not include property held in trust or under any fiduciary relation, though he may in some instances perform trusts in his wife's behalf, — as, for example, he may act as administrator where she is entitled to be administratrix. Where tlie husband acts in this manner and wastes the trust estate, he is technically guilty of a " devastavit," and her separate estate will be liable, since it is said to be an '• act of folly on her part to marry a man who would waste trust property." The legatees w^ill be held to dihgence in pursuing their remedy against her.^ He also is liable for breach of trust committed by her whether before or after marriage.^ While they both live, they may be sued jointly for waste committed by her, and his estate may thus be made chargeable as well as hers.'^ If he die first, his assets will continue chargeable in equity.^ Subsection II. Statutory chancjes. — An important preliminary remark is, that the statutes regulating this subject cannot consti- tutionally interfere with vested rights. Any interest that had been actually acquired by the husband by force of the marriage would still remain vested in him.*^ Tlie rules of the statutes could be applied to property of the wife acquired after the statutes took effect,'^ without reference to the question whether the parties were or were not married before their enactment. The right of the husband to take the wife's estate is not an incident of the marriage contract, but is derived from a rule of law ; and this rule can at any time be abrogated by the legislature if there be no interference with vested rights. The legislation upon this topic is very extensive and radical, both in England and in a number of the States in this country. The details must be sought in treatises upon this subject. The general result may be indicated in the fol- 1 Moody V. Matthews, 7 Ves. 174, 183 ; * Bnnce v. Vander Grift, supra, and "Wildmaa v. Wildman, 9 Ves. 174, 177 ; cases cited. In re Bellamy, L. R. 25 Ch. D. 620. 5 Id. 2 Adair v. Shaw, 1 Sch. & Lef. 243; 6 Westervelt v. Gregg, 12 N. Y. 202; Cloughv. Bond, 3 M. & C. 490, 497; Bunce Norris v. Beyea, 13 N. Y. 273. V. Vander Grift, 8 Paige, 37. 7 Thurber v. Townsend, 22 N. Y. 517. 3 Bv;nce v. Vander Grift, supra. HUSBAND AND WIFE. 197 lowing propositions, observing the same order used in treating of the rules of the common law. (1) The husband, where this legislation prevails, has no longer an estate for life in the wife's estate in lands held in fee. He cannot take to his own use the rents and profits while he lives. He is, however, according to the New York authorities, tenant by the curtesy after the wife's death, as at common law, unless she conveys her property or disposes of it by will in a manner incon- sistent with his claim. 1 (a) (2) Similar rales apply to the wife's life estate in land. He would have no interest in it, nor in her estate for the life of another, except that if she died owner and without a will he might take it as her successor. (3) This general legislation, emancipating the wife's property from the husband's ownership and control, does not affect an estate "by tlie entirety." It still remains true that there is a theoretical unity between the husband and wife sufficient to sus- tain this estate. Accordingly, it remains as at common law.^ (b) (4), (5), and (6). The wife's rights of action, chattels real, and personal property may be grouped together for the purposes now under consideration. In each the wife is owner, without any right of control on the husband's part, and may sell or bequeath them. If she die owner, and without a will, the husband becomes administrator, and, after the payment of her debts, retains the residue for his own benefit, except so far as there may be special legislation to the contrary. It was not the object of the statutes to disturb the course of succession to the wife's property ,3 but rather to give her the absolute control over it, if she saw fit to exercise it. This subject has had much attention in the New York courts, for it was urged against the husband's right that his title at common law depended upon his being administrator upon his wife's estate, and that as the statute requiring him to take out letters of administration upon her estate had been repealed, his 1 Hatfield V. Snedeu, 54 N. Y. 280. 34 Hun, 487; Zonitleiii t>. Bram, 100 2 Bertles v. Kunan, 92 N. Y. 152. In N. Y. 12. this case the subject of the continuance of 3 McCosker v. Golden, 1 Bradf. 64 ; the doctrine of the unity of husband and Lush v. Alburtis, Id. 456; Ransom v. vife, notwithstanding lec^islntive action, is Nichols, 22 N. Y. 110. considered, pp. 159, 160 ; Brani v. Bram, (a) In England, notwithstanding the (b) Stelz v. Shreck, 128 N. Y. 263 ; ilarried Women's Property Act of 1882, a Miner v. Brown, 133 N. Y. 308 ; Hiles v. husband is still entitled on his wife's death Fisher, 67 Hun, 229. to an pstate by the curtesy. Hope v. Hope [1892], Ch. 336. 198 THE LAW OF PEESONS. title to her personal assets by succession could no longer be maintained. The common-law rule has been examined already, and it has been shown that the husband's rights to his wife's personal estate by succession do not depend upon his being administrator, but upon a general rule of substantive law. The principal decisions to this effect will be found in a note.^ The right of the husband to take the wife's estate by succession has been so far modified in New York^ as to provide that if she leave surviving descendants, and the husband survive, he has the same distributive share in the wife's personal property as a widow has in her husband's personal estate.^ (5) Section II, The duties or obligations wliich the husband assumes hy the marriage. Subsection I. To j)ay the ivife''s ayite-nuptial debts. — At com- mon law this obligation arises from the rule that the legal existence of the wife is merged in that of the husband. The 1 Ransom v. Nichols, supra ; Ryder v. Hnlse, 24 N. Y. 372 ; Olmsted v. Keyes, 8.5 N. Y. 593, 602 ; Robins v. McClure, 100 X. Y. 328. In this last case it was held that the fact that the husband was ajipointed executor, and qualified as such, did not affect his rights. 2 Laws of 1867, ch. 782 ; 2 R. S. 98, § 79. ^ The principal New Yoik statutes affecting the right of a married woman to hold and dispose of property are: Laws of 1848, ch. 200 ; Laws of 1849, ch. 375 ; Laws of 1860, ch. 90 ; Laws of 1862, ch. 172. Capacity to make contracts is con- ferred hy Laws of 1884, ch. 331, § 1 ('7). There is a comprehensive and carefully drawn statute in England, 45 & 46 Vict. c. 75, 1882, making very radical changes in the legal rules previously governing the relation of husband and wile. This act will he referred to hereafter. As far as property is concerned, it declares that the wife shall hold as her own all real and personal property which he- (n) By Laws of 1892, ch. 594. amending Laws of 1884, ch. 381, a married woman may now contract with her husband as well as with third persons, except to alter or dis- solve the marriage i-elation or to relieve the husband from liability to support her. For other statutes, see Laws of 1887, ch. 537, and Laws of 1890, ch. 51. By the latter act a married woman is given a right of action in her own name for injuries to longed to her at the time of her marriage, and all acquired after marriage, including wages, earnings, monej', and property gained or accjuired by her in any employ- ment, trade, or occupation in which she is engaged, or which she carries on separately from her husband, or hy the exercise of any literary, artistic, or scientific skill. (§2.) The intervention of a trustee is not necessary to the acquisition of prop- erty. (§ 1.) She is allowed the same civil remedies against all persons, including her husband, for the protection and secur- it}' of her property as a single woman, and in certain cases may cause criminal pro- ceedings to be instituted against him for this purpose. (§ 12.) The husband may in like manner cause criminal proceedings to he instituted against the wife. (§ 16.) In these cases, each of the parties may give evidence against the other (consult amend- ment 47 & 48 Vict. c. 14, 1884). These statutes are called the '^ Mnrried Women's Property Acts of 1882 & 1884." property, person, or character, and for in- juries arising out of the marital relation. The same act makes her liahle for torts committed by her without the husband's coercion, and relieves him from liability for such torts. See also Code Civ. Pro. § 450, as amended by ch. 248, Laws of 1890. (h) If she leave no descendants, the rule remains as at common law. Robins V. McClure, 100 IST, Y. 328. HUSBAND AND WIFE. 199 action must be brought against both and the judgment obtained against both.^ This fixes the husband's liabiHty, so that if the wife die after judgment and before execution, the husband will still be liable. He cannot set up the defence of infancy ; if he could, there would be no mode of collectiug the debt, as the wife cannot (at common law) be sued alone.^ The action must be brought and carried forward to judgment while the wife lives, so that if she die during the progress of the action and before judgment, he is discharged as husband.'^ These rules are applied without reference to the question whether the husband receives property by his wife or not. They depend upon the theoretic unity of the parties. The husband may still be liable after the wife's death as administrator upon her estate, but then only as to assets received by him in that character. The wife in all such cases is the true debtor. She may be sued alone after the husband's deaths A question has, however, been raised whether, after the husband's bankruptcy, property set- tled upon her to her sole and separate use can be taken by a creditor to pay her debt contracted before marriage. It is assumed in this inquiry that the husband is living. The solution of this question depends on the true theory of the liability of a married woman's " separate estate " for the payment of her debts. The old doctrine was that such an estate can only be made liable by an " appointment " on her part. Opinions diverge as to whether the mere creation of the debt before marriage can be treated as an implied appointment binding the estate after marriage. That is the view in the English cases, in which implications have been pressed very far.^ The New York court held under a similar state of facts that the wife was not liable, since there was no sufficient evidence of intention on her part to charge the debt upon her separate estate.^ The New York doctrine was cited recently to the English court of equity, but it was not followed." By statute it has been provided in New Yoi-k that while the action for the wife's debts contracted before marriage is still to be brought against both husband and wife, yet that the judg- 1 Mitcliinsou v. Hewson, 7 Term R. general subject of the wife's liability after 344. her husband's death. 2 Roach V. Quick, 9 Wend. 238. 7 Chubb v. Stretch, snpra, pp. 558, 561. 3 Williams v. Kent, 15 Wend. 360. In this case there was some evidence that * Woodman v. Chapman, 1 Camp. 189. Mrs. Stretch settled the propertj'- on herself ^ Chubb V. Stretch, L. R. 9 Eq. 555 ; to her separate use to avoid her creditors ; s. c. 39 L. J. Ch. 329 ; Biscoe v. Kennedy, still, the bill did not seek to set aside the 1 Brown Ch. 17 u. settlement as a fraud on creditors. See 39 6 Vanderheyden v. Mallory, 1 N. Y. L. J. Ch. 329. It was decided on general 452. There are dida in this case on the principles of law. 200 THE LAW OF PEESONS. ment and execution only affect her separate estate, unless the husband has acquired her property, in which case he is liable to the extent of the assets received from her.i This legislation does not apply to debts of this class contracted before the statute, assuming that the parties were then married. ^ A similar statute exists in England.^ Subsection II. Duty or obligation of support or maintenance. — It is the legal duty of a husband to maintain his wife in accord- ance with her station. This duty grows out of the contract of marriage, which is deemed to be a continuing contract, from which recurring obligations spring. His obligation may also be referred to the fact of cohabitation when the parties live together. In this point of view, a man may become liable to support a woman who is not his wife. This is an instance of estoppel. This lia- bility may be terminated by a discontinuance of cohabitation, while the duty to maintain a wife cannot be removed by any act of the husband. The ordinary way in w^hich a wife may make her husband liable is by incurring bills for necessaries with tradesmen and others, who may then sue the husband on the theory of an implied con- tract. This action may be resorted to for the purpose of testing the validity of a contested marriage, since the alleged husband's liability where there is no cohabitation or recognition depends on the question whether the parties are in fact married.^ The circumstances under which the liability of the husband may arise are various. (1) Wliere the parties cohabit. Where a husband and wife live together, and he makes her a sufhcient allowance for dress, etc., he is not in general liable for necessaries supplied to her without his knowledge.^ (a) The question whether goods sup- plied in such a case are necessaries suitable to her " estate and 1 Laws of 1853, cli. 576, Rev. St. (8th Law R. 188. The object of the action in ed. ) p. 2602. this instance was to determine the validity 2 Berley v. Rampacher, 5 Duer, 183. of the alleged marriage of Major Yelvevton, 3 37 & 38 Vict. c. 50, and 45 &46 Vict, the plaintiff having supplied the alleged c. 75, § 14. The rule is, however, extended wife with board, lodging, etc. to wrongs committed by her before inar- ^ Reneanx v. Teakle, 8 Exch. 680 ; riage as well as to contracts made prior to Jolly v. Rees, 15 C. B. N. s. 628 ; De- that time. See Bell v. Stocker, L. R. 10 benham v. Mellon, L. R. 5 Q. B. D. 394 ; Q. B. D. 129 as to 37 & 38 Vict. on appeal, 6 App. Cases, 24. * Thelwall v. Yelverton, 14 Irish Com. («) In several of the TTnited States See Revised Code of Iowa, § 2214 ; Rev. statutes have been passed making " family Statutes of Illinois, ch. 68, § 15. See Illing- expenses" chargeable upon the i)roperty of worth v. Barley, 33 111. App. 394; Laws both husband and wife. For these expenses of Oregon (Hill), §2874. they may be sued either jointly or severally. HUSBAND AND WIFE. 201 degree " depends partly on the rate at which he lives and allows her to live, and partly on the supply of similar articles which she may have had on hand when ordering the goods in question. ^ There are two quite distinct classes of questions : one, whether he would he liable by a mere rule of law without any assent on his part, or even against his assent ; the other, whether if he assented by approving of her purchases, or if he had had know- ledge of them and did not dissent, he would be liable without reference to the point whether the goods purchased were in fact necessaries. In reading the decisions great care must be taken to keep this distinction steadily in view. Attending to the first question at the outset, it is a settled rule that if a tradesman supply a wife clandestinely with such arti- cles as jewelry unjiecessarij for her station in life, and there is no evidence of the husband's assent, he is not liable.^ In any event the tradesman cannot sue in an action m a court of law for money lent wherewith to buy necessaries. She has no implied authority to borrow money on the husband's credit.^ (a) Still, a money-lender would have a remedy in a court of equity for such part of the borrowed money as she actually applied to the pur- chase of necessaries. The lender in such a case is allowed in equity to stand in the same position as the tradesman, and to recover under the same circumstances as he could recover in case he had sold the goods to her on credit.^ As to the second inquiry, it is clear that it is a mere question of fact. A husband may by assent impliedly authorize a wife to purchase goods for her use, even though of a highly extravagant kind, which she would have no authority to purchase as neces- saries against his consent.^ It is a further rule, when goods are necessaries, that the credit must be given to the husband. If it be given to the wife, to the exclusion of the hushcuuVs liahility, the tradesman cannot recover fi-om the husband.6 The facts of the case must be plain, or the husband will not be relieved on this ground." The term " necessaries " is to some extent of fluctuating mean- ing, and depends largely on the circumstances of each case. What 1 Morgan v. Chetwynd, 4 F. & F. 4.51 ; s. c. 7 Jur. x. s. 375 ; Deare v. Soiitten, CocKBURN, Ch. J. L. R. 9 Eq. 1.51. ^ Montague w. Benedict, 3 B. &C. 631; 5 Waithman v. Wakefield, 1 Camp, s. c. Montague v. Baron, 5 D. & R. 532. 120 ; Reid v. Teakle, 13 C. B. 627. 3 Knox V. Bushell, 3 C. B. n. s. 334 ; 6 Bentley v. Griffin, 5 Taunt. 356. Paule V. Goding, 2 F. & F. 585. 7 Jewsbury v. Newbold, 26 L, J. Exch. * Jenner v. Morris, 3 De G. F. & J. 45 ; 247. {a) Anderson v. CuUen, 16 Daly, 15. 202 THE LAW OF PERSONS. ma\' be " necessaries " under one state of facts will not be under another. Suitable food, clothing, shelter, and medical attendance would be or ought to be deemed necessaries for all. Furniture has been regarded as falling under this head.^ In certain cases, costs and expenses of legal proceedings might be included, as where he had committed or threatened to commit acts of personal violence upon her, and she had resorted to legal proceedings for her protection against such wrongful acts or threats.'-^ The Eng- lish cases hold that if the wife has reasonable grounds, in order to protect herself from injuries, to apply for a limited divorce, the husband will be liable for the necessar}^ expenses in an action on an implied contract.^ (a) This rule would not include pro- ceedings to punish the husband, for these could not be placed under the head of " necessaries." A question has been raised in England as to whether the hus- band is bound to pay one who, on his refusal, pays the funeral expenses of his deceased wife. It was decided that he is under a legal duty to provide for her suitable interment, and upon his neglect of it a third person may pay the expenses and collect them from the husband by action, on the theory of an implied contract.* It is no defence to an action for necessaries that the husband is a lunatic. The authority of a wife to pledge the husband's credit is substantially the same, whether the husband be a lunatic or not. ^ (2) Desertion hy the husband. Desertion by the husband does not relieve him from liability. If she be unprovided for, a party may supply her with necessaries, or even with money, if she apply it to her support. The husband will be liable hi equity in the latter case.^ (3) J^xpulsion of the unfefrom the hushancVs home. Where the wife is without fault and the husband compels her to leave him, she carries with her an agency to obtain necessaries. This is a 1 Hunt V. De Blaquiere, 5 Biiig. 550. Stocken v. Patrick, 29 L. T. N. s. 507. 2 Williams v. Fowler, M'C. & Y. 269 ; * Ambrose v. Kerrison, 10 C. B. 776 ; Turner v. Rookes, 10 A. & E. 47 ; Shep- Bradshaw v. Beard, 12 C. B. N. s. 344. herd v. Mackoul, 3 Camp. 326. s Read v. Legard, 6 Exch. 636 ; Rich- 3 Brown v. Ackroyd, 5 E. & B. 819 ; ardson v. Dubois, 18 W. R. 62. Wilson V. Ford, L. R. 3 Exch. 63 ; 6 Deare v. Soutten, 21 L. T. N. s. 523. (a) The authorities in the different Md. 422 ; Porter v. Briggs, 38 Iowa, 166. States as to the liability of the husband in Contra, Kincheloe v. Merriman, 54 Ark. an independent action at law for the ex- 557 ; Clarke v. Burke, 65 Wis. 359 ; Cooke penses of divorce proceedings are not in v. Newell, 40 Conn. 596 ; Pay v. Adden, harmony. That he is liable, see Gassettu. 50 N. H. 82 ; Dow v. Eyster, 79 111. 254. Pntten, 23 Kan. 340 ; Sprayberry v. Merk, See Bishop on Marria ere, Divorce, and Sep- 30 Ga. 81 ; McCurley v. Stockbridge, 62 aration. Vol. II. § 974. HUSBAND AND WIFE. 203 presumption of law incapable of being rebutted.^ She has an authority of necessity to pledge his credit for goods supplied to her.2 The rule will not be affected by any warning to tradesmen not to trust her, whether by general advertisement in the news- papers or particular notice to individuals.^ It is impossible for him to rid himself of his marital responsibility by violating his duty towards her. Ill treatment of the wife will lead to the same result. Should he so treat her that it would be no longer safe for her to remain in his house, she will be justified in leaving it, and will then carry with her a power to incur on his credit bills for her support according to his condition.^ Such conduct is equiva- lent to turning her out of his house, and she has remedies similar to those which she would have in that case.^ It was at one time held that she would not be justified in leav- ing even though the husband brought a mistress into the house.^ This absurd proposition has since been practically overruled.^ (4) Where the tvife leaves her husband against his consent and ivithout caiise. If a wife, though virtuous, leave her husband ao-ainst his consent, and without sufficient cause, his liability for her support is suspended during her absence ; ^ but if she offer to return and he refuse to receive her, his liability revives from the time of his refusal. This rule is applied without reference to the time of absence. In one case the wife was absent twelve years, under aggravating circumstances. She then unexpectedly offered to return. He, having declined to receive her, was held liable for her support.^ (5) Effect of the adultery of the tvife. This inquiry is made without reference to a divorce. The mere fact that a wife is an adulteress does not relieve the husband from liability. If he leave her in his house, he will be liable unless the tradesmen know the circumstances under which she is living.^*^ So if he cohabit with her, knowing her misconduct. In such a case he cannot turn her away for the same cause, since there would be a condonation of the offence. But if she leave his house with an adulterer, he is not bound to receive her again ; and under such circumstances she would have no implied power to pledge his 1 Harrison v. Grady, 12 Jur. x. s. 140. » Blowers v. Sturtevant, 4 Den. 46 ; 2 Johnston v. Sumner, 3 H. & N. 261. M'Cutchen v. M'Gahay, 11 Johns. 281. 3 Harris v. Morris, 4 Esp. 41. ^ M'Gahay v. Williams, 12 Johns. 293. 4 Emery v. Emery, 1 Y. & J. 501. This rule would be modified now by a di- 5 Baker v. Sampson, 14 C. B. N. s. 383. vorce on the ground of desertion, which 6 Horwood V. Heffer, 3 Taunt. 421. could not be obtained at the time of this ■^ Houliston V. Smyth, 3 Bing. 127 ; decision. Sykes v. Halstead, 1 Sand. 483 ; Pomeroy ^ Norton v. Fazan, 1 B. & P. 226. V. Wells, 8 Paige, 406. 204 THE LAW OF PERSONS. credit with tradesmen. They would be regarded as having legal notice by reason of her separation from him of the gromids of her absence. Actual notice would not be necessary .1 It has been decided that in such a case the adultery may be proved by the testimony of the wife.^ (6) Separation hy mutual covtsent and without divorce. This proposition includes the case where the husband and wife, being unable to agree or to live together, enter into an agreement to live apart, and carry the agreement into practical effect by sepa- rating. It is usual in such a case to make definite provision for the wife's support. The nature and manner of entering into such an agreement will be noticed hereafter. The general rule is that if it be faithfully kept by the husband, the wife's implied authority to bind him for necessaries is suspended during its continuance. Here, too, tradesmen are legally bound to know the reasons why the parties live apart, and actual notice to them is immaterial,^ If no means are provided for the wife, and she cannot maintain herself, it may properly be inferred that the husband intended to allow her to pledge his credit.^ If an allowance is made by mutual stipulations, she cannot pledge his credit on the plea that it is inadequate to her wants. Her agreement will stand in the way of any such claim. ^ If, however, the stipulated allowance is not paid, her authority to bind him will revive, to be suspended again on the resumption of the payment.^ (a) The question remains whether there is any other mode whereby the wife may obtain support except by pledging the husband's credit (actions for divorce not being referred to in this inquiry). It has been decided in New York that the superintendents of the poor cannot apply to the criminal court (Court of Sessions) for a summary remedy which may be resorted to in cases where parents or children do not support their relatives, since the wife is not a relative in the sense of the poor law.'' The regular remedy is to pledge the husband's credit. An action in equity will not lie to enforce the husband's liability except in aid of the regular action where judgment has been obtained and not collected.^ Where, however, the husband absconds from his wife, leaving her chargeable on the public for support, his prop- 1 Cooper V. Uoyd, 6 C. B. N. s. & Biffin v. Bionell, 7 H. & N. 8?/ ; 519. Willson v. Smyth, 1 B. & Ad. 801. ^ Id. 6 Hunt V. DeBlaquiere, 5 Bing. 550. 3 Mizen v. Pick, 3 U. & W. 481. ^ Pomeroy v. Wells, 8 Paige, 406. * Ross V. Ross, 69 111. 569 ; Emmet v. 8 Griffin v. Griffin, 47 N. Y. 134 ; Er- Norton, 8 C. & P. 506. kenbrach v. Erkenbrach, 96 N. Y. 456. (a) McKinney v. Guhman, 38 Mo. Apj*. 344. HUSBAND AND WIFE. 205 erty mav be seized and appropriated to her maintenance.^ Stat- utory provisions sometimes give summary proceedings in such cases and inflict penalties.^ Subsection III. Liability for the wife's torts or ivrongs. — There are two cases falling under this head : one is where the wrong is committed before marriage, and the other after marriage. I. Wliere the ivife commits an actionable wrong before marriage. In tliis case the husband is liable on substantially the same principle as that which makes him responsible for the perform- ance of her contracts. They must be united as defendants in the action ; judgment will be obtained against both by name. If the judgment is regularly enforced by imprisonment, he must endure it. for tlie court will not leave her in prison alone. If the tort be personal, such as an assault and battery, libel or slander, the action must, to bind him, be brought and judgment recovered while both live. Should he survive her, he will not be liable as her administrator, for such a cause of action dies with the person, though she would be liable if she survived him.-^ II. A wrong committed by the wife after marriage. There are two instances under this head. (A) Where the wrong was committed by the husband's order and in his presence. In this case it is his wrong, and he alone is liable. He could be sued for it after her death.* (B) Where the act is not committed in his presence and by his direction, the wrong is hers, and he may be sued for it, but in this case with the wife as a co-defendant.^ In order to make him personally liable, judgment must be ob- tained during the wife's life. She will remain liable for the wrong as the author of it after his death, (a) Since the wife has become by modern statutes the owner and manager of her separate estate, new questions have arisen as to 1 See N. Y. Code Crim. Pro. § 921. ^ The general rule has not been abol- 2 See, in England, 5 Geo. IV. c. 83, ished in New York. Fitzgerald v. Quann, § 3 ; 31 & 32 Vict. c. 122, § 33. In New 109 N. Y. 441. York a husband who actually abandons his * Cassin v. Delany, 38 N. Y. 178. •wife without adequate support, or leaves her ^ Fitzgerald u. Quann, 109 N. Y. 441; in danger of becoming a burden upon the Mangam v. Peck, 111 N. Y. 401. The rule public, is declared to be a " disorderly per- was applied in this last case to fraud on son," and is brought under the supervision the wife's part. of magistrates. Code of Crim. Pro. § 899. (a) This rule is now changed in New husband ; and such coercion or instigation York by statute. See Laws of 1890, ch. 51, must be proved in the same manner as any § 2. "A husband shall not be liable in other fact is required to be proved ; but damages for his wife's wrongful or tortious in all cases embraced in this section the acts, nor for injuries to person, property, wife shall be personally liable for her or the marital relation, caused by the acts wrongful or tortious acts." See also Code of his wife, unless the said acts were done of Civ. Pio. § 450, as amended by Laws by actual coercion or instigation of the of 1890, ch. 248. 206 THE LAW OF PERSONS. her liability for injuries committed in the course of its manage- ment. Thus it has been held in New York that as the husband has no longer any interest in his wife's land, she will be liable alone for the trespasses of her cattle straying from her land, and doing damage to tlie property of others.^ (a) Leaving out of view such special questions as these, it still appears to be true that the husband is liable with the wife, or alone, as the case may be, for all her personal torts, notwith- standing recent legislation, {h) That has not yet gone so far as to destroy the legal unity of husband and wife.^ Accordingly, a married woman cannot bring an action against her husband for an injury to her person and character, although she now may do so in her own name for any such injury by a third person, nor can she be sued for such a cause of action without making him a co-defendant.^ (c) Subsection IV. Liability for the ivife's crimes. — A distinction is taken between crimes of the higher grade, such as treason, murder, and robbery, and those of an inferior rank. When a wife commits an offence of the first class, she is liable to convic- tion, and cannot shield herself by the plea that she obeyed the command of her husband. In the other class of cases the pre- vailing rule is that if the offence is committed in the presence of her husband she is presumed to be under coercion, and conse- quently not responsible. This, however, is only a presumption, and it may be repelled by evidence that the husband did not com- mand the commission of the offence. Under such circumstances, she alone will be liable* (d) Section III. The capacity of the ivife to make contracts. Subsection I. At common laiv. — It is a general rule of the common law that a wife cannot bind herself by contract. Thus the promissory note (independent of statute) made by a married woman is absolutely void.^ The first statutes in New York 1 Rowe V. Smith, 45 N. Y. 230. Martin v. Robson, 65 111. 129, contra. In 2 See remarks of the court in Bertles v. England the husband is not liable for the Nunan, 92 N. Y. 159, 160. wife's torts committed after marriage. 45 3 Fitzgerald v. Quann, 33 Hun, 652 ; & 46 Vict. c. 75. affirmed in 109 K Y. 441. This decision * Under the Penal Code of New York, was placed upon the ground that statutes § 24, " it is not a defence to a married in derogation of the common law are to be woman charged with crime that the al- construed strictly, and they were not suffi- leged criminal act was committed by her ciently clear to show an intention to ab- in the presence of her husband." rogate the common-law rule. But see ^ Yale v. Dederer, ] 8 N. Y. 265. (a) Quilty u. Battle, 135 IS^. Y. 201. (c) See in New York, Laws of 1890, {h) See, however, as to the present law ch. 51, § 2. in New York, ante, p. 205, note (a). {d) United States v. Terry, 42 Fed. R. 317. HUSBAND AND WIFE. 207 enlarging the wife's capacity to act did not give her power to make contracts. She only came within the purview of those acts when she had a separate estate.^ Without that, she was left in the same position as at common law. Later statutes have been more liberal. ^ (a) The disability to contract is not, says Lord Hardwicke, for want of judgment, but because she is under the power of her husband.^ To this general rule of incapacity there are several exceptions, a number of which have been long rooted in the law. Exception L A wife may acquire real estate by purchase, but cannot hold it against her husband's consent. At his death she has the capacity to disagree to such a purchase or to affirm it. Exception IL At a very early period she was able to convey her real estate by a fictitious proceeding of a judicial nature, termed a " fine. " An action was assumed to be brought by an intending purchaser which, in form, included as defendants both the husband and wife. In this proceeding it was claimed that the land belonged to the plaintiff (the purchaser). The husband and wife appeared in court and had an admission entered on the records that the land did not belong to them, and that the plaintiff was the owner. This fact, by a technical doctrine (estoppel), precluded them from claiming the estate in opposition to the record in court.* The practical result was that the purchaser became the owner. Safeguards were adopted as early as the reign of Edward I. to prevent the wife from being misled. A private examination was required by the court, apart from the husband, to ascertain whether she acted of her own free will. This rule was in time relaxed, so that the wife could appear before commissioners out of court instead of in court, and her statement could be certified by them to the court. The method of conveying the estates of married women by " fine " did not exist in practice in the colony of New York before the Revolution. This fact led to much doubt and con- troversy as to the validity of conveyances made by married women. A statute was passed by the colonial legislature, in 1 Ballin v. Uillaye, 37 N. Y. 35. * This was by no means the only effect 2 Laws of 1884, ch. 381. There was no of a fine. The subject is well and tersely general capacity to contract until that act. explained in note 171, Butler's Ed. to Linderman v. Farquharson, 101 N. Y. 434. Coke upon Littleton. See also 5 Cruise's 3 Hearle v. Greenbank, 1 Ves. Sr. 298, Digest, tit. 35, ch. 5. 305. (a) See also Laws of 1887, ch. 537 ; Laws 1892, ch. 594. 203 THE LAW OF PEESONS. 1771, confirming in favor of purchasers in good faith titles pre- viously made without the wife's acknowledgment before a com- missioner such as that required in England by the law of fines. ^ The act of 1771 was aflfirmed in the State Constitution of 1777. The act of 1771, above referred to, not only cured defects, if any, in prior conveyances, but established a rule for the future. It then became necessary that a married woman, in executing a conveyance, should comply with that rule in the English law of fines, which required a private examination apart from her hus- band. It was required, if she were a resident of the State, that she should appear before designated officers, or magistrates authorized to take her acknowledgment, and to acknowledge privately, and separate and apart from her husband, that she executed the conveyance freely and without fear of or compul- sion by her husband. This acknowledgment was not required if she were a non-resident of the State. In that case she could convey as if she were a single woman. The same rule was applied where she did not act in her own right, but under a power conferred upon her by another, except that if the instru- ment granting her the power required her to execute it by deed^ it must be acknowledged ; for it is only by the prescribed form of acknowledgment that a married woman can execute a " deed. " ^ When the acknowledgment already referred to is required by law, a deed executed without it is void as to the wife.^ This defect could not be healed by a subsequent acknowledgment, for this would only cause the instrument to take effect from the time of the acknowledgment. If in the mean time a regular conveyance had been made to another, the title of the latter would prevail. The rule cannot be evaded by antedating the deed as though it were executed before marriage, and by execut- ing it in the wife's maiden name.* If a married woman be a minor, a compliance with the statute of acknowledgments will not make her conveyance valid. Her infancy is a separate and independent ground of invalidity.^ The fact of private acknowledgment can only be proved by an official certificate. A material defect in the certificate cannot 1 Ch. 1484, Feb. 16, 1771 ; amended, - Jackson v. Edwards, 7 Paige, 386, ch. 1609, March 8, 1773. Constantine v. 402 ; on appeal, 22 Wend. 498. Van Winkle, 6 Hill, 177 (reversing 2 ^ Jackson v. Stevens, 16 Johns. 110 ; Hill, 240) ; Van Winkle v. Constantine, Jackson v. Cairns, 20 Johns. 301 ; Gillet 10 N. Y. 422. In these cases the Colonial v. Stanlej', 1 Hill, 121. history of this subject is thoroncfhly sifted, * Galliano v. Lane, 2 Sandf. Ch. 147. and satisfactory results are reached. See ^ gool v. Mix, 17 Wend. 119 ; Sand- also Meriam v. Harsen, 2 Barb. Ch. ford i'. McLean, 3 Paige, 117; Sherman v, 232. Garfield, 1 Den. 329. HUSBAND AND WIFE. 209 be supplied by external evidence. ^ The rule required an agree- ment to convey to be acknowledged as well as the conveyance itself. 2 The law of New York did not require the husband to unite with his wife in a conveyance, so as to make it valid as to her.^ So stood the law in New York until the year 1848. In that year the rule underwent a radical change, applicable to future conveyances. It was provided in substance that a married woman might acquire and convey real estate as if she were a single woman, and it was further provided that it should not in any way be subject to the disposal of her husband. The effect of this legislation was deemed to be that a private acknowledg- ment was no longer necessary to the conveyance of a wife's estate.* The act, however, did not extend to a release of a married woman's inchoate right of dower, and as to that a private acknowledgment remained necessary. The whole subject of private acknowledgments is swept away in New York by more recent legislation, all statutes requiring it being repealed ; ^ in fact, it has practically disappeared from American law. It has also been abrogated in England by the " Married Women's Property Act of 1882 " (45 & 46 Vict. c. 75). ^ It is a settled rule that one of the parties to a marriage can- not, by common law, convey to the other. This is a technical rule growing out of the legal unity of husband and wife. It is modified in a court of equity where the conveyance is made for a valuable consideration. The consideration converts the grantor into a trustee for the grantee. The practical result in such a case is that though there is no true transfer of title, a trust is fastened upon the property which a court of equity will protect and enforce. Leaving this special case out of view, and supposing the transaction to be in sub- stance a voluntary conveyance or a mere gift, it will be void both in law and in equity, since no trust can be raised for want of a 1 Elwood V. Klock, 13 Barb. 50. In ^ Laws of 1879, ch. 2-19, as amended England a certificate of acknowledgment, bj- Laws of 1880, ch. 300. made twenty years after the wife made the ^ This statute was applied by the court acknowledgment, has been upheld. In re to a settlement made under the prior Chalker, 47 L. J. C. P. Div. 378. statute of 40 & 41 A^ict. c. 18, § 50 (1877), 2 Knowles v. McCamby, 10 Paige, 342. though in that act a private examination 8 Firemen's Ins. Co. v. Bay, 4 Barb, was required. Riddell v. Errington, L. R. 407 ; on appeal, suh. nam. Albany Fire 26 Ch. D. 220 ; but in the later case of Ins. Co. V. Bay, 4 N. Y. 9. Harris' Settled Estates, it was determined * Blood V. Humphrey, 17 Barb. 660 ; that the new rule was only applicable to Andrews v. Shaffer, 12 How. Pr. 441 ; Yale property acquired after the act of 1882 V. Dederer, 18 N. Y. 265, 271 ; Wiles v. went into effect. L. R. 28 Ch. D. 171, Peck, 26 K Y. 42, 46, 47. 174. 14 210 THE LAW OF PEKSONS. pecuniary consideration. ^ A valid transfer may be made by a conveyance by one of the parties to a third person, who may, in turn, convey to the other party to the marriage. ^ In conveying to the third person, the object of the conveyance may be stated in the instrument. ^ In New York, since June 6, 1887, a con- veyance may be made directly to the husband or wife by the other party, without the intervention of a third person.^ This act is in express terms made prospective. A word may be added as to the effect of a married woman's conveyance, in case she has no interest in the land at the time of the conveyance, but subsequently becomes owner. There is a marked contrast in this respect between a conveyance by a woman when single and when married. If she were single, and had made a covenant of warranty, the subsequently acquired land would have passed to the grantee by force of the covenant. Being married, her deed will operate, notwithstanding the covenant, only as a transfer of what she owned at the time.^ The reason of this is, that the covenant operates as a contract; but a married woman cannot make a contract. It would seem, accordingly, that wherever the law gives a married woman capacity to contract, she may, by means of a covenant of warranty, transfer her subsequently acquired possessions; in other words, she may covenant with the same effect, as if she were a single woman. Exception III. Another exception to the incapacity of the wife to contract exists, according to some authorities, where she is a resident in a particular country, and her husband is a non- resident alien, in the sense of having never resided there. ^ Later cases in England have thrown doubt upon this doctrine. It now appears to be decided there that it is not enough that the husband is a non-resident alien. He must also be civilly dead." The American cases are more liberal. Some maintain that if a husband abandons his wife, and she supports herself by her labor, she has a common-law capacity to contract.^ But the 1 White V. Wager, 25 N. Y. 328 ; Wi- 5 Jackson v. Vanderheyden, 17 Johns, nans t>. Peebles, 32 N. Y. 423. It was held, 167; Teal v. Woodworth, 3 Paige, 470; however, in Hunt v. Johnson, 44 N. Y. Carpenter v. Scherraerhorn, 2 Barb. Ch. 27, that a deed of gift from a husband to 314. a wife would be sustained in equity on ^ M'Arthur v. Bloom, 2 Duer, 151 ; account of his duty to support her, which Kay v. de Pienne, 3 Camp. 123 ; Walford would be a consideration. i'. de Pienne, 2 Esp. 554. 2 Jackson v. Stevens, 16 Johns. 110; "^ Barden Keverberg, 2 M. & W. 61; Dernpsey v. Tylee, 3 Duer, 73 ; Meriam v. Boggett v. Frier, 11 East, 301 ; De Wahl Harsen, 2 Barb. Ch. 232. v. Braune, 1 H. & N. 178. * Lynch v. Livingston, 6 N. Y. 422. ^ Abbot v. Bayley, 6 Pick. 89 ; Gregory * Laws of 1887, ch. 537. v. Pierce, 4 Met. 478. HUSBAND AND WIFE. 211 elopement of the wife gives her no right to make contracts. Nor does the fact that they live apart under articles of separa- tion. They still remain husband and wife. Lord Mansfield attempted to introduce into the law a more lax doctrine in the case of separation, 1 but his views have not been followed. ^ So the judicial separation of the parties does not restore to the wife her capacity to contract. Subsection II. Special statutory rules. — There have grown up from time to time in New York special statutory exceptions since 1849, which may be enumerated as showing the steady progress of legislation in removing the incapacity of married women to perform valid legal acts. (1) By the Laws of 1850, ch. 91, she may deposit money in a savings bank, and may receive payments upon the deposits. ((?) (2) She may take and hold a life insurance policy upon her husband's life. The amount of the insurance money may be made payable to her in case she survives, and if she does not survive her husband, to her children. The premium may be paid by the husband, but should not exceed five hundred dollars per annum, since all in excess of that sum will create a trust for the husband's creditors. ^ (J) If the statutes be followed, such a policy cannot be reached by the husband's creditors.* The husband, in taking out such a policy, acts as the agent of those for whom it is taken, and they acquire a vested interest in it as soon as it is delivered to him, even though they have no knowledge that the insurance has been taken out.^ He would 1 Corbett v. Poelnitz, 1 Durn. & East, * Bloomingdale v. Lisberger, 24 Hun, (Term R.) 5. 355. 2 Beach v. Beach, 2 Hill, 260. ^ Whitehead v. N. Y. Life Ins. Co., 102 3 The laws upon this subject are : Laws N". Y. 143 ; Raker v. Union Mut. Life of 1840, ch. 80 ; 1858, ch. 187 ; 1862, ch. Ins. Co., 43 N. Y. 283. 70 ; 1866, ch. 656 ; 1870, ch. 277 ; 1873, ch. 821; 1879, ch. 248. («) This statute was re-enacted in sub- is in excess of .$500 per annum. In such stance by the same act that repealed it. an action the husband and wife may be See Laws of 1875, ch. 371. This act was in restrained from transferring the policy, turn repealed by ch. 402, § 1, par. 33, of except in subordination to the lien of the the Laws of 1882, and re-enacted by ch. creditor. A like judgment may be ren- 409, Laws of 1882. The provision seems dered as to the future contingent interests to have been omitted from the Banking of children. Stokes w. Amerman, 121 N.Y. f:,xw of 1892, ch. 689, Laws of 1892. (See 337. See also Hasten v. Amerman, 20 Art. III. § 114.) Abb. N. C. 443. As to following part- (b) An action is maintainable in equity nership funds fraudulently used by one Iiy a judgment creditor, during the life of partner for the payment of premiums on Uie policy, to adjudge and declare a lien policies for his wife's benefit, see Holmes upon the policy in his favor, where the i-. Oilman, 138 N. Y. 369; Shaleri;. Trow- amount of premiums paid by the husband bridge, 28 N. J. Eq. 595. 212 THE LAW OF PERSONS. have no power to surrender the policy, since his agency would not extend so far. (a) Before the statute, it was quite doubtful whether the wife and children had an insurable interest in the life of the husband and father. ^ A policy would, in its nature, be assignable by those having an interest in it. The early acts by implication took away the power of assignment. The policy was deemed inalienable on grounds of public policy. ^(5) A policy, in its terms made pay- able to a wife without naming the children, would, if the hus- band survived, belong to him as survivor. ^ This would be true on the common-law ground of the husband's title to a wife's chattels in case of his survivorship. The later statutes provide for an assignment with the husband's written consent, and also for a surrender.'* Assuming that the policy is inalienable, and that an attempt of the wife to transfer it will have no legal effect upon her right, still her creditors could not claim that the assignment made in the lifetime of her husband was fraudulent as to them.° The rule of inalienability has been held to apply, whether the premiums were paid by the husband, wife, or third person.^ Since the statute of 1879, the policy may be assigned with the husband's written consent as above stated. The act of joining in the assignment is a sufficient consent.''' Such an assignment would be valid to the extent of the wife's interest, even though there were a clause in the policy making the insurance money payable to the children in case the wife did not survive the husband.^ But if the prescribed event happened, the children's interest would not be afTected, since their contingent right would have become vested.^ There are similar provisions in Massachusetts and in other States. Under the law of England, policies of life insurance may be issued in the name of a wife. The statute is more compre- 1 Ruse V. Mut. Benefit Life Ins. Co., 23 ^ Smillie y. Quinn, 90 N. Y. 492. N. Y. 516 ; but see remarks of Andrews, *> Frank v. Mutual Life Ins. Co., 102 J., in Brummer v. Cohn, 86 N. Y. 11. N. Y. 266. 2 Wilson V. Lawrence, 76 IST. Y. 585 ; '^ Anderson v. Goldsmith, 103 N. Y. Eadie v. Slimmon, 26 N. Y. 9 ; Barry v. 617. Equitable Life Assurance Soc, 59 N. Y. 8 i(j, 587 ; Brummer v. Cohn, 86 N. Y. 11. 9 Dictum in Fowler v. Butterby, 78 3 Olmsted v. Keyes, 85 N. Y. 593. N. Y. 68. * Laws of 1873, ch. 821; Laws of 1879, eh. 248. (a) But such a surrender will prevent a conditions. Schneider v. TJ. S. Life Ins. recoveiy by the wife in an action on the Co., 123 N. Y. 109. policy, if she, or her husband as her agent, (b) Brick v. Campbell, 122 N. Y. 337. has failed to perform one of its essential HUSBAND AND WIFE. 213 hensive than those in New York, and permits a wife to take out a policy for the benefit of her husband and children, or any of them. There are provisions to prevent fraud upon creditors, and also for allowing the insured to appoint from time to time a trustee of the moneys payable under the policy, and when none is appointed, constituting the insured a trustee for the beneficiaries. ^ (3) The right of a married woman to a patent for her own invention is conceded to her by statute, and she may perform all acts in relation to it as if she were sole and unmarried. ^ (4) She has rights as a stockholder in a corporation and the capacity of voting as a stockholder upon all shares of stock belonging to her.^ (5) She has also a right to her earnings, including the profits of a business carried on on her separate account. The statutes give her a right to collect her earnings by action.* This rule does not allow her to claim compensation from her husband for services rendered in his family, (a) She cannot validly contract with her husband, as against his creditors, — e. g., for services in attending upon and nursing his mother in sickness.^ (6) She has the general control of her separate estate, may bring actions or be sued concerning it, and become responsible for costs. (7) She may carry on a trade or business, and make contracts respecting it as a single woman may do.^ (6). 1 45 & 46 Vict. c. 75, § 11 (1882). * Laws of 1860, ch. 90 ; Laws of 1862, 2 New York, Laws of 1845, ch. 11. cli. 172. 3 Laws of 1851, ch. 321. ^ Coleman v. Bnrr, 93 N. Y. 17. 6 Laws of 1860, ch. 90; 1862, ch. 172. (a) Blaechinska v. Howard Mission, married woman should appear, prosecute, 130 N. Y. 497. The legislation in New or defend alone or joined with others as if York upon the subject of the rights of single. It was decided under this section married women has not deprived the hus- that a wife might maintain an action in band of the common-law right to avail her own name against one who had enticed himself of a profit or benefit from the ser- away her husband, and deprived her of his vices of the wife. Porter v. Dunn, 131 society. Bennett v. Bennett, 116 N. Y. N. Y. 314. 584. See, however, as to actions to re- [b] By ch. 90, Laws of 1860, and ch. cover for personal injuries, Ball v. Burle- 172, Lawsof 1862, a married woman could son, 23 Abb. N. C. 332. maintain an action in her own name for By ch. 248, Laws of 1890, amending damages to her person or character, the § 450 of the Code, and ch. 51, Lawsof 1890, same as if she were sole. These pro- the husband is no longer a necessary or visions were, however, repealed by ch. 245, proper party to an action or special pro- §§ 36, 38 of the Laws of 1880. ceeding to recover damages for an injury By § 450 of the Code of Civil Prnce- to the person, estate, or character of the dure, as amended in 1879, it was provided wife, that, in an action or special proceeding, a 214 THE LAW OF PERSONS. A survey of these specified instances shows that they carry with them no general power to make contracts. That power was only allowed in special instances, and for well-defmed purposes. The effect of them was summed up by the Court of Appeals, in 1882, as follows: A married woman cannot bind her- self by contract, unless, first, the obligation was created by her in or about carrying on her trade or business ; second, the contract relates to, or is made for, the benefit of her separate estate ; or, third, the intention to charge her separate estate is expressed in the instrument or contract by which the liability is created; or, fourth, the debt was created for property purchased by her.^ A much more radical change in the law was produced in 1884.2 This statute provides that a married woman may contract to the same extent, with like effect, and in the same form as if unmar- ried, and that she and her separate estate shall be liable whether the contract relates to her separate business or not. The act, however, has no application to any contract between husband and wife. (a). Important questions have been presented as to the capacity of the wife to enter into certain contracts with her husband, not- withstanding the exception found in the act of 1884, just referred to. Prominent among these is the inquiry, whether the husband and wife can become partners as between themselves. It will scarcely be denied that they might by their acts make themselves liable to third persons, as if they were partners.^ As to this point, the authorities are irreconcilable. They are referred to in the note.* (b) It would seem, however, that a married woman can be an agent for her husband, and that, reciprocally, her husband can be an agent for her, and that each may be a general as well as 1 Saratoga County Bank v. Pruyn, 90 * Bitter v. Kathraan, 61 N. Y. 512 ; N. Y. 250. Koel v. Kinney, 106 N. Y. 74 ; s. c. 19 2 Laws of 1884, ch. 381. Abb. N. C. 239 ; Kaufman v. SchoefFel, 8 See the reasoning of the court in 37 Hun, 140 ; Graff v. Kinney, Id. 405. Noel V. Kinney, 106 N. Y. 74, 80, 81. (a) This act was amended by Laws of cided that under ch. 90, Laws of 1860, a 1892, ch. 594, and § 2 of the statute of wife cannot escape liability on the ground 1884 e.xempting contracts between hus- of coverture, where husband and wife band and wife from the operation of tlie assume to carry on business as partners, act, was expressly repealed. The statute and contract debts in the cour.se of such of 1892 practically provides that the wife busines.s. may contract with her husband or any See, however, Lowenstein v. Salinger, other person to the same extent, with like 42 N. Y. St. Rep. 414. All doubt upon effect, and in the same form as if unmar- the subject would seem to be removed by ried. See ante, p. 198, note (a). the amendment to Laws of 1884, ch. 381. (h) A later case in the Court of Ap- See ch. 594, Laws of 1892. peals, Suau v. Caffe, 122 N. Y. 308, de- HUSBAND AND WIFE. 215 a special agent for the other. The wife can dispose of her own interest in property owned by them jointly, and her husband's interest on the theory of agency ; and the same line of remark applies to the husband. This would practically result in a partnership if they bought and sold merchandise with a view to sharing the prolits. The doubt accordingly seems to be unfounded, and the husband and wife may be partners both between themselves and as to third persons. A statute quite as sweeping and comprehensive was passed in England in 1882 ; 45 & 46 Vict. c. 75. This is a clearly drawn and well guarded act. It declares her contract to be binding on her " separate property," and includes in that expression all that she owns at the time or may subsequently acquire. Section IY. The view taken by courts of equity of the wife's " separate estate,^"" and the relation to this of recent legislation. Courts of equity at an early day established two trusts in favor of married women which gave her a power of control over prop- erty which she did not possess without them. One was called the " trust for separate use," and the other, the " pin money " trust. By means of these she could hold property independently of her husband or dispose of it and manage it in direct con- travention to the rules of the common law. It has been said that the court by this means clearly violated the rules of prop- erty as between husband and wife, but that the jurisdiction thus exercised accorded with popular feeling, and prevailed.^ This doctrine was first established in favor of a wife who was living apart from her husband by a deed of separation, or in a case where he was a spendthrift.^ At a later period the principle was extended to other cases. A Separate Use Trust may be attached in equity to both real and personal property. It is of more importance to the wife in personal than in real estate, since in the former the title would vest absolutely in the husband if there were no trust, while in the latter he would have at most but a life estate. The trust for " separate use " is not to be confounded with the wife's separate property, which is not placed under such a trust. 1 Speuce's Equity Jur., 596 ; Adams should be at her disposing." 21 Jac. I. on Equity, 43. Another case in the same volume is Georges 2 Sanky v. Golding, Gary's R. 124, i>. Chancie, Id. p. 97. " A feme covert be- 21st year of Queen Elizabeth ; Fleshward ing scimrated, having an allowance of two V. Jackson, Tothill's Rep. 94. The case is hundred pounds, she improved it and short, and is here transcribed: "Money disposed of it by her will." 15 Car. I. given to a/emc covert for her maintenance. There is a number of cases in this volume, Because her husband is an unthrift, the pp. 93-96, in which the wife sues without hu.sband pretends the money to be his ; her hu.sband, and in the name of a next but the court ordered that the money friend, and sues the husband himself. 216 THE LAW OF PEESONS. Thus if a wife should acquire land by descent, she would own it (subject to her husband's life estate), but there would be no trust. More than this, there might even be a trust estate vested in the wife, without being a trust for her " separate use." This latter trust is created by an agreement, or perhaps by a will, in which the intention is sufficiently disclosed. This leads to the inquiry, — how the " separate use " trust may be created. Some usual forms will now be stated. (1) By antenuptial settlement. Such an agreement made before marriage and founded upon it, whether made by the proposed hus- band or some third person, is based upon a valuable consideration. The wife, acting in good faith, may hold the property as against the claims of the settlor's creditors, unless they have interests or liens in and upon the property itself.^ (2) Postnuptial settlement. Property may in like manner be settled upon the wife by the husband or others after marriage. The marriage in this case is not a valuable consideration, since it has already taken place. Some new and independent consider- ation is necessary to make it valid as to the creditors of the set- tlor. She might, for example, part with her own property on the faith of the settlement.^ An agreement to settle property, made in legal form, will in the view of the court be equivalent to an actual settlement. Such a transaction is a trust. If a conveyance be made in this way directly between the parties, though void in law, it will be upheld in equity.^ (a) A settlement made after marriage without pecuniary considera- tion is a mere gift. It is not binding upon existing creditors of the settlor,'^ but this rule has been in later years relaxed so far as to uphold it, in case the settlor retains sufficient property of in- trinsic value to pay his creditors. It is, however, binding on the settlor himself, including the husband.^ (5) It will be exempted 1 Bradish v. Gibbs, 3 Johns. Ch. 523; ^ Livingston v. Livingston, 2 Johns. Magniac v. Thompson, 7 Pet. 348. The Ch. 537. principles on which an antenuptial settle- ^ Simmons v. McElwain, 26 Barb. 419; ment between persons of large means Garlick v. Strong, 3 Paige, 440. should be construed, were stated in Gorham * Reade v. Livingston, 3 Johns. Ch. V. Fillmore, 111 N. Y. 251. 481. 5 Martin v. Martin, 1 N. Y. 473. (a) But see Sliaffer v. Kugler, 107 Mo. husband to his wife is valid as against 58. A husband maj' make a valid gift to subsequent creditors, unless made with in- his wife of his interest in a contract for tent to defraud them, or secretly, or with the purchase of land. Fruhauf y. Bend- a view of embarking in some new or hazard- heim, 127 N. Y. 587. ous business. Keuberger v. Keim, 134 (6) A voluntary conveyance from a N. Y. 35. HUSBAND AND WIFE. 217 from the claims of subsequent creditors, if made in good faith and with sufficient notoriety. (3) Settlement 7nade with a view to separation. Such a tran- saction will be upheld if made with a view to immediate separa- tion. There has been much diversity of opinion upon this point, though the rule now seems to be fully settled.^ (a) Courts of equity will grant the usual remedies resorted to for the enforce- ment of contracts in this class of cases, — e. [/., specific perform- ance, injunction, etc. It is, however, essential that a separation should in fact take place, and be intended to take place, otherwise the instrument will be void.^ The effect of the instrument is next to be noticed. A wife living apart from a husband under a deed of separation is no longer subject to his authority.^ The deed will not be invalidated by the subsequent adultery of the wife, unless she had induced her husband to execute it in contemplation of illicit intercourse, which would be a species of fraud.* It is, however, avoided by the parties coming together again.^ (b) But a clause in the deed that the parties may visit each other in case of sick- ness will not vitiate it, though an actual visit might have that effect.^ The court does not authorize or sanction these agree- ments ; at most it only tolerates them.' Stipulations depriving the husband of the custody of tlie cliil- dren will in general be void as opposed to public policy and the welfare of the children.^ If, however, it appears in the particular case that the conduct of the father is injurious to the child, this view will not be taken.^ (^hich have been raised. ^ But a court will not deprive the father of his right because some stranger has conferred a bene- fit, such as an estate, upon the child, upon condition that the guardianship shall be relinquished. ^ The result in such a case would be that if the husband did not renounce the guar- dianship vested in him by law, the estate would not vest in the child. Such a condition will be interpreted strictly. One of the results of the right of custody is, that the father may, in general, remove the child beyond the jurisdiction of the court. 3 Still, the right of removal beyond the State may turn upon the point whether the infant has been made, through judi- cial proceedings, a "ward of the Court of Chancery." In such a case the English decisions do not permit a removal with a view to permanently residing abroad, except in cases of imperative necessity, as, for example, whore a constant residence in a warmer climate is essential to health.* (a) In such cases a plan for the infant's education is usually sanctioned by the court. ^ Where such wards are taken abroad temporarily, security that they will be brought back may be required. ^ The clandestine removal of such a ward may amount to a criminal contempt of court. Persons are sometimes made " wards of court " with a view of applying these principles to their cases. '^ In the case cited in the note, a father having six sons, and being about to emigrate to Canada, was restrained on special grounds from taking with him one son, but allowed to take the rest. The court will not compel an infant ward to be taken out of the country.*^ In the case cited the child was an orphan, and both a British subject and an American citizen. II. The right of discipline and training. — This topic is closely allied to the right of custody. The father could not fully dis- charge his trust obligations without this accompanying right. One of the results is that he may, to a reasonable extent, ad- minister corporal punishment to a minor child. The power 1 Hill V. Gomme, 1 Beav. 540 ; s. c. 5 * Campbell v. Mackay, 2 M. & C. 31 ; M. & C. 250. "Wyndham v. Ennismore, 1 Keen, 467. 2 Vanartsdalen v. Vanartsdalen, 14 Pa. ^ ij. St. 384. 6 Biggs V. Terry, 1 M. & C. 675 ; Re 3 Wood V. Wood, 5 Paige, 596. The Medley, 6 Ir. R. Eq. 339 — where a form father will not be restrained in such a re- of security may be found. moval except in a clear case of abuse of his '' Vidler v. Collyer, 47 L. T. 283. authority, when he will be enjoined from ^ Dawson v. Jay, 3 De G. M. & G. 764. removing him. {a) But see Elliott v. Lambert, L. R. 28 Ch. D. 186 ; Stetson v. Stetson, 80 Me. 483. PARENT AND CHILD. 245 thus conferred upon the father may be delegated to a school- master, who may exercise it under the same limitations. If either father or schoolmaster, in administering such punish- ment, exceed the bounds of moderation, he will be liable to an action for damages at the suit of the child, and even to a criminal prosecution on behalf of the public. The topic of moral and religious education is one of much importance, and involves the mode of parental training for the duties of citizenship. It has received great attention in the English courts. The general rule of the English Court of Chancery is that an infant is to be brought up in the religion of the father. ^ (a) So if the father be dead, the child is presumed to have the father's religion, and his corresponding civil and social status, and it is accordingly the duty of a guardian to bring up the child in the father's religion.^ The Court of Chancery has jurisdiction to restrain a father from interfering with the religious education of his child in special cases, but will not exercise it unless the interference of the father will be injurious to the happiness and welfare of the child.3 The general rule above stated will be qualified in cases where the father, or if he be dead, the relatives of a different religion, have consented to his education in another faith until the doc- trines of the religion in which he has been reared have taken a strong hold upon his mind.* In these and kindred cases the rule may be applied that though the father had an original right, he has abdicated it in favor of those who have conducted the practi- cal education of the child. ^ This rule was not applied to a case where the court, owing to the delicate health of a young child, had directed it to continue with the mother and her relatives, they being Protestants, the father having been of the Roman Catholic religion, and dying while the child was only a few months old. It was directed that when at the age of seven, and capable of receiving religious education, it should be trained in the Roman Catholic religion.*^ 1 In re Newbery, L. R. 1 Ch. App. 263. < Stourton v. Stourton, 8 De G. M. & 2 Skinner v. Orde, 8 Moore, P. C. G. 760. C. N. s. 261 ; s. c. L. R. 4 P. C. 60 ; 5 Hill v. Hill, 8 Jur. N. s. 609 ; In re Hawksworth v. Hawksworth, L. R. 6 Ch. Garnett, 20 W. R. 222 ; Andrews v. Salt, 539. L. R. 8 Ch. 622. 3 In re Meades, 5 Ir. R. (Eq. ) 98; Davis « Austin v. Austin, 4 De G. J. & S. 716; V. Davis, 10 W, K. 245. s. c. 34 Beav. 257. (a) See also 54 & 55 Vict. c. 3, § 4. 246 THE LAW OF PERSONS. There may be cases in whic.h the court will protect the con- scientious convictions of a minor child, though adverse to the religious doctrines and declared wishes of a living father. Such a power should only be exercised in an extreme case, and with great caution, i When the father is dead, it is the general duty of guardians to give the children the same religious training as the father would have adopted had he been living. If this rule is not followed, it is a ground of removal from office. ^ (a) The fact that it will be more to the pecuniary interest of the child to train him in one religion than another, cannot properly influ- ence the guardian.^ Notwithstanding the rules already stated, the father may abandon or abdicate his right to control the religious education of his children. This will depend upon his acts. The fact that he has made children wards of the court is not in itself an abdication.^ In some instances there are ante-nuptial agree- ments between husband and wife as to this subject. These do not control the court. ^(6) They will, however, be taken into account in determining whether the father has abandoned his rights.^ Instances of abandonment will be found in the note." III. Mil/Jit to the services of a minor child. — A father has a right to the services of his child, and if he be employed by others, to recover his wages. ^ The father might lose his right to sue for wages by an implied assent that the son should receive them; as, for instance, if the latter should enter into a con- tract to that effect, with his father's knowledge, the father might then be estopped from claiming them. By a New York statute, the parent must notify the employer within thirty days after the commencement of the service that he claims the wages ; other- wise, payments made to the child will be valid. ^(c) 1 In re Grimes, 11 Ir. R. (Eq.) 465. Garnett, 20 W. R. 222 ; Be Clarke, L. R. 2 lie Hunt, 2 Con. & L. 373. 21 Ch. D. 817 ; Re Walsh, 13 L. R. Ir. 8 Talbot i;. Shrewsbury, 4 M. &C. 672. 269. In Ee Besant, L. R. 11 Ch. D. 508, Reference may also be made to Skinner v, a child was removed from the custody of Orde, 8 Moore, P. C. C. N. s. 261, and the mother, because she had published an to Austin V. Austin, 4 De G. J. & S. 716. obscene book. * Agar-EUis v. Lascelles, L. R. 10 Ch. « Shute v. Dorr, 5 Wend. 204 ; Went- D. 49. worth v. Buhler, 3 E. D. Smith, 305. s Andrews v. Salt, L. R. 8 Ch. 622. » Laws of 1850, ch. 266 ; see Clinton r. 6 Id. Rowland, 24 Barb. 634. 1 Hill V. Hill, 8 Jur. n. s. 609 ; Re {a) This rule is not changed by the the guardian. In re Scanlan, L. R. 40 Guardianship of Infants Act, 49 & SOVict. Ch. D. 200. c. 27, which, after the death of the father, (b) In re Nevin [1891], 2 Ch. D. 299. constitutes alone or with others the mother (c) See McClurg v. McKercher, 56 Hun, 305. PARENT AND CHILD. 247 The subject of " emancipation " must here be referred to. This is a popular rather than an accurate expression. It means the case where the child receives his wages by the father's consent and supports himself, (a) He may accordingly sue his employer and collect the wages to his own use.^ Emancipation seems to be in its nature simply a license, and to be re vocable. 2(^) The contrary seems to be held in Pennsylvania. ^ It would seem that he cannot withdraw Iiis consent after wao-es are earned.* It is quite plain that if the child, notwith- standing its "emancipation," became sick and unable to work, the father would be required to support it.^ Emancipation is a question of fact, and may be inferred from circumstances as well as shown by express words. ^ When a child is emancipated, the father's creditors cannot insist that the child's earnings shall be applied to pay the father's debts. The right of the father is a personal one, and may be waived. ^ The right of the mother, being a widow, to claim the services is not fully settled. It is acknowledged in New York, 8 but denied in Pennsylvania, and in some other States,^ Actions for loss of service. The most important question that arises in practice is the right of a parent to bring an action for damages for loss of the child's services caused by the wrongful act of a third party. This is a question quite distinct from that of the right of the child to bring an action for the damage sus- tained by himself. This last named cause of action would be an action for an injury to an absolute right, and would be gov- erned by the same rule as if there were no parent. The present inquiry is, whether beyond the right of the child to sue in his own name, there is an action by the parent to sue in his name, and to hold whatever damages may be recovered to his own use. It is well settled that such an action will lie. It cannot, however, be maintained for an injury caused in carrying oid a contract with the child, as, if a child were a passenger on a rail- 1 McCo)' y. Huffman, 8 Cow. 84. It is « Canovar v. Cooper, 3 Barb. 115 ; there said that a {a.ther " ma,y emancipate Baker v. Baker, 41 Vt. 55; Dierker v. his child," p. 85. Hess, 54 Mo. 246. 3 Clark V. Fitch, 2 Wend. 459. The "^ Johnson v. Silsbee, 49 N. H. 543 ; opinion in this case was written by the Atwood v. Holcoinb, 39 Conn. 270 ; same judge (Savage, Ch. J.) who wrote in Lord v. Poor, 23 Me. 569. McCoy V. Huffman, siqjra. ^ Furman v. Van Sise, 56 N. Y. 435. s Gilkeson v. Gilkeson, 1 Phil. 194. ^ Railway v. Stutler, 54 Pa. St. 375; * Torrens v. Campbell, 74 Pa. St. 470. South v. Dennistoii, 2 Watts, 474, 477. 6 Clark V. Fitch, 2 Wend. 459. (a) Kain v. Larkin, 131 N. Y. 300 ; (*) Soldanels v. Mo. Pacific Ry. Co., Stanley V. Natl. Union Bank, 115 N.Y. 122. 23 Mo. App. 516. 248 THE LAW OF PERSONS. road pursuant to a contract made by himself, and were injured by the carrier's negligence, the father, not being a party to the contract, would have no cause of action. The reason of this rule is that the railroad company had no contract with the father ; and, in general, no one can sue for a breach of duty in carrying out a contract, except one who is a party to it. (1) An action by a father for the seduction of a daughter. (2) Other actions for injury to a child. (1) The action by a father for the seduction of a daughter is based in general upon a loss of service. There are cases in which the claim has been rested upon an assumed trespass upon the land of the father for an improper purpose, the fact of seduc- tion being used in aggravation of damages. Much the more common theory of the action is "loss of service." This seems, at first sight, to be a very narrow and technical ground. Still, practical justice is done by this view, as the ser- vice is used only to give a basis for the action, while the dam- ages may be made by the jury proportionate to the real wrong and disgrace caused to the father and to his family, so far as pecuniary damages can give compensation in such a case. The consent of the daughter prevents her from recovering from the seducer upon the maxim volenti non fit injuria, unless the act were connected with a breach of promise of marriage, and then the action must be based upon breach of the contract, and the seduction proved in aggravation of damages. The consent of the daughter, however, does not prejudice the father's right of action, since his right to her services cannot be taken away with- out his consent. It certainly cannot be claimed with reason that if force is used there is no action by the father.^ It is, in fact, immaterial whether the daughter consents or not. {a) The father does not recover as such, but only in the capacity of one to whom service is due. There are two cases to be considered separately. One is where the daughter is a minor, and the other where she is an adult. In the first case the father can maintain an action, even though she does not live in the family, or even though she be in the employment of another, receiving wages to her own use. It is enough that he is entitled to her services. No acts of service are necessary in this case.^ {h) The English 1 Lawrence v. Spence, 29 Hun, 169 and v. Prime, 21 Id. 79 ; Mulvehall v. Mill- cases cited. ward, 11 N. Y. 343. 2 Clark V. Fitch, 2 Wend. 459 ; Hewitt (a) If the consent of the parent is oh- (h) Simpson v. Grayson, 54 Ark. 404 ; tained by fraud, it furnishes no defence to Mohry v. Hoffman, 86 Pa. St. 358. an action against, the seducer for loss of service. Lawyer v. Fritclier, 130 N.Y. 239. PARENT AND CHILD. 249 courts do not go so far, but hold that the father cannot recover even in the case of a minor daughter, where she has left his family without the intention to return. ^ If she has been dis- charged from service with another, and was returning home when seduced, the action will lie.''^ (a) When a father has lost the right to the minor daughter's ser- vices, no action will lie, — as, for example, in the case where she is seduced while apprenticed to another. ^ But if the seducer had caused her to be apprenticed to him, having in view her seduction, there would be no bar to an action.* A stepfather, or other person standing in place of a parent, may recover when the actual relation of service and employment exists.^ When the daughter is over twenty-one, the decisions are uniform. There must be actual service. Slight acts are sufficient. The loss of service in each case must be the direct and proxi- mate consequence of the unlawful intercourse. In a case where the daughter's fault became public, and she was made sick by the exposure, it was held that the sickness was due to the exposure, and the action would not lie.^ The damages, when the action is by the parent, may be exem- plary, and given as a solace to his wounded feelings, and to atone in a measure for the disgrace to the family, and without reference to the fact that the father is a man of bad character.' If the action were brought by a mere master or employer having no capacity to be injured beyond the worth of the services lost, compensation could be recovered only for the loss actually sustained.^ The action is personal, and the cause of action does not survive to the executors in case of the father's death, (h) It may be added, though not strictly belonging to this topic, that seduction is made, under specified circumstances, a crime, both under the laws of several of the States, including New York, and by Act of Congress.^ 1 Dean v. Teel, 5 East, 45. 6 Knight v. Wilcox, 14 N. Y. 413. 2 Terry v. Hutchinson, L. R. 3 Q. B. ^ Dain v. Wycoff, 18 N. Y. 45. y 599. ^ Lipe v. Eisenlerd, 32 N. Y. 229, 238. 3 Dain r. Wycoff, 7 N. Y. 191. ' By Revised Statutes of the United * Dain v. Wycoff, 18 N. Y. 45. States,"§§ 5349-5351, both inclusive, it is ^ Hartley v. Richtmyer, 4 N. Y. 38. made a crime for any of the officers or crew (a) See Gladney v. Murphy, 26 L. R. proof of seductiop nlone. Stoudt w. Shep- Ir. 651. herd, 73 Mich. 588 ; Franklin r. McCorkle, (h) The common-law rule that there 16 L^a, Tenn. 609 ; Felkiier v. Scarlet, 29 must be a loss of service to entitle a parent Ind. 154. So in some States the daughter or guardian to sue for the seduction of the may herself prosecute an action as plaintiff child is abolished by statute in several for her own seduction- Dodd v. Focht, 72 States, and an action is maintainable on Iowa, 579, and authorities supra. 250 THE LAW OF PERSONS. (2) Other actions for injury to a child. If the child, when thus injured, is of sufficient age to render acts of service, the action is maintainable. If, however, the injury is temporary, and the child is too young at the time the injury is inflicted to render service, substantial damages cannot be recovered by the parent.^ If, on the other hand, the injury be permanent, prospective damages are recoverable by the parent up to the time when the child would have reached twenty-one years of a^e. Such damages are necessarily, to a considerable extent, conjectural, since the child might not have attained his majority, even had the injury not occurred, or have been able to render service, and the parent might not live till that time; still, the whole matter must, at a trial, be submitted to the jury, (a) Expenses attributable to the injury, actually incurred, or imme- diately necessary, (^>) are also recoverable by the parent, but not such as are prospective. These can only be recovered, if at all, by an action in the child's own name.''^ It has been held in one case to be a rule of law that if a young child be wrongfully killed by another, the parent can recover damages for loss of service up to the time when the child would have attained twenty-one had he lived. ^ This decision has met with much criticism in later decisions.'* The importance of the decision is seriously diminished by modern statutes, allowing actions by persons standing in various of an American vessel (luring a voyage to of seduction the female has had unlawful seduce and have illicit connection with any connection with another (Boyce v. The female passenger. Conviction cannot be People, S!<7?ra), nor that pregnancy did not had on the testimony of the female alone, follow. The Penal Code, § 282, also makes The subsequent intermarriage of the parties the ahdudion of females in certain in- may be pleaded in bar of the conviction, stances criminal. In New YoiJ<, the woman must be unmar- ^ Castanos v. Ritter, 3 Duer, 370. ried, and seduced by means of a promise of ^ Cuming v. B. C. E. R. Co., 109 N. Y. marriage, and must be of previous chaste 95. The action in this case was brought character. N. Y. Penal Code, §§ 284-286. by the mother. See also Hussey v. Ryan, Under this act it is not material that the 64 Md. 426 ; Dennis v. Clark, 2 Cush. promise was made some time prior to the 347. The English cases do not seem to illicit intercourse. Armstrong v. The allow recovery for such expenses unless the People, 70 N. Y. 38. The crime may be child is at the time old enough to render committed, even though the accused acts of service. Grinnell v. Wells, 7 Man. effected his object by means of a con- & G. 1033 ; Hall v. Hollander, 4 B. & C. ditional promise that if the girl would 660. permit the illicit connection he would ^ poj.(j ^ Monroe, 20 Wend. 210. marry her. Boyce w. The People, 55 N. Y. * Green v. Hudson River R. R. Co., 2 644 ; Kenyon v. The People, 26 N. Y. 203. Abb. Ct. App. Dec. 277 ; Carey v. Berk- It is no defence that after the alleged act shire R. R. Co., 1 Cush. 475. (a) Dollard v. Roberts, 130 N, Y. (h) Dollard v. Roberts, snpra ; Barnes -69. V. Keene, 132 N. Y. 13. PARENT AND CHILD. 251 relative positions to recover compensation in case of injuries to those with whom they are connected, causing death. As this right is a statutory one, the statutes must be consulted for details. Some general principles governing this legislation may properly be stated here, although it is not confined to the case of a parent seeking to recover for the loss of a child. At the common law no action would lie for an injury caus- ing death. None could possibly be maintained by the person killed. The better opinion is that none could be brought for loss of service, unless for such as should be suffered in an inter- val between the injury and death. Where the death was instantaneous, no action would lie on behalf of any one.^ This defect in the law was remedied in England by a statute known as Lord Campbell's Act.^ The substance of this act has been enacted in many of the States. The leading points in it are these: — (1) When a party injured would have had an action against a wrong-doer if death had not ensued, the latter is liable to an action notwithstanding the death of the party injured. (2) The action is to be brought by the executor or adminis- trator of the person deceased, for the benefit of the wife, husband, parent, and child of such person. (3) The jury may give damages proportioned to the injury, and may divide them, after deduction of costs, among the benefi- ciaries above named by their verdict. (4) There cannot be more than one action for the same subject matter of complaint, {a) (5) The action must be commenced within twelve calendar months after the death, (h) The second statute permits the parties in interest, or one or more of them, to sue where there is no action brought by the executor or administrator within six months, and also allows the person causing the injury to pay the money into court under certain regulations. 1 Per Lord Blackburn in Seward v. pal promoter, 9 & ]0 Vict. c. 93, amended " Vera Cruz," L. R. 10 App. Cases (H. L.) 27 & 28 Id. c. 95. See also N. Y. Code of 59, 70. Civ. Pro. §§ 1902-1905. 2 So called from the name of its princi- (a) A recovery, in an action under Lord Ry. Co., L. R. 10 C. P. 189 ; Cf. Pulling Campbell's Act, is not a bar to a subse- v. Great Eastern Ry. Co., L. R. 9 Q. B. D. quent action on contract by the personal 110; Cregin v. Brooklyn Crosstown Ry. representative, for damages to the estate of Co., 75 N. Y. 192. the deceased during his lifetime, caused by (b) The limitation in New York i.s two the breach of contract which resulted in years from the date of death. Code of death. Daly v. D. W. & W. Ry. Co., 30 Civ. Pro. § 1902. L. R. Ir. 514 : Bradshaw v. Lancashire 252 THE LAW OF PERSONS. The following leading rules prevail in the construction of this and similar statutes. Rule I. If the injured party, had he lived, could not success- fully have maintained an action, the executor or administrator cannot. One prominent result is, that if the person killed was guilty of negligence contributing to the injury^ no recovery is allowed.^ The expression "contributory negligence" means that neglect on the part of the person injured, without which the death would not have happened. He is thus in a sense the author of the injury and consequent death. This rule is not applied in the case of young children injured or killed, with the same severity as in the case of adults. Thus, it has been held not to be negligence in itself for the parents of an intelligent child four and a half years old to permit it to play in the crowded streets of a city without an attendant, the child having no other place for amusement. ^ Special circumstances might exist which would make the question one of fact, to be decided by a jury. Rule II. The amount of damages to be recovered in the action is to be determined by the jury under all the circum- stances subject to such review as is allowed by the practice of the court in the case of excessive damages. In the case of a child, it would seem that the damages are not necessarily limited to its minority. ^ In some States there is a positive lim- itation beyond which the verdict may not go, — as, for example, $5,000. It is clear that the father may recover the whole value of the child's services up to majority, within the statutory limit, if any.* Rule III. The statute has but a local effect, and the injury must occur within the State where the action is brought, or if not, within a State having a statute of the same kind. Rule IV. The object of this legislation was to give a personal action for damages for a personal injury. It cannot be properly extended to an action in a court of admiralty against a ship for injuries done, without clearer words in this or some other statute.^ (a) 1 This rule is not applied under the ^ Birkett y. Knickerbocker Ice Co., 110 Massachusetts statutes to a passenger. N". Y. 504. Merrill v. Eastern R. R. Co.,139 Mass. 252. * McGovern v. N. Y. Central R. R. Co., '^ Birkett v. Knickerbocker Ice Co., 110 67 N. Y. 417. N. Y. 504. See as to contributory negli- 6 Seward v. Vera Cruz R. R., L. R. 10 gence in this class of cases, Bateheler v. App. Cas. 59. There were words in another Fortescue, L. R. 11 Q. B. D. 474. act giving the court of admiralty jurisdic- (a) An action in personam against the ralty Division. The Bernina, L. R. 12 owners of the vessel will lie in the Adini- P. D. 58 ; atf'd, 13 App. Cas. 1. PAEENT AND CHILD. 253 Rule V. Mere mental suffering from the death of a child is not an element of damage under these statutes. ^ There must be true damages, and if none are shown, only nominal damages can be recovered. 2 Conjectural damages are not recoverable, — such as that the party killed was in the line of promotion, and would have received higher wages.^ Independent of Lord Campbell's Act and others resembling it, the right of a parent to recover damages is so far affected by the act of the child, that if the latter, by an act of negligence contributing to the injury, could not himself recover, the father cannot. As has been seen, this doctrine of negligence is not to be applied to a very young child, where the parent or other person having it in charge is not negligent.* Where there is doubt as to the capacity of the child to exercise care, and so avoid the effect of the negligent acts of another, the whole ques- tion will be submitted to the jury. As a general rule, persons doing acts which may, when they are negligent, result in injury to young children, are bound, if they are aware of their presence, to exercise more care to avoid injuring them than in the case of mature persons.^ The cause of action in this class of cases is founded in tort.^ Where the injury causing death ivas committed on the high seas, obscure questions are presented, involving the power of the States to legislate upon matters occurring upon the high seas, if the ship belongs to one who is domiciled within the State. The following propositions have been decided: (1) The court of admiralty has no jurisdiction in such a case independent of statute, (a) This result was reached by holding, in the first instance, that by the common law no action lies in a common-law court for any injury which results in death ; ^ and next, by an adjudication that there is no distinction between the admiralty law and the strict com- mon law on this point.^ (2) The law of the State will be appli- tion over claims " for damage done by any « Mangam v. Brooklyn R. R. Co., 38 ship." These words were not sufficient to N. Y. 455. include a case under Lord Campbell's s Q'Mara v. Hudson River R. R. Co., 38 Act. N. Y. 445 ; Ihl v. R. R. Co., 47 N.Y. 317. 1 Galveston v. Barbona, 62 Tex. 172. 6 Kobinson v. Oceanic S. N. Co., 112 2 Atchison, &c. R. R. v. Weber, 33 N. Y. 315. Kan. 543. ^ Insurance Co. v. Brame, 95 U. S. 754. 3 Brown v. Chicago, R. I. & P. R. R. 8 The Harrisburg, 119 U. S. 199 and Co.. 64 Iowa, 652. many cases cited in the opinion. (a) The Wydale, 37 Fed. R. 716; the United States, sitting as a court of ad- Welsh V. The North Cambria, 39 Fed. R. miralty, where the local law which gives a 615; The Alaska, 130 U. S. 201; The right of action to the personal represen- Oregon, 45 Fed. R. 62. A libel in rem for tatives of the deceased does not expressly damages incurred by loss of life will not create a lien. The Corsair, 145 U. S. be entertained by the District Court of 335. 254 THE LAW OF PERSONS. cable wlierc a citizen of such State is wrongfully killed on board of a vessel on the high seas, where the vessel was registered at a port within the State.^ This decision involves the further propo- sitions that the law of the State extends even to acts done on the high seas, if not in conflict with the maritime jurisdiction of the United States, and that there is no such conflict of jurisdiction.^ (a) A parent may proceed under the Civil Damage Act for inju- ries caused by the sale of intoxicating drinks to his child. The principles governing this subject have already been considered in the fifth section of the chapter on the law of husband and wife.^ The father, however, as such, has no rigJit to the estate of the child derived by inheritance, bequest, or from other sources. If there be money belonging to him in the hands of an executor or administrator, he cannot, as father, demand it.* He must claim it, if at all, in the character of guardian, after giving the usual bonds. Should he reside out of the State, he must be appointed guardian here.^ Should he, as father, assume to sell his child's goods, he would convey no title to the purchaser.^ Section III. The Relation of the Child toivards the Parent. — This topic may be considered under three subdivisions. I. Status or domicile. II. Rights of child as such. III. Duties of children towards parents. 1 McDonald v. Mallory, 77 N. Y. 546. ralty and maritime jurisdiction." Art. Ill, 2 This point is by no means acquiesced § 2. It would seem reasonable to hold in by all students of maritime law. The that the legislative power was by implica- New York court at first decided differently tion exclusively vested in Congress, with- in the case of Kelly v. Crapo, 45 N. Y. 86. out reference to the clause concerning This decision was reversed in Crapo v. foreign or interstate commerce, as being Kelly, 16 Wallace (U. S. ) 610, appar- legislation necessarily of a national charac- ently on the ground that the ship, though ter or for national purposes. The opposite on the hi£,'h seas, might be a part of the view leads to the almost whimsical conclu- territory of a State, and, for some purposes, sion that each State, no matter how far as completely so as if she had been physi- from the ocean, has for certain purposes its cally within the bounds of that State, own maritime law. The difficulties attend- This may be conceded to be the general ing this view are forcibly stated in^ a rule of maritime law, and yet it may not he pamphlet written by R. C. McMurtrie, applicable to this country, by reason of the published April 4, 1889. maritime jurisdiction conferred by the Con- ^ Ante, pp. 226 et scq. stitution upon the United States. The * Genet v. Tallmadge, 1 Johns. Ch. 3; whole matter thus depends upon the true s. c. Id. 561. construction of the Constitution. This is ^ Williams v. Storrs, 6 Johns. Ch. 353. singularly vague and indefinite as to the In New York a legacy under $50 may be legislative power of Congress over maritime paid to a father for the use of a minor child. subjects, though the judicial power is con- Code of Civ. Pro. § 2746. ferred in very broad and comprehensive ^ Fonda v. Van Home, 15 Wend. 631. terms. It extends " to all cases of admi- (a) Cf. Welsh v. The North Cambria, 40 Fed. R. 655. PARENT AND CHILD. 255 I. Status or domicile. — The domicile of a legitimate child at his birth is in general that of the father, or, if he be dead, that of the mother. He belongs to the class of dependent persons, and his domicile may be changed from time to time by the per- son upon whom he is dependent.^ If no such change be made, the " domicile of origin " continues during infancy, and even after majority, until he change it by his own act.^ Though there have been doubts expressed by some authorities whether the mother can change the child's domicile, the better opinion is that, in general, if the father be dead, and the mother (not having married again) acquire a new domicile, it is communicated to the infant.3 If both parents be dead, the power to change the domicile resides in the grandfather if living, and if not, in the grandmother, if she be alive.* The authority vests in one who is guardian bi/ nature. If a female infant marry, the domicile, on general principles of law, follows that of the husband.^ If the mother, having an infant child by a first husband, deceased, marries again, the domicile of the child continues during in- fancy to be the same as at its father's death.^ The same gen- eral principles prevail in the law of continental Europe.^ II. .Rights of child as such. — The consideration of this topic has for the most part been anticipated in treating of the duties of parents, since these are but another form of stating the rights of the child. There are a few other cases to be considered. (1) A child does not have at common law any right of action when a father is injured by the wrongful act of another. Under the statute for " injury causing death," an action may be brought by an administrator to recover for the benefit of the next of kin, among whom he may be included. He may also have a statutory remedy under the Civil Damage Act.^ (2) There are instances in which statutes confer benefits upon a child in that character. An instance is found in the copyright laws, under which it is provided that if an author having taken out a copyright for twenty-eight years dies before it is renewed, a renewal may be taken for the benefit of the widow or children.'^ So under the Homestead laws of a number of the States, the benefits of the 1 Somerville v. Somerville, 5 Ves. 750 ; ^ Dicey on Domicil, 104. Sharpe & Crispin, L. R. 1 P. & D. 611. « Cumner v. Milton, 3 Salk. 259 ; 2 Dicey on Domicil, 107. Lamar v. Micoii, 112 U. S. 470, 471 ; 3 Potinger v. Wightman, 3 Merivale, Brown u. Lynch, 2 Bradf. 214. 67 ; Johnstone v. Beattie, 10 CI. & F. 42, "^ 1 Burge's Colonial & Foreign Laws ; per Lord Campbell ; Ryall v. Kennedy, 40 Phillimore's International Law. See also N. Y. Super. Ct. 347; Lamar v. Micou, works on the "Conflict of Laws." 112 U. S. 452, 470. 8 jnfe, pp. 226 et scq. * Lamar v. Micou, 114 U. S. 218. 9 U. S. Kev. St. § 4954. 256 THE LAW OF PERSONS. Homestead act accrue to minor children by special mention in the statute.! Similar provisions are found as to setting apart in the settlement of an estate certain items for the benefit of a widow and minor children, 111. Duties of children towards parents. — It is not intended to consider in this connection moral obligations, but only legal duties, — such as are capable of enforcement in a court of justice. The principal duties of this sort are maintenance and protection. (1) Maintenance. It has been held that, at common law, a child having means is under no duty to support an indigent parent, but that such an obligation, so far as it exists, depends wholly on statute.2 (^^-^ ^x'he duty is, however, frequently enjoined in the poor laws, commencing in England with the statute of Elizabeth, already referred to when treating of the duties of parents.^ In that statute the duty to sustain grandparents was also prescribed, as it was in New York at one time.* The present law only men- tions parents,^ Accordingly, a tradesman cannot supply an indi- gent parent with necessaries, even though the child may have declined to support the parent, and sue the child on the theory of an implied contract.^ If, however, the goods were supplied at the child's request, he would be liable by reason of the request.' (6) (2) Protection. A child may lawfully aid or " maintain " his parent in litigation. So he can justify an assault and battery committed in the parent's defence, the latter being first assailed and resisting the attack when the child interfered.^ DIVISION 11. — Illegitimate Children. It is not easy to define legitimacy. The most general form of expression is that condition in which a child is whose paren- tage is fully recognized by law. It is sometimes stated that one who is " born out of wedlock " is illegitimate. This description does not suffice, for it is now well settled in a number of States that one may be legitimate who is born out of wedlock, — as, for example, by the subsequent intermarriage of his parents. This fact would not necessarily confer upon the person so legitimated the 1 The statutes are collected in 1 Wash- ^ Code of Crim. Pro. § 914. burn on Real Property (5th ed.) pp. 357- ^ Cook v. Bradley, 7 Conn. 57 ; 365. ' Lebanon v. Griffin, 45 N. H. 558. 2 Dawson v. Dawson, 12 Iowa, 512 ; '' Lebanon v. Griffin, supra. Edwards v. Davis, 16 Johns. 281. ^ Qbier v. Neal, 1 Houston (Del.), 3 Ante pp. 233 et seq. 449. * Ex parte Hunt, 5 Cow. 284. {a) Herendeen v. DeWitt, 49 Hun, 53. (b) Id. PAKENT AND CHILD. 257 right to be heir to lands in a State where subsequent intermarriage did not confer legitimacy. There are three cases in which the question of illegitimacy may arise : I. Where the mother is at the conception, as well as at the birth of the child, an unmarried woman; II. Where the mother, being a married woman, the husband is not the father, or deemed in law to be so ; III. Where the mother at the time of the child's birth is a widow. I. By the Roman law, when the parents were unmarried at the birth of a child, their subsequent intermarriage would make it legitimate. This rule did not prevail in the common law of England. The clergy of the Middle Ages favored this rule of the Roman law and desired to establish it in England by statute in the reign of Henry III.^ The earls and barons are said to have cried out with one voice that they were unwilling to change the law of England, as it had hitherto existed and been approved. There thus was as to this point a marked antagonism between the clergy and tlie secular courts. Bracton,^ writing in the reign of Henry III., says, " It is to be known that if any one has natural cliildren by any woman, and afterwards contracts matrimony with her, the children already born are legitimated by the subsequent marriage and are reckoned fit for all lawful acts, — neverthe- less^ only for those wdiich regard the sacred ministry^ but they are not legitimate for those which regard the realm, nor are they ad- judged to he heirs ivho can succeed to their relatives, on account of a custom of the realm which is of a contrary import.^' It has been a settled rule of the common law ever since his day that no one can inherit except one whom wedlock shows to be heir. Hceres est quern nuptice demonstrant. With these general re- marks we reach the subject of retroactive legitimacy. This expression is used to include the case where the parents of an illegitimate child subsequently intermarry, and the subse- quent marriage produces a retroactive effect and makes the child legitimate from its birth. This theory is derived from the civil or Roman law, and has been adopted in the countries of continental Europe and in Scot- land. The theories on which it proceeds may not be perfectly uniform. It is only proposed to give a cursory view of the ground on which the Roman law rests. That law assumed that there was an inchoate contract between the parties, which, when perfected by marriage, w^as drawn back to the period of the com- 1 Stat, of Merton, 20 Henry III. c. 9. ^ I Twiss' Bracton, 503. 17 258 THE LAW OF PERSONS. mencement of the contract, and that in this manner the child vns made legitimate. A fiction of law is resorted to, called the doctrine of "relation." Some important qualifications of the principle of retroactive ledtimacy are derived from this theory. One is, that when the child was conceived, the parties must have had the capacity to enter into a contract of marriage. They must be under no disa- bility to contract, and there must not be an immoral element in the transaction beyond the unlawful intercourse, such as that the man was a marriecl man. Moreover, there must not be an inter- mediate marriage with another party. It was in the view of the Roman jurists an incomplete contract followed up by a complete one, with the fiction that the subsequent complete contract was to be referred back to the date when the original incomplete contract was made.^ The doctrine of the common law was different. The status created by bastardy was indelible, except by act of Parliament. No repentant acts of the parties could make the intercourse law- ful from the beginning. The States of the American Union are quite divided in their policy upon this subject. Some of them adhere to the common law, — e. g., New York. Others, with more or less variations follow the Roman law, while adopting the general principle of retroactive legitimation. Difficult questions thus arise where interstate problems are pre- sented, depending upon the effect of the domicile of the father. It is conceded that the domicile of the father is in general the controlling fact in determining legitimacy. The difficulty is in the following cases : Where the domicile is in one State, and the birth of the child and perhaps the subsequent marriage in another ; or, where the putative father was domiciled in one country when the child was born, and in another when the mar- riage took place. So it is a question whether retroactive legiti- macy will affect the inheritance of real estate, when a different law prevails in the place where the land is situated from that of the domicile. Reference may be made to the following propositions as adjudicated. (1) The law of the domicile ought to prevail, even though the child was born and the parents intermarried in another country .^ 1 Merlin, Repertoire de Jurisprudence, tion as a matter of right and by imperial Art. Legitimation. In re Wright's Trust, rescript stated and applied to the law of 2 Kay & J. 595. The rules of the Ro- Malta. Gera r. Ciantar, L. R. 12 App. man law have recently been thoroughly Cas. 557 (1887). considered by the House of Lords, and the ^ Munro v. Munro, 7 CI. & F. 842. distinction between subsequent legitima- PARENT AND CHILD. 259 (2) If the father has changed his domicile between the time of the birth of the child and the marriage, the law of the domicile at birth may control.^ (a) (3) If a bastard child of an English father be born out of the Queen's dominions, being an alien at birth, the subsequent intermarriage of his parents will not make him a British subject.2 (4) The question as to the effect of a marriage following the law of the domicile upon real estate situated in another country has been viewed differently by high courts. There is a strong opposition between the theory of the English and of the New York courts. The question arose in England whether if a Scotchman owning land in England should marry the mother of his illegitimate child, the latter could inherit the father's land in England.3 Under the rules of the " comity of nations," the child was clearly legitimate.* The real question was, whether the child was an heir under English definitions of that word ; and it was held that he was not an " heir," for no one can be an " heir " unless born in lawful wedlock. As it is a settled rule that the right to inherit real estate depends upon the law of the place where the land is situated, it followed that he could not be an heir to English land. Accord- ingly, one might be a legitimate child, and yet not be an English heir.5 (Z») The New York court has refused to follow the Eng- lish cases, maintaining that an acquired legitimacy confers the capacity to inherit land everywhere, and that it is not necessary that one claiming an inheritance should be born in lawful wedlock.^ (e) 1 In re Wright's Trust, 2 Ka}' & J. 5 Birtwhistle v. Vardill, 2 CI. & F. 581 ; .^95. In this case, the domicile at birth s. c 7 Id. 895 and 9 Bligh, x. .s. 32. was English; at the time of marriage, 6 Miller r. Miller, 91 N. Y. 315. The French. Both systems of law were con- court seems to have been mistaken in its sidered by the court. opinion (p. 322) that the English rule was 2 Shedden u. Patrick, 1 Macq. App. Cas. derived from the Statute of Merton. In 535, 612. the so-called Statute of Merton the nobles 3 Birtwhistle v. Vardill, 7 CI. & F. rc/'wscr^ to change the then existing common ^9^- law. Consult Dicey on Domicil, 187-191. * Re Dorr's Estate, 27 L. J. Ch. 98, Smith v. Dorr's Adm, 34 Pa. St. 126, 100; s. c. 4 Drewry, 194; Skottowe v. and Lingen v. Lingen, 45 Ala. 410, are Young, L. R. 11 Eq. 474, 477. contra. (a) Cf. In re Grove, L. R. 40 Ch. D. 216. in England left to the " children " of his {b) This doctrine does not prevent a father, /n re Grey's Trusts [1892], 3 Ch. child born out of lawful wedlock in an- D. 88. other country, who has been legitimated (c) Stack v. Stack, 6 Dem. 280. See by the subsequent marriage of his parents also note to Simmons v. Bull, 56 Am. Dec. there, from taking a devise of real estate 261. 260 THE LAW OF PERSONS. II. Where the mother is married, hut the husband is not the father. — This is called by a leading writer on this subject an in- stance of " adulterine bastardy." ^ A rule of public policy now becomes potent and discourages an inquiry into the facts so as to bastardize the issue. It is not enough that an adulterer may have been the father ; the proof must be so strong as to establish the fact that he must have been the father. The rules of the ancient law were extremely strict in favor of legitimacy, as shown by a remarkable decision in the Year Book of 32-33 Edward I. (a. d. 1304), cited in a note.^ At one time, bastardy could not be established unless it ap- peared that the husband had been beyond the " four seas " (sur- rounding England). This rule has been exploded,^ and the real inquiry now is, whether the husband could have been the father. If the husband have access to the wife, the child will be legiti- mate, unless there be proof of impotency or other evidence equally convincing. There has been much confusion in the cases, owing to the fact that the word " access " has two significations ; one, the opportunity for sexual intercourse, — e. g. by their living in the same house, — and the other, sexual intercourse itself. Where there has been access of the latter sort it will be conclusively presumed that the husband was the father, even though it be established that an adulterer has also had like intercourse. But if " access " be used simply in the sense of an opportunity for sexual intercourse,. it may be shown by circumstantial evidence that it did not in fact occur, in which case the child might be declared illegitimate. In other words, the fact of sexual inter- course may be proved or disproved like any other fact. At the same time, if the opportunity as between husband and wife exists, the presumption of law is that it took place, and the evidence to 1 Sir Harris Nicolas, Treatise on the brought the assise, born only a month Law of Adulterine Bastardy, London, before he got to his inn ; wherefore they of 1836. the assise [jury] said clearly that she was ^ Year Books of the Eeign of King not next heir, because she was not his Edward I., translated by Alfred J. Hor- daughter, &c. : but notwithstanding that, wood, under direction of the Master of the — for the privacies of man and wife cannot Kolls (London, 1864). The reporter says be known, and he may have come into the (32 & 33 Edw. L p. 62), " I remember how country by night and have begotten her on once a damsel brought an assise of Mordan- his wife, — it was decided by the Justices cester on the death of her father, &c., and that she should recover." the tenant said that she was not the next ^ King v. Luffe, 8 East, 193, "until heir; the assise came and said that the the year 1717, ... a child born in wedlock father of her who brought the assise did, could not be bastardized unless the parties after he had married her mother, go beyond were separated by a sentence of divorce, by sea, and remain there for three years ; and evidence of the husband's impotency, or of that afterwards when he returned to his his absence from the realm when it was own country he found her, who then begotten." Nicolas' Treatise, 280. PATIENT AND CHILD. 261 the contrary offered to rebut the presumption must be strong, distinct, satisfactory, and convincing. This is the result of the famous Banbury Peerage Case in England.^ (a) In this country the distinctions taken in the English courts have not been definitely established. It has been held in Louis- iana that nothing can impugn the legitimacy of a child born during marriage, except proof that it was impossible for the husband to have been the father.^ Other courts state that the legal presumption can only be rebutted by evidence that shows " beyond all reasonable doubt " that the husband could not have been the father.'^ In other cases it is held that illegitimacy must be made clearly to appear.'* Others follow the course of the later English decisions.^ Neither the husband nor wife, on grounds of public policy, can be a witness to prove non-access.^ (ft) Nor will their declarations made out of court be sufficient to establish illegitimacy.'^ Illegitimacy may be proved by physical facts, such as that while the husband and wife are white persons the child is a mulatto.^ Where the parties live apart by the decree of the court, the presumption is against legitimacy, though proof may be offered to the contrary. III. Where the mother at the time of the child's birth is a widow. — The same general questions may arise under this head as under the last subdivision, with the additional inquiry whether too long a period has not elapsed since the husband's death to admit of the supposition of legitimacy. No particular time is ^ This case is reported in full in Nicolas' ^ Commonwealth v. Strieker, 1 Browne Treatise, in an Appendix. It was followed (Pa. ), Appendix 47 ; State v. Shumpert, in ]\Iorris v. Davies, 5 CI. & F. 163, where 1 S. C. 85 ; Wilson v. Babb, 18 Id. 59. the topic is discussed at great length. See ^ Tioga County v. So. Creek Township, also The Barony of Saye and Sele, 1 H. L. 75 Pa. St. 433. Cas. 507. Mr. Kicolas insists that this is "^ Dennison r. Page, 29 Pa. St. 420 ; a great departure from the common law, Bowles v. Bingham, 2 Munford (Va. ), while the court claims that it is a proper 442. deduction from the abandonment of the « Watkins v. Carlton, 10 Leigh (Va.), "rule of the four seas." 560. It has, however, been held that if 2 Vernon v. Vernon's Heirs, 6 La. Ann. the mother were an Indian it would not be 242. enough to prove illegitimacy to show that 3 Phillips u. Allen, 2 Allen, 453 ; Ste- the child was "colored," since the color gall V. Stegall's Adm. 2 Brock (U. S. Cir. would be presumptively attributed to its Court) 256, 264. Indian blood. Illinois L. & L. Co. v. * Dennison v. Page, 29 Pa. St. 420 ; Bonner, 75 111. 315. Cannon v. Cannon, 7 Humph. (Tenn.) 410. («) Burnaby v. Baillie, L. R. 42 Ch. D. Court of Sessions of Ontario County, 45 282 ; Bosvilev. Attorney-General, L. R. 12 Hun, 54 ; Watts v. Owens, 62 Wis. 512. P. D. 177. But see State y. McDowell, 101 N. C. (5) Burnaby i\ Baillie, snpra ; People v. 734. 2G2 THE LAW OF PERSONS. fixed by any rule of law (in the absence of a statute),^ and resort must be had to the testimony of experts in physiology. Approved works on Medical Jurisprudence may be consulted. There is a peculiar rule of the common law, to the effect that if the mother has married again so soon after the death of her husband that either husband might be the father, the child is more than ordinarily legitimate, and may choose his parent as between the two husbands. No case of that kind has found its way into the American reports. The legal rights and duties of the parents of illegitimate children. The principal duty of the father of an illegitimate child is that of support. He has no right in morals or in law to bring such a child into being and to cast the burden of his sup- port during infancy upon society. By an early English statute ^ two justices of the peace could in their discretion make orders both for the punishment of the mother and reputed father and for the relief of the parish where the child was born. They were authorized to charge the parents with the weekly payment of money or other sustentation. If the order was not obeyed, the parents were committed to jail, unless they put in sufhcient surety to obey the order of the justices or else to appear at the next general sessions of the peace to be held in the county and to abide the order there made. This is in its nature a criminal proceeding, and is followed in substance in this country.^ (a) These old statutes have been repealed in England and those referred to in the note ^ have taken their place. There is still a general resemblance to the old methods. Infancy is no defence to an action on the undertaking given as security by the putative or reputed father.^ The principal right of a parent of an illegitimate child is that of custody. The mother is entitled to the custody rather than the father.^ {b) If the putative father obtains possession of the child 1 By the New York Code of Criminal ^ Reference may be made in New York Procedure, § 838, a child is illegitimate if to the Code of Criminal Procedure, § 838, a husband is separated from the wife and and subsequent sections, where proceedings mother for a whole year previous to its in bastardy are detailed at length. birth. 4 7 & 8 Vict. c. 101 ; 8 & 9 Id. c. 10 ; 2 18 Eliz. c. 3. There was a number of 21 & 22 Id. c. 67; 35 & 36 Id. c. 65, § 2 ; English statutes on this general subject 36 & 37 Id. c. 9. down to about the time of the Americaa ^ The People v. Moores, 4 Den. 518. Pievolution. 6 Ex parte Knee, 1 Bos. & Pull. N. (n) See also in New York, 1 P.irdseye's 521. After the mother's death, the puta- Rev. Stats. 246. tive father is entitled, except under special (b) Barnardou. McHugh, 61 L. J. (Q. B. circumstances, to the child's custody. In D.) 721; Queen v. Nash, L. R. 10 Q. B. D. re Kerr, 24 L. R. (Ir.) 59. 454 ; Friesner v. Symonds, 46 N. J. Eq. PAKENT AXD CHILD. 263 by force or fraud, the court will order it to be restored to the mother.^ The court will issue a writ of habeas corpus to bring up the child on the mother's application, if it be within the age of nurture, and award it to her, unless sufficient reason be shown to the contrary .2 If the child have sufficient discretion to judge for itself, the court will not interfere." The father cannot shake off his liability for the suppoi't of the child by demanding the custody and meeting with a refusal.* Status of an illegitimate child. The status of an illegitimate child is summed up in the statement that he is in law the son of no one, — fllius 7iullius,filius populi,JiUus terrce. lie has no capacity to inherit land from his father, mother, or collateral relatives, nor to take personal property by succession from an intestate relative. He has no name by succession, but only that which he may ac- quire by reputation. For example, he would not be regarded as a " child " under a statute which permits a " child " to bring an action for injury to a father.^ Still, he might by reputation gain the name of " child " of one who had no legitimate children.^ So he may be legally described by referring to him in connection with his mother." The result of these rules is that he is not domiciled where his putative father is, but takes the domicile of his mother at the time of his birth.^ But if the mother be un- known, the domicile is where he is born. The domicile may be changed from time to time during infancy by the act of the mother.^ An illegitimate child, notwithstanding these artificial rules, is for some purposes recognized as having blood relatives. Thus, an illegitimate person cannot marry a blood relative of any nearer degree than a legitimate person.^^ Rules of jjublic policy as affecting such children. The law discourages the procreation of such children, hut at the same time countenances and permits provision to be made for them when once in existence. Accordingly, all contracts and grants made in view of illicit R. 148 ; Rex v. Soper, 5 Term R. 278 ; ^ Dickinson v. North Eastern Ry. Co., Bex V. Moseley, 5 East, 224 n. ; People v. 2 H. .& C. 735. Landt, 2 Johns. 375 ; Carpenter v. Whit- ^ Wilkinson v. Adam, 1 Yes. & B. 422. man, 15 Id. 208 ; Matter of Doyle, Clarke's " Crook v. Hill, L. R. 3 Ch. Div. 773. Chanc. R. (N. Y.) 154 ; People v. Kling, ^ Dicey on Domicil, 5. 6 Barb. 366. a Id. 97. 1 Robalinaw. Armstroncf, 15Barb. 247. 1° Hains v. Jeffell, 1 Ld. Raymond, 2 Ilex V. Hopkins, 7 East, 579 ; Roba- 68 ; apjjroved of in People v. Lake, 110 Una V. Armstrong, 15 Barb. 247. N. Y. 61, where it was held tliat under the 3 In re Lloyd, 3 M. & G. 547. New York Penal Code, § 302, incest may * Carpenter v. Whitman, 15 Johns, be committed by a father with an iliegiti- 208. mate daughter. 264 THE LAW OF PEKSONS. relations, and all provisions made for such children as may come into existence by means of such relations, will be declared null and void, (a) An example is a future estate in land to vest in a prospective illegitimate child. ^ A similar provision in favor of one in existence and sufficiently described would be upheld. ^ So a court of equity will enforce a trust created by a father in favor of such a child.^ Still, it has been held that the ordinary conveyance termed a " covenant to stand seized," which has the consideration of duty and affection to uphold it as between a father and legitimate child, has no consideration to uphold it in a like conveyance to illegitimate offspring. The natural love and affection in the latter case is not equivalent in law to the same affection in the former case, supported as it is by legitimacy.^ It is well settled that if the reputed father promise to pay money to the mother in consideration that she will maintain the child, or relinquish its custody and management, and she act accordingly, the promise will be binding upon him.^ Where such an agreement purported to bind the father to support a child (nearly six years old) " until it was able to do for itself," it was held that it must be in writing in order to comply with the Statute of Frauds.^ The New York Court of Appeals further holds that the natural olligation arising out of the relation of the father to the child is a sufficient consideration for a contract on his part to pay for its support and maintenance.'^ Having once made the agreement, he continues to be bound by it until he renounces the child or other- wise notifies the persons so supporting and maintaining it that he will no longer be liable to them.^ Establishment of legitimacy hy a direct legal proceeding. By the common law, there is no mode of establishing legitimacy by a direct proceeding for that purpose. This is a serious defect, as it leaves the matter of determining one of the most important relations of life subject to distressing uncertainty, and that, fre- quently, for many years. This defect has been to some extent remedied in England by the legislation referred to in the note.^ 1 Crook V. Hill, L. R. 3 Cli. Div. 773. Roche, 6 C. B. (n. s.) 223 ; Todd v. 2 Id. Weber, 95 N. Y. 181, and cases cited. 8 William.son v. Codrington, 1 Ves. Sr. ^ Farrington v. Donohoe, 1 Ir. R. C. 511 ; Knye v. Moore, 1 Sim. & Stuart, 61. L.) 675. * Fursaker i;, Robin.son, Precedents in ^ Todd v. Weber, supra. Chan. 475 ; s. c. Gilbert, Eq. R. 139. But 8 Todd v. Weber, supra ; Cameron v. see Todd v. Weber, 95 N. Y. 181. Baker, 1 C. & P. 268 ; Nichole v. Allen, 5 In re Plaskett, 30 L. J. (Ch.) 606 ; 3 C. & P. 36. Jennings v. Brown, 9 M. & W. 496 ; 9 21 & 22 Vict. c. 93. Any natural- Hicks V. Gregory, 8 C. B. 378 ; Smith v. born subject of the Queen, or any person (a) Thompson v. Thomas, 27 L. R. (Ir.) 457. PARENT AND CHILD. 26; Such legislation might well be copied in substance by the States of this country. Aynerican statutes modifying the rules of the common law as to illegitimacy. Statutes have been passed in some of the States which, while they recognize in general the disabilities of illegiti- macy, to some extent modify them. The statutes of New York provide that if an illegitimate person die without descendants, his estate shall descend to his mother, and if she be dead, to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate,^ and, further, that illegitimate chil- dren, in default of lawful issue, shall take by succession from their mother both real and personal property, as if they had been legitimate.^ (a) In some instances special statutes are enacted making a specified illegitimate person legitimate, while the gen- eral law remains unaffected. Such a law, if passed with the father's consent, would apparently be constitutional if vested rights were not affected, — as, for example, if an illegitimate son were legitimated before his father's death. The legitimate chil- dren could not legally complain because a prospective heir had been added to their number by legislative act.^ whose right to be deemed a natural-born subject depends wholly or in part on his legitimacy or on the validity of a marriage, being domiciled in England or Ireland, or claiming property situated in England, may apply by petition to the court of divorce praying for a decree that the petitioner is the legitimate child of his parents and that the marriage of his father and mother or of his grandfather and grandmother was a valid marriage. He is also allowed to ask for a decree that his own marriage is valid. Notice of the application must be given to the Attorney-General, who is deemed to be a respondent in the proceeding. The court has power to order such persons to be summoned to attend the proceedings as it may see fit. The decree is not binding upon persons not cited or made parties, though the representatives of persons cited are bound. An appeal lies to the House of Lords. See 22 & 23 Vict. c. 61, § 7. The court has no jurisdiction under this act to declare the petitioner to be the heir of another person. Mansel v. Atty-Gen'l., L. R. 2 P. D. 265. It may declare a mar- riage valid, where the woman had pre- viously gone through a ceremony of mar- riage with a man whose wife was living at the time. Shilson v. Atty-Gen'l., 22 W. R. 831. It cannot decide upon a claim to a title of honor, such as a baronetcy. Frederick v. Atty-Gen'l., L. R. 3 P. & D. 196. It may declare a foreign divorce to be void, and as a consequence a later mar- riage between the same parties to be in- valid. Shaw V. Atty-Gen'l., L. R. 2 P. & D. 156. 1 1 R. S. 753, § 14. 2 Laws of 1855, ch. 547, modifying 1 R. S. 754, § 19; Ferrie v. Pub. Adm., 3 Bradf. 249. 3 Beall i;. Bealls, 8 Ga. 210. In this case the father's consent was presumed from the circumstances of the case. One of the methods of legitimation in the Roman law was by "imperial rescript " at the solici- tation of the father. This usually occurred only when the father could not enter into marriage with the mother and there were no legitimate children. Mackeldey, Rom. Law,' § 599, {a) See Bunce v. Bunce, 27 Abb. N. C. 61. 266 THE LAW OF PERSONS. DIVISION III. — Adopted Children. The common law provides no mode whereby children can be legally adopted. Such modes are established by the Roman law and are sufficiently stated in Book I. of the Institutes of Justinian, title eleven. 1 There were two methods recognized in that sys- tem ; one by imperial rescript, and the other by judicial order. The former was resorted to when the person to be adopted was independent of paternal authority ; the latter when he was dependent, or under power (potestas~). In this last case the adopted person still remained under the power of his father, though he was entitled to share in the succession of his adopting father, if he died intestate. The ado{)tion of a person not being under the power of a parent was called " arrogation," which was always to be made under certain conditions showing the propriety of the act, while security must be given to a public agent that if the adoptee died within the age of puberty, the adopter would return the property received with him to the persons who would have been entitled to succeed to his estate in case no adoption had taken place. The adoptee was in most respects in the same position as if he had been a legitimate child of the adopter. The fiction of parentage was consistently carried out. The adopter must be older than tlie adoptee, as it would be " unnatural " for a son to be older than his father. He must even be eighteen years older, since tliat age was assumed to be the time at which he coidd have been father. A person might adopt a person as " grandson " without having had either a son or an adopted son, though the consent of the father of the proposed grandson would be requisite.^ Persons who were impotent could adopt, but not those who had been mutilated. Women could not adopt except to comfort them for the loss of children who had been taken from them. The leading principles of the Roman law of adoption have been borrowed in a number of the American States, New York being one of them. A brief sketch of the New York law is given below. 3 1 The translation by J. R. Moyle is very the adoption jf children in orphan asj^lums faithful and clear. Vol. II. p. 15 (Claren- and cliaritable institutions. See Laws of don Press, Oxford, 1883). 1884, ch. 438. - Mackeldey's Roman Law (Dropsie's Adoption is defined to be a legal act ed.), §§ 592, 594. whereby an adult person takes a minor 3 Laws of 1873, ch. 830, as amended by into the legal relation of child. The lead- Lnws of 1887, ch. 703 ; Laws of 1888, ch. ing rules are, — 48.;, and Laws of 1889, ch. 58, concerning I. Any minor child may be adopted by PARENT AND CHILD. 267 Adoption without legal authority creates simply a voluntary relation between the parties, which may be terminated at will. The adopting parent, while the relation continues, cannot demand payment for the child's support, nor can the latter make any claim for services.^ The transaction may assume, under special circumstances, such a form that the father of the child cannot even, without the aid of a statute, revoke the consent given to the adoption without legal reason. ^ any adult, except that neither husband nor wife can adopt without the other's consent unless they have been lawfully separated. II. The consent of the minor of over twelve years of age is necessary. III. The consent of the living parents or parent of a legitimate child, or of the mother of an illegitimate child, is neces- sary, except that if the father or mother be deprived of civil rights, or divorced for adultery or cruelty, or adjudged to be in- sane or an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, consent is not necessary, though in this class of eases con- sent should be given by the person having the child in lawful custody. There may also be such an abandonment by the parent as to forfeit all claim to the custody of the child, in which case also consent is not necpssiu-y. Laws of 1873, ch. 830, § 11, as amended by Laws of 1889, ch. 58. IV. The proposed adopter, the adoptee, and the persons whose consent is necessary, should, in order to give the transaction a legal character, appear before the county judge of the county where the adopter resides, and the requisite consents be signed, and a proper agreement executed. The appearance is dispensed with in case the parent is a non-resident. Laws of 1888, ch. 485. The judge is required to examine each person appearing before him, separately, and if satisfied that the " moral and tem- poral " interests of the child will be pro- moted by the adoption, he will make an order setting forth the reasons for it, and directing that the child shall thenceforth be regarded and treated as the child of the person adopting. v. The effect of an adoption must be regarded from two points of view, (1) as between the adopter and the adoptee ; (2) as between the child and its real parents. (1) The adoptee takes the name of the adopter. The two henceforth sustain the legal relation of parent and child, and have all the rights and are subject to all the duties of that relation, including the right of inheritance. The heirs and next of kin of an adopted child are the same as if he were the legitimate child of the adopter. To this general rule there is a single exception. This is that in the Ciise of futui'e interests in property arising under deeds, wills, and trusts dependent upon the adopter dying without heirs, the adoptee shall not be deemed to sustain the legal relation of child to the adopter, so as to defeat the rights of the " remainder man," the person who is to take the fu- ture estate \inder the circumstances above described. In like manner, in case of the death of the child, the adopter will, for the purpose of inheritance, sustain the re- lation of parent to it. Laws of 1887, ch. 703, amending the earlier statute. (2) The real parents of the adopted child are henceforward relieved from all parental duties, and have no rights over the child. VI. A child, once adopted, cannot be deprived of the rights thus obtained, ex- cept by the same sanction and consent required for the act of adoption, and all proceedings for such abrogation shall be in writing, signed by the county judge or justice of the Supremo Court, and recorded in the office of the county clerk. Laws of 1873, ch. 830, § 13. For other legislation upon this subject the statutes of the various States should be consulted. 1 Brown v. AVelsh's Ex'r, 27 N. J. Eq. 429 ; Ela v. Brand, 63 X. H. 14. 2 Janes v. Cleghorn, 54 Ga. 9. CHAPTER VII. GUARDIAN AND WARD. The title " guardian " is now appropriated to the case of one who has legal charge of an infant or a minor. The term fre- quently includes the parents, but is more specifically used to designate one who acts in the place of a parent, and who is either designated by him, or appointed by a court, or recognized as such by some rule of law. The relation of guardian and ward was recognized and well defined in the Roman law. Its rules are instructive, and are stated in a preliminary section. Section I. Rules of Roman Law as to Gfuardiatiship. — The Roman law distinguished between two classes of persons in- trusted with the care of others who were not able to take care of themselves: one, tutors, and the other, curators. Tutor- ship applied to immature persons, such as boys under four- teen years of age, and girls under twelve. Curatorship extended to all other persons who, for special reasons, needed care, — such as idiots, the insane, the deaf, dumb, and blind, and prodigals. Thus the tutor answered closely to our present guardian, while the curator corresponded with the " committee " or " conservator " of a lunatic or habitual drunkard of the present time. Our present concern is with the " tutor " or guardian, and the topics to 1)6 referred to may be arranged under the following heads : I. His appointment ; II. The general character of his duties ; and, III. His accountability. I. His appointment. — A tutor could be appointed by the will of a parent in the same manner as a father can now create a testamentary guardian. The appointment could be made to in- clude children born after the execution of the will (called pos- tumi). An imperfect appointment of this kind could in some cases be confirmed by the proper magistrate, though this would after all appear to be a case of public appointment. A tutor could be appointed conditionally, or for a specified time, or for a specific purpose, — such as to aid his ward in contracting a marriage, or in carrying forward a particular law suit. The GUARDIAN AND WARD. 269 later jurists thought that such a special appointment was inele- yans or in "bad form," and inclined to the opinion that the appointment must be general. Statutes commencing as early as the Twelve Tables gave the power of appointment to magis- trates or other public officers. II. The general character of his duties. — A ward could do some acts without the guardian's consent, as where the act would im- prove his condition, but not where it would make it worse. In other words, the ward could acquire rights, but could not incur liabilities. Accordingly, he could not, without the sanction of his guardian, enter into bilateral contracts, nor undertake the performance of a trust. Assuming that the sanction of the guar- dian was necessary, it should be made to accompany the ward's act, and not be a subsequent ratification. The guardian, hav- ing thus important powers, was required to give security, to be approved by the proper authority, for the performance of his duties. The magistrate, if of inferior rank, was made person- ally liable if he allowed him to act without sufficient security. This rule was not extended to testamentary guardians, as the confidence which the testator had reposed in them was considered a sufficient guarantee of their capacity and fidelity. It is interesting to trace in the law the progress of ideas in regard to this relation. It was at first deemed rather the rijld of a particular person to be a guardian. Finally, it came to be regarded as a trusty and a public duty or office, which one appointed to was bound to accept, unless exempted in the same general way as certain classes of persons were exempted from holding, office. It was a branch of this notion of trust that the guardian could not represent the ward in any conflict of interest between them, but a special person should be appointed in such a case to act for the ward. III. His accountahilltif. — Accountability to the ward was rigidly exacted. The guardian could be made to render an account before the proper magistrate. If it appeared that he had wilfully wasted the assets, he could be punished criminally. His act in that case was infamous. It was not so if he had acted negligently. The guardian could be removed on "suspicion" even before he commenced his administration. Waut of faithfulness to his trust was a sufficient ground, even though he were perfectly solvent, or offered to give security. No guardian could be removed simply because he was poor, provided that he was faithful and diligent. It was a sufficient charge to show that, having means, he did not provide the ward with a sufficient 270 THE LAW OF PERSONS. maintenance. In fact, as a usual rule, he performed his duty Avhen he paid over the income of the property he had in charge to the immediate friends of the ward. His misconduct in the main was that of a defaulting trustee. An accusation against him was open to any one, even to the female relatives, who might strive to save a youth from suffering harm " without seem- ing to be more forward than becomes their sex." Section II. The different Kinds of Cruardians in English and American Law. — Guardians are of various sorts ; they may be classified under two general heads: first, those created by a mere rule of law; second, those appointed by some lawful authority. Those of the first class are : (1) guardians by nature ; (2) by nurture; (3) in socage; (4) by estoppel. Those of the second class are: (1) testamentary guardians; (2) guardians appointed by the court of chancery ; (3) probate or surrogate's guardians ; (4) guardians ad litem and special guardians. Guardians created hy law. — (1) Guardianship hy tiature is an- other expression for the authority of the father. He has the care of the child's person, but not necessarily of his estate. This guardianship at common law was confined to the heir apparent. (2) Guardianship by nurture extended to the other children, but did not last beyond the age of fourteen. The mother would be entitled to this form of guardianship in case of the father's death. It was also confined to the person, and did not include the child's estate. There is no basis for drawing these distinctions in this country, since all the children are equally "heirs apparent." (3) The phrase in socage is a technical expression, referring to one of the principal tenures of land under the feudal system in England. While that system prevailed, land was held in Eng- land from some superior lord under two principal tenures; one was military, called " knight service ; " the other was non-mili- tary, requiring fixed and certain services, called "socage." The former was highly favorable to the guardian, and very burden- some to the ward ; the other was designed for the benefit of the ward, and the guardian corresponded to our modern notion of a trustee. The former continued until the ward was twent}"- one years of age; the latter, until he was fourteen. At the time of the English rebellion nearly two thirds of the land was held under the military tenures. These became extremely unpopular as being oppressive and unjust, and were abolished in 1660, at the time of the restoration of Charles II. (12 Car. II. c. 24, 1660), and all land then subject to military tenures was thenceforth held in free and common socage. From this time GUARDIAN AND WARD. 271 forward, guardianship ceased to bo a method of transferring the rents and profits of hand to the pocket of the guardian for his own use, and became a trust enforceable like other trusts in the Court of Chancery. The leading rules governing guardianship in socage are these : — 1. It must be committed to a relative who can by no possi- bility inherit the land under guardianship in case of the ward's death. This rule is founded on the supposition that a relative who could inherit might be induced to take the ward's life. The old proverb was, " One must not commit the lamb to the wolf to be devoured." The courts formerly held that the rule was based on sound policy and humanity. The modern view is that it is the product of unnecessary suspicion and of too low a view of the motives of the average man. ^ It could not well exist in a country like ours, where all of one's blood relatives may by possibility inherit, and it has accordingly been discarded. 2. This guardianship only exists when the ward has real estate. Still, if he also has personal property, that will be included, (a) 3. It regularly continues until the ward is fourteen, when he may call the guardian to account. Still, if no other guardian be appointed, it may tacitly continue until the ward is twenty- one. ^ 4. It is a personal trust, and cannot be assigned by the guar- dian to another. In New York this form of guardianship is regulated by stat- ute.'^ This statutory guardianship is more extensive than at common law, that being confined to lands acquired by descent. At common law, as applied to our rules of inheritance, a father could not be guardian in socage to his child, as he may inherit from him;^ under the statutes he may be.^ He may lease the land to a tenant so long as he continues guardian, the lease 1 Dormer's Case, 2 P. Wms. 262. same degree of consaiiguiTiity, males are - Byrne v. Van Hoesen, 5 Johns. 66 ; preferred to females. The powers of such Emerson v. Spicer, 46 N. Y. 594, 596 ; a guardian are superseded by the appoint-' Jackson v. Combs, 7 Cow. 36. ment of a testamentary guardian or of a ^ The guardianship vests by a rule of general guardian by the proper court. the statute, (1) in the father ; (2) if there 1 R. S. 718, 719. be no father, in the mother ; (.3) in default * Jackson v. Combs, 7 Cow. 36. of a parent, in his nearest and eldest rela- 5 Fonda v. Van Home, 15 Wend. 631, tive of full age, not being under legal inca- 633. pacity. Where several relatives are of the (a) Cf. Foley v. Mut. Life Ins. Co., 64 Han, 63. 272 THE LAW OF TERSONS. being defeasible on the appointment of another guardian and his election to avoid it.^ The powers of the guardian are also pointed out in the statutes. ^ (4) The meaning of the expression guardiansJdp hy esto'p'pel is, that a person who is not a guardian may so interfere with the estate of an infant as to be prevented from denying that he is a guardian. He sustains the liabilities of a guardian without being a guardian in truth. The object of this rule is to give the infant the same remedies against such a person as he would have against a guardian. He can accordingly be re- garded as having acted in a fiduciary character. Still, he may be treated by the infant as a mere wrong-doer, so that the result is that the infant has an election to treat him as a guardian or as a wrong-doer. 3 If several persons jointly take the profits of the infant's land without authority, the accounting should be had against them as if they had been joint guardians."* Guardians appointed. — (1) Testameyitary guardians did not exist at common law, but originated in the English statute before referred to.^ It grew out of the abolition of the mili- tary tenures. The lands having been converted into socage tenure, minors came to have power to control their estates at the age of fourteen. As too much liberty was thought likely to be injurious, it was deemed wise to limit their power by authorizing fathers to appoint guardians by will or instruments of that nature. The Court of Chancery does not appear to have exer- cised the power of appointment of guardians until 1696. Since that time its jurisdiction has been constantly resorted to, while the testamentary guardianship also exists, at least in some of our States. The substance of the English statute is, that a father, whether of full age or a minor, may by deed or will dispose of the custody of his children during their minority or for a shorter period to any person either " in possession or remainder, " ^ and that this guardian shall be entitled to take the rents and profits of the ward's land for the latter's benefit while the guardian- ship continues, and also to have the custody and management of his personal estate. These words of the statute permit the father, in case he appoints 1 Emerson v. Spicer, 46 N. Y. 594. 5 12 Car. II. c. 24, §§ 8, 9. This 2 See in New York, 2 R. S. 1.^3, §§ 3 statute was drawn by Lord Cliief Justice and 20. Hale. See Eyre v. Shaftsbury, 2 P. 3 Van Epps v. Van Deusen, 4 Paige, Wms. 102, 125. 64; Sherman v. Ballou, 8 Cow. 304; ^ The expression "remainder " means, Blomfield v. Eyre, 8 Beav. 250 ; Boddy v. " to commence at his death or at a later Lefevre, 1 Hare, 602 n., and cases cited. day." 4 Wyllie V. Ellice, 6 Hare, 505. GUARDIAN AND WAKD. 273 two or more guardians, to authorize a survivor to appoint another in place of one deceased. ^ The statute does not include illegiti- mate children. 2 The mother of such a child has no power to act under the statute.^ The power of this kind of guardian is that of a guardian in socage. He is entitled to the custody of his ward, even as against the mother (subject to the discretion of the court),* and may resort to a writ of habeas corpus to obtain possession of the ward's person in the same general way as a father may.^(a) A testamentary guardian is not regularly required to give security, the rule being that "he whom the father has trusted may be trusted by the court. "^ Where there are suspicious circumstances, security will be required, and modern decisions in England have placed them nearly on a footing with other guardians.'^ The court does not remove a testamentary guardian without cause. ^ The English statute of 12 Car. II. is substantially re-enacted in New York. The power would not exist without a statute. The statute is intended solely for wills or deeds of residents, and is strictly locaL^ The further provision is made that if the father be dead, having made no appointment, the mother may constitute a testamentary guardian, ^^ and, if she survive her husband for one year, may displace by deed or will a testamentary guardian appointed by him.^i A law of 1862 required the assent of the mother to a valid appointment by the father. ^^ This rule has not been expressly repealed, though it has been held to be repealed by implica- tion by the law of 1871, referred to in the note.^^ A married woman has no power by deed or will to appoint her husband testamentary guardian of her children.^* The Code of Civil Procedure provides detailed regulations for recording these appointments, — the "qualifications " of such a guardian, the special cases where security will be required for an 1 In the Goods of Pamell, L. R. 2 P. ^ Beaufort v. Berty, 1 P. Wms. 702 ; & D. 379. Dillon v. Mount Cashel, 4 Bro. P. C. 306. 2 Sleeman v. Wilson, L. R. 13 Eq. 36. ^ Wuesthoff v. Germania Life Ins. Co., 3 Ex parte Glover, 4 Dowl. Pr. Cas. 107 N. Y. 580. 291. 10 Laws of 1871, ch. 32. 4 Talbot V. Shrewsbury, 4 M. & C. " Laws of 18S8, ch. 454. 672. 12 Laws of 1862, ch. 172, § 6. 6 In re Andrews, L. R. 8 Q. B. 153; Rex 13 Thomson v. Thomson, 55 How. Pr, V. Isley, 5 A. & E. 441. 494. 6 Child V. Child, Finch, 360. '4 Beardsley v. Hotchkiss, 96 N. Y. 201, 7 Blake v. Blake, 2 Sch. & Lef. 26. 215. (a) See People v. Walts, 122 N. Y. 238. IS 274 THE L\W OF PERSONS. inventory of assets, for the judicial settlement of his accounts, his removal from office, his resignation, and the appointment of a successor.^ A grandfather cannot appoint a guardian to his grandchild. Accordingly, if he direct in his will that the rents and profits of land be applied by his executors to the education of his grand- child during his minority, the executors and not the guardian appointed by the court are entitled to apply the rents and profits according to the will.- (-) General guardians appointed by the Court of Chancery con- stitute a second class of guardians by appointment. The Court of Chancery, in England, exercises this power on an assumed delegation of authority from the king as parens patrice. There are several matters deemed to be under the care and superinten- dency of the king, — such as charities and the custody of idiots, lunatics, and infants. The king is supposed, under this doc- trine, to have the care of all such persons as are not able to care for themselves.^ This authority of the court over infants must be considered to have existed from its origin. Though taken away for a time by the statute which created the Court of Wards and Liveries, yet when that court was abolished, in 1G60, the authority returned, though its exercise was for a time dormant. A court of equity in this country would have the same power as the Court of Chancery in England. In a number of the States the jurisdiction in law and equity is in the same court. This, in New York, is the Supreme Court. There are two classes of cases needing distinct consideration: one is where the infant is under fourteen ; and the other, where he is fourteen and upwards.'* In the first class of cases the jurisdiction of the court is broad and practically unlimited. The relatives have no control. They attend on an application for an appointment merely to give the court information of the fitness of a pei'son to be selected by itself and to protect the infant's interests.^ The court in mak- ing an appointment will consider the welfare of the child, his 1 Code of Civ. Pro. §§ ■JS51-2S60, both the origin of the jurisvlietion of the court inchisiye. as unsatisfactor)', and deems it as an - FuUerton v. Jackson, 5 Johns. Ch. usurpation which was generally acquiesced 278 ; Hoyt v. Hilton, '2 FaIw. Ch. 202. in from the necessity of the case, the * Cary v. Rertie, 2 Vern. 333 ; Eyre first authentic instance of appointment V. Shaftsbury, 2 P. Wms. 102, 119 ; Butler being in Hampden's Case, in 1696. r. Freeman, Ambler's R. 301 ; per Lord * See, for the mode of appointment and Hakdwicke. Mr. Hargrave in a note to other matters. Rules f>2, 53, 54, and 59 of Coke upon Littleton, SSb, regards the the Supreme Court of New York, explanation giyen in the law books as to ^ Umjeji^jii |,^ Dennis, 9 Paige, 202. GUAKDIAN AND WARD. 275 attachments and mode of education, the wishes of deceased parents, the probability that another appointment will soon be necessary, and other matters of the same kind, which would naturally influence a sound judgment.^ It is common to appoint relatives when they are suitable persons. The court is not limited by the technical rules prevailing in the case of guar- dianship in socage.^ When the infant is fourteen and upwards, the court will be largely guided by his wishes. Its function, in general, is to give judicial sanction to his action. ^ So he may apply at this time for the removal of a guardian previously appointed, and the substitution of one chosen by himself. The court, however, may, in its discretion, deny his application.* Before an appointment is made, an inquiry should be had as to the amount of the infant's property, and the guardian be required to give bonds for the faithful performance of his duties. The amount of the security will depend upon the value of the estate. The rules of the court will, in general, fix the amount.^ Where the security first taken turns out to be insufficient, an additional amount may be required.*' The guardian may be removed on good grounds, such as unfitness, insolvency, fixed habits of intemperance, etc.'^ An appointment may also be revoked where the court has acted improvidcntly in making it. (3) Probate or surrogate's guardians are the third class of guardians existing by appointment. The ecclesiastical court in England (to which the surrogate or probate court in this country corresponds) had no power to appoint a guardian, except a guardian to conduct a litigation {ad litem). "The guardian appointed by the spiritual court was nothing at all, for they appoint anybody guardian in that court for the mere purpose of appearing. "8 The power of the surrogate, etc., to appoint a general guardian, is accordingly statutory. If the judge does not follow the statute, his errors will be corrected on appeal. The surrogate is a county officer, and has jurisdiction only in his own county, while the jurisdiction of the Court of Chancery 1 Bennett v. Byrne, 2 Barb. Cli. 216. nent barristers. Hargrave's note to Coke 2 Morehouse V. Cooke, Hopkins 11. 226. upon Littleton, 88 b. ' This may flow from an idea, at one * Matter of Nicoll, 1 Johns. Ch. 25 ; time prevailing, that an infant might ap- Matter of D3'er, 5 Paige, 534. point his guardian by deed executed by ^ Bennett v. Byrne, 2 Barb. Ch. 216. himself. The last Lord Baltimore, who 6 Monell v. Monell, 5 Johns. Ch. 283. died in 1771, when eighteen appointed by ~' Kettletas v. Gardner, 1 Paige, 488. deed a guardian of iiis proprietary interests ^ Kex v. Delaval, 3 Burr. 1434, 1436 in Maryland under the advice of two emi- (6th par.). 276 THE LA.W OF PERSONS. in England is general, and that of the corresponding court here, extends throughout the State. In complicated cases the equi- table jurisdiction is the more satisfactory of the two.i The general mode of proceeding is substantially the same as in the case of a chancery guardian. An ancillary guardian is provided for by the statute of New York, when the infant, resid- ing out of the State, has property within the State. A con- venient method is thus provided whereby a guardian appointed elsewhere can act within the State. ^ The surrogate or probate guardian is under the general super- intendence of the court of equity (in New York the Supreme Court), and he may be removed by the latter court for good cause. ^ An appeal lies also from the decision of the surrogate's court refusing to make an appointment,^ as well as from his order making an appointment.^ (4) G-uardians ad litem and special guardians may be ap- pointed by any court having jurisdiction over infants, as each court has, as incidental to such jurisdiction, power by the ap- pointment of a guardian to protect the infant's interest pending a litigation. This is true even of a court of inferior grade, such as that of a justice of the peace. ^ Such a person is termed a guardian ad litem. He may be the general guardian, or some officer of the court qualified to protect the ward's interests. He cannot act without an appointment, even though he be a general guardian. The mode of appointment is either regulated by statute or by a rule of court. ^ (a) A special guardian has substantially the same functions as a guardian ad litem, and the words are frequently used without discrimination. The phrase "special guardian" is sometimes employed where there is no litigation, or no interest adverse to that of the infant, as where there is an application pending in court for the sale of his land.^ His character in this case is entirely distinct from that of a general guardian, so that if he should be guilty of breach of trust in his special char- 1 The jurisdiction of the surrogate's * Kellinger v. Roe, 7 Paige, 362. court in New York is found in the Code ^ Underhill v. Dennis, 9 Id. 202. of Civil Procedure, § 2472, and the mode 6 Mockey v. Grey, 2 Johns. 192. of appointment, etc., in §§ 2821-2850, ' Rules 50 and 51 of the Supreme Court both inclusive. of New York. 2 Code of Civ. Pro. §§ 2838-2841. 8 Rules 55 and 57 of the Supreme Court 3 Ex parte Crumb, 2 Johns. Ch. 439. of New York. (a) The omission to appoint a guardian an appointment may, in the discretion of ad litem for an infant plaintiff before the the court, be made nunc pro tunc. Rima bringing of the action, is not a jurisdic- v. Rossie Iron Works, 120 N. Y. 433. tional defect, but a mere irregularity, and GUAEDIAN AND WARD. 277 acter, his sureties on his bond as general guardian would not be liable.^ Section III. The Powers of Guardians. — There is an impor- tant distinction between the rights of a guardian over personal property and over real estate. As to the personal property, he has the ownership or title in trust for the infant. He may, for example, receive legacies and shares of an intestate's estate coming to the infant.^ He may sell to a purchaser in good faith, who will hold the goods, even though the guardian misappro- priate the proceeds.^ The infant's remedy is against the un- faithful guardian. With the real estate it is quite different. The guardian has only the right to lease it and receive the rents and profits during the regular continuance of the guardianship. The general rule was first established as to guardians in socage ; and testamentary and chancery guardians have the same power in this respect.^ {a) But no guardian has a power to sell the ward's land. There is no mode at common law by which that can be sold except through an act of the legislature, a so-called "private act,"^ or by general statute. Without that, the Court of Chancer}^ can make no valid order of sale. Such general statutes are to be found in the various States of the Union. The statute, however, is the measure of the court's authority, and if it is transcended, the excess will be void.^ There is an exception to this rule where the property directed to be sold is equitable in its nature, and the sale is for the infant's support and maintenance." Another exception is where the sale is made incidentally, for the purpose of enforcing the rights of other parties, as in the fore- closure of a mortgage or partition of lands. ^ The course of proceeding in New York is detailed in the Code of Civil Proce- dure,^ and the court rules. ^"^ 1 JIuir V. Wilson, Hopkins, R. 512 ; 5 Powers v. Bergen, 6 N. Y. 358. Clark V. Montgomery, 23 Barb. 464. The 6 B^ker v. Lorillard, 4 X. Y. 257 ; rules of the Supreme Court, already re- Rogers v. Dill, 6 Hill, 415. ferred to, should also be consulted. t Pitcher v. Carter, 4 Sandf. Ch. 1; 2 Genet v. Tallmadge, 1 Johns. Ch. 3. Wood v. Mather, 38 Barb. 473. ^ Field V. Schieffelin, 7 Johns. Ch. 150. 8 Adams on Equity, 284, and cases * A general guardian also has power to cited. authorize an action for the recovery of an » §§ 2348-2364. infant's land, and to provide for the com- l" Rules of the Supreme Court, 55-59. pensation of counsel. Matter of Hynes, 105 X. Y. 560. {a) In New York a general guardian to bought in the pi-operty at the sale as gen- whoni, as such, a mortgage has been as- eral guardian, he may sell it without leave signed, may bring an action of foreclosure of the court. Bayer v. Phillips, 17 Abb. without joining the infant ; and having N. C. 425. 278 THE LAW OF PEKSONS. The substance of this legislation is that the land may, by judicial order, be conveyed, mortgaged, or leased either to pay debts or for the infant's maintenance or necessary education, or because the property is unproductive, or for the purpose of raising funds to preserve and improve it, or where there is other special reason for sale, or for the purpose of fulfilling a contract or enforcing a trust. ^ The application is made by a guardian or some relative or friend, and if the infant is fourteen and upwards, he joins in the petition. Where the application is made to pay debts or for the infant's supposed benefit, the particulars and value of the property must be stated in the petition, the amount of its income as well as the disposition that has been made of the personal property, and the amount of the debts. The court must appoint a special guardian, who files a specified bond.^ The matter is then referred to a referee appointed by the court, who examines into the truth of the state- ments in the petition in a specified manner, and reports and files his report. Then the court makes a final order, directing the land to be sold, mortgaged, or leased, as the case may be, by the special guardian. In negotiating the sale, etc., the special guardian makes, in the first instance, a preliminary agreement, subject to the approval of the court. If that is obtained, a con- veyance, etc., is executed, except that if the case is one where the proper course is to direct a conveyance in the first instance, the guardian must report the conveyance on oath. The proceeds of the sale, though in form money, are deemed in law to be real estate, so that the infant will have no greater power over them than if they were in fact land. This statutory rule proceeds upon the equitable theory of " reconversion. " All that is not needed for the special purposes for which the land is sold is assumed by a fiction of law to be converted back into land. The infant, owing to his disability, is not allowed to elect to take the proceeds of the sale as an adult might do.^ They are to be invested in the same manner as trust moneys for his benefit, so far as they are not needed to pay his debts or for his support or that of his family. The kind of investment must be reported to the court upon oath. There are also provisions for the disposition of future estates, as well as those of a tem- porary nature. There is a very important restriction upon the power of the court to order a sale, to the effect that no order of sale, lease, 1 §§ 2345, 2346, and 2348. Reconversion, Chaps. IX. & X. (9th ed.) ^ §§ 2351 and 2352. This woik is a reproduction of the lectures ' See Snail's Ec^uity, Conversion and of a distinguished jurist, Mr. Birkbeck. GUARDIAN AND WARD. 279 or mortgage can be made contrary to the provisions of a will by which it was devised, or of a conveyance or other instrument by which it was transferred to the infant. If such an order were made, it would be void, and the purchaser would obtain no title. 1 It is a general remark that as the jurisdiction of the court is statutory, it must be strictly followed. ^ It should be observed that the present statute requires that certain things " must " be done. It would appear that this language makes the acts pre- scribed vital. Accordingly, if the statutory direction be not complied with, a purchaser under the proceeding will obtain no title. 3 (a) In case a sale is desired that cannot be had under the authority of these sections, a private act of the legislature must be resorted to.'' The general power of the legislature to pass such statutes in the case of sales of land of infants, lunatics, and other incompetent persons has been frequently affirmed by the courts as a branch of the doctrine of parens patrice.^ It has been said to be a most necessary, useful, and beneficent power, which should by no means be fettered.'' It is the opinion of some jurists that a guardian has the same power to change the domicile of the ward as a parent. The point, however, is not definitely adjudicated, and the law is un- certain.'^ His authority in most respects is analogous to that of a father. He may, for example, direct the religious education of his ward in the same general manner.^ As a general rule the authority of a guardian is local, not extending beyond the jurisdiction of the country or of the State 1 Code of Civ. Pro. § 2-357 ; Rogers land made under sanction of Parliament, V. Dill, 6 Hill, 415; Muller v. Strupp- p. 877. Acts of this kind are still fre- nian, 6 Abb. N. C. 3-43. quently passed by the New York legisla- 2 Battell V. Torrey, 65 N. Y, 294; ture. An instance is Laws of 1874, eh. 73. Matterof Valentine, 72 Id. 184. s Rice v. Parkman, 16 Mass. 326; 3 Thus it is said in § 2349 that the in- Clarke v. Van Surlay, 15 Wend. 436 ; fant, if fourteen and upwards, wnts< join in Cochran v. Van Surlay, 20 Id. 365. the petition ; in § 2350, that the petition 6 Sohier v. Mass. General Hospital, 3 must be verified, and that it must set forth Cush. 483, 497. the grounds of the application, etc. "^ Dicey on Domicil, 100 ; Potinger v. * The subject of " Private Act," as it Wightnian, 3 Mer. 67 ; Douglas v. Doug- exists at common law, is well treated in las, L. R. 12 Eq. 617, 625 ; per Gray, J., Cruise's Digest, Greenleafs ed. VoL II. in Lamar i>. Micou, 112 11. S. 472. 873. It is in substance a conveyance of ^ Re Browne, 2 Ir. Ch. 151. (a) Even though the statutory require- was resorted to not for the benefit of the ments were complied with, and the iufent infant, but to cure a defect in the title, received a fair value for his interest, yet Weinstock v. Levison, 26 Abb. N. C. 244. the sale will be void where the proceeding - 280 THE LAW OF PERSONS. where he is appointed, though for some purposes he is recognized abroad. If the infant has property in another State, an appoint- ment must be made there to receive and manage it, though the same person may be appointed in both States. The presence of assets in a State is a sufficient basis for the appointment of a guardian there. Accordingly, a court in one State would not direct an executor to pay over a legacy to a person appointed guardian in another State of the Union. ^ (a) Guardianship over the person is governed by different consid- erations. Thus, the ward of a French guardian might be tem- porarily in one of our States. There would seem to be no good reason why the French guardianship should not be so far recog- nized as to permit the ward to be controlled as to his personal conduct, or to be withdrawn from the State to France by the guardian.'-^ The English court has refused to allow a New York guardian to withdraw from England the child of an English father and an American mother, but this action was. taken on the special ground that an English court would not send an English citizen abroad.^ However, a foreign guardian would not, it is pre- sumed, be allowed to exercise any more power over the ward than is permissible by our laws ; as, for example, personal chastise- ment, even though he did not exceed what was allowable by his own law.^ The result worked out in Nugent v. Vetzera, cited in the note, was, that while the court would leave the foreign guardian in full possession of the person of his ward, it would appoint English guardians over the property within the jurisdiction.^ Section IY. The Duties of Guardians. — The duties of a guar- dian may be summed up in the statement that as to the ward's property he must be regarded as a trustee, while as to his per- son, though not technically a trustee, his relations are of a con- fidential and fiduciary nature. It will be useful, in this connection, to advert to the doctrine of an infant becoming a "ward of the Court of Chancery." While under the rule of parens patrice all infants in the State or J Morrell v. Dickey, 1 Johns. Cli. 153 ; * Johnstone v. Beattie, 10 CI. & F. 42, McLoskey v. Raid, 4 Bradf. 334. 114. 2 Nugent V. Vetzera, L. R. 2 Eq. 704 ; ^ It is very difficult to reconcile this Di Savini v. Lousada, 18 W. R. 425. case with Johnstone v. Beattie, supra. 3 Dawson v. Jay, 3 De G. M. & G. 764, explained in Nugent y. Vetzera, supra, 713. (a) West V. Smither, 3 Dem. 386. As to ancillary letters of guardianship, sefc ante, p. 276. GUARDIAN AND WAliD. 281 country are under the care of the court, that care remains dor- mant unless it is in some appropriate manner called into exer- cise. The way in which the aid of the court is regularly invoked is by commencing a suit called "filing a bill. " This point is fully considered by a number of the judges in the case cited in the note.^ The mere act of "filing the bill" makes him a ward of the court. Then it becomes the direct duty of the court to provide for his care and protection. As it cannot do this personally, it appoints a guardian who is an officer of the court, for the purpose of doing that for the court which the court cannot do personally.^ He is subject to the order of the court much as a parent or testamentary guardian would be. In making the appointment, there is a preliminary inquiry into the facts by a master in chancery, who considers who are proper persons to be guardians, and as to what will be a proper main- tenance for the infant, and vv^hat scheme of education should be adopted. 3 The infant, as soon as the bill is filed, becomes a "ward of the court," whether guardians are appointed or not.* (a) One of the consequences of this doctrine is that the ward cannot be withdrawn from its jurisdiction without its leave, {h) nor can any person knowingly marry a female ward without leave, without being guilty of a contempt of court. ^ (c) The American cases and statutes use the same expression "ward of the court," but the severe rules of the English practice do not often seem to be followed as to the ward asking leave to go out of the jurisdiction. There are but few cases in this country in which it has been decided that the marriage of the ward, without leave, was a contempt of court. A case of this general character was decided in the New York court by Chan- cellor Kent.^((^) The specific duties of the guardian are in the main these: — (1) To make proper investments of the ward's funds. (2) To 1 Johnstone v. Beattie, 10 CI. & F. 42. to go there unless their guardian would '^ Id. p. 85. enter into an undertaking that they would y 8 Id. p, 86. return within a specified period, and would * Id. p. 91. not marry without leave of court. 10 CI. 5 Lord Campbell mentioned a case of & F. 128. Jeffreys v. Vantiswarts, where female in- 6 Aymar v. Ruff, 3 Johns. Ch. 49. fants, wards of court, having arrived at Reference is made in the report to Eyre v. years of discretion, and having property Countess of Shaftsbury, 2 P. Wms. Ill, and relatives in Dantzic, were not allowed 112. (a) See also Simpson, Law Relating to (c) See Bolton v. BoUon [1891], 3 Ch. Infants, Chap. XL § 7. 270 ; In re Leigh, L. R. 40 Ch. D^90. I) In re Callaghan, L. R. 28 Ch. D. {d) See Ex parte Martin, 2 Hill Eq. 186. (S. C.) 71. 232 THE LAW OF FEKSONS. account to a court of equity. (3) To take no position adverse to his ward's interests. (4) To properlv train him so as to make him a useful citizen. (1) It is a general rule that the property of the ward should be kept in a productive condition. If money is paid in to the guardian, it should be seasonably invested or he will be person- ally charged with the interest. In this respect he is subject to the rules usually applied to trustees. (2) The guardian may account to the court annually. Tlie object of this form of accounting appears to be to inform the court of the condition of the ward's affairs.^ So he may be called on by the ward to account. This may be done when the ward attains majority.^ "When a guardian is removed, it is a matter of course to call upon him to account and to pay over amounts on hand to his successor. ^ A court of equity has general jurisdiction over this subject, but statutes of course may authorize an accounting before a probate or other court, partic- ularly when the guardian is appointed there. This does not include, in Xew York, the representatives of a deceased guardian, who account in equity.* In making up an account, a guar- dian charges himself with what he has received, and credits himself with what he has properly paid out. In this he may ijiclude reasonable amounts paid for legal services. He is also entitled to commissions, which in some States are fixed by law, and in others are allowed by the court. ^ There are statute provisions in Xew York concerning the accounting of guardians appointed by the surrogate.^ These are construed by the Court of A{>peals in a recent case.' The accounting by the guardian is not conclusively binding until one year after the ward attains majority.^ The meaning of the word '"accounting" is techni- cal. It is a legal proceeding before a court. The exhibition of his accounts out of court by a guardian to a ward is not an accounting.^ If a guardian on an accounting is indebted to the ward, he is not to be regarded as a mere debtor, but rather as a defaulting trustee, and liable to proceeding's allowable as against such a pei*son. — e. (j., imprisonment.^'^ (3) The duty of the guardian not to act adversely to his » See Matter of Hawley. 104 X. Y. by law. Collier r. Munn, 41 X. Y. 143 : 250 : 1 Bl. Com. 4o'3. Morgan r. Hannas, 49 N. Y. 667. * Seaman r. Purrea, 11 N. Y. 3-24. « Code of Civ. Pro. §§ •2842-'2S50. 8 Skidniore r. Daries, 10 Paiee, 316. " Matter of Hawley, ':04 N. Y. 250. * Farnsworth r. Oliphant, 1 9 Barb. 30. § Matter of Van Home, 7 Paige, 46. * In New York the coinmis^ions are ' Rapalje r. Hall. 1 Sandf. Ch. 399. fixed by statute. Xo other charges for &-r- '^ Seaman c. Puryea, 10 Rarb. 523. vices can be made except those allowed GUARDIAN AND WAKD. 283 ward's interests is but a branch of a wider topic, embrac- ing all persons having trust obligations to discharge. There are, however, some special rules applicable to guardians. In dealings between trustees in general and their beneficiaries the court exacts the utmost fairness and good faith. This rule is applied in the case of guardians until time enough has elapsed for the ward to become emancipated from the guardian's influ- ence, notwithstanding the ward has reached his majority, and, theoretically speaking, the relation between the parties is at an end. Where undue advantage is taken by a guardian of his relation to the ward to obtain his property, either by deed or will, it may be regarded as a case of "undue influence," leading a court of equity to set the transaction aside in the same manner as transactions in general of the same kind between trustees and their beneficiaries.^ (4) It is the duty of a guardian to give a proper training to his ward. This means, in some instances, training in habits of industry. He ought not to leave his ward in idleness when he is capable of earning his own living. 2 He should, in general, where he has charge of the ward's person, be regarded as stand- ing in the place of a father, and should give him such an intel- lectual training as his means and position in life would generally require, and at the same time attend to his moral and religious education, though this last remark should be qualified by the statement that regard should be had to the expressed wishes of a deceased parent in conducting his religious training. It may be added that guardianship may be committed to two or more persons, who are then termed joint guardians. They are governed by the general principles and rules applicable in the case where only one person is guardian. 1 See 1 Story on Eq. Jur. 324-327 (13th » Clark v. Clark, 8 Paige, 152. ed.) ; 3 Pomeroy on Eq. Jur. § 1088. CHAPTER VIII. INFANCY. The object of this chapter is to bring together certain topics in the law of infancy which do not involve the relation of parent and child, or that of guardian and ward. They are questions applicable to all infants as to their capacity to contract, to com- mit wrongs or crimes, or to submit to pecuniary burdens, to invoke the protection of the law, etc. These will be treated simply from the point of view that the person under considera- tion is an infant, and without any inquiry as to the existence of the parental relation or of guardianship. Section I. Infancy Considered as a Status. — The capacity of infants to do civil acts is for the most part fixed by positive law. The rule requiring a prescribed age to be reached is an arbitrary one, but at the same time based on mental ability and experience, as shown in average cases. No judicial in- quiry will be had upon the point whether the particular per- son in question was in fact of sufficient capacity to act at an earlier age. This arbitrary rule is a matter of status. The age fixed by different systems of law is not the same, nor is it always the same in a particular jurisdiction for all kinds of acts. The rule in the common law of England fixes the age of capacity to make most contracts at twenty-one. There is a marked exception in the case of marriage, where the age of a male is fixed at fourteen and a female at twelve. Capacity to commit a wrong or a crime is not governed by the rule appli- cable to contracts. The requisite age in these cases will be referred to hereafter. A person legally reaches in law the age of twenty-one the day before the twenty-first anniversary of his birth. This rule is based on the proposition that the law does not regard a fraction of a day. This is not an unvarying rule, since fractions of a day are for some purposes carefully distinguished, but it applies to INFANCY, 285 the present case.^ This rule seems to have been derived from the Roman law.^ Questions of the conflict of laws arise when an infant, being domiciled in one State, makes a contract, will, or other instru- ment in another, and the rule for capacity is different in the respective States. The case of most difficulty occurs in the law of contracts. One opinion is that capacity in such a case is to be determined by the law of the place where the contract is made. Thus, if a person, being domiciled in New York, where the age of capacity is twenty-one, is temporarily in Vermont, where the age is eighteen, a contract made at that age in the latter State will, on this theory, be binding on him, not only there, but in the New York courts.^ The capacity to make a will of personal property depends on the law of the testator's domicile, while that of a will of real estate or a conveyance of it is governed by the law of the place where the land is situated. An opposing view of much weight is that the capacity of an infant to enter into a contract is governed by the law of his domicile, and that if he had not sufficient capacity there, a con- tract made elsewhere, where he temporarily happened to be, would be void, even though the law of such State sustained his capacity.* It has been also decided that even if his capacity is governed by the law of the place where the contract is made, he cannot, while remaining in his domicile, authorize an agent in a State where he would have capacity, if he were himself there, to make a binding contract.^ 1 The principle seems to be that where Late cases in common law are Bardwell v. there are no conflicting rights, fractions of Purrington, 107 Mass. 419 ; Phelan v. a day should not be noticed ; if there is Douglass, 11 How. Pr. 193 ; see Metcalf such a conflict, then the smallest diff"er- on Contracts, 38. ences of time will be regarded to prevent 3 There is, however, but little decision injustice. Cases on this subject are col- to this effect. See Thompson v. Ketcham, lected in 23 Am. Law Register, n. s. 254- 8 Johns. 189. Male v. Roberts, 3 Esp. 259. 163, may be noted. Mr. Dicey expresses 2 " In the Roman law the computation some doubt as to the correctness of this oftime is by moments, orthere is civil com- decision. Dicey on Domicil, 177. putation. In the latter, regard is had to 4 Sottomayor v. De Barros, L. R. 3 P. the calendar day on which the event occurs D. 1, 5; and see Mette v. Mette, 1 Sw. & T. with which the computation of time com- 416 ; Remarks of Judges in the House of mences. This calendar day is wholly in- Lords in Cooper v. Cooper, L. R. 13 App. eluded in the time to be computed. So Gas. 88, pp. 99-108. that in the subsequent year in which it 5 Kohne's Estate, 1 Parson's Select Eq. expires the day preceding the correspond- Cases (Penn.), 399. One who has not ca- ing calendar day is regarded as the last, pacity to contract cannot, by making an Thus, a person born on January 1st, 1863, agreement to perform a contract in a place completes the fourteenth year of his life where he would have capacity, bind him- after midnight of Dec. 30, 1876." Mac- self. Cooper v. Cooper, L, R. 13 App. keldey's Roman Law (Dropsie's ed.), 163. Cas. pp. 99, 106, 108. 236 THE LAW OF PERSONS. Capacity to make a will of personal property depends on the law of the infant's domicile, while real estate can only be dis- posed of by will, if in accordance with the law of the place where it is situated. Section II. The Capacity of Infants to make Contracts. — I. General rule. — There has been much uncertainty of expres- sion, and even variety of opinion, in the decisions as to whether the contract of an infant is in general voidable or void. This is a highly important inquiry. If the contract be void., it is a mere nullity. It does not bind the opposite party, being an adult, though the infant desire to maintain it, and it is incapable of ratification by him. On the other hand, if voidable., it is bind- ing on the adult, if the infant so elect, and may, under circum- stances to be hereafter stated, be confirmed by him, so as to make it binding upon himself. The prevailing opinion now is, that nearly every contract made by an infant is voidable, rather than void. There may be a few exceptions, but these are not as yet very well defined. The rule that an infant's contract, except for necessaries, etc., is voidable, extends both to executed and executory contracts, — such as conveyances or purchases of land, leases, sales, and purchases of personal property, credits of all kinds, mortgages, contracts of ser- vice, partnerships, trading in general, etc. Each and all of these may in general be repudiated, and, under proper circumstances, may be confirmed. The effect of this principle cannot be avoided by any indirect methods.^ {a) It has often been attempted where an infant has committed a fraud in making a contract, or per- haps an act of negligence, to hold him liable on the ground that he has committed a tort or wrong, and that he is not excused from that. This, however, is but an indirect way of making him liable upon a contract. It is quite plain that if he had become an innkeeper, and then lost the goods of a guest through negli- gence, he would not be liable for the loss, since the negligence is but a mode of carrying out the business of keeping an inn, — a business which he cannot bind himself to carry on properly. So a fraud in making a contract is but an element in the contract ; and if he has no binding power to make the principal thing, it is difficult to see how he is bound by a specific act which forms a part of it.2 (5) One who sues for the fraud affirms that it was 1 An infant is not estopped by his de- 2 gee, on the general subject, Studwell clarations that he is of age. Sims v. v. Shapter, 54 N. Y. 249 ; Merriam v. Everhardt, 102 U. S. 300 ; Conrad v. Cuningham, 11 Cush. 40 ; Barley v. Rus- Lane, 26 Minn. 389. But see post, sell, 10 N. H. 184 ; Gilson v. Spear, 38 Vt. p. 287. 311. {a) Nash v. Jewett, 4 L. R. A. 561 ; (6) Stern v. Meikleham, 56 Hun, 475. Ladby V. Ileuncay, 37 N. Y. St. R. 612, INFANCY. 287 made in the course of a contract, when there is no contract. The logical position in such a case is for the other party to dis- affirm the contract, to insist that owing to the fraud there is no contract, and then reclaim from the infant what he has received under it. The authorities, however, are not in accord upon the subject. Reference is made to them in the note.^ There are cases in courts of equity which decide that if an in- fant in the course of making a contract affirms that he is of age, he shall be precluded from denying such affirmation to the preju- dice of the other party who relied upon his statement. These cases are anomalous and contrary to principle, and only to be followed because they are decided and have become precedents.^ The fallacy in these decisions is that they proceed upon the theory of an affirmance instead of a disaffirmance of the contract, and upon the ground that the court will not permit an infant " to take advantage of his own fraud " and will hold him to his representations.^ II. An infanfs capacity to contract for necessaries. — By the term " necessaries " is meant all that class of objects which are essential to the comfort, health, or training of the infant, as de- termined bv the courts. The items would embrace food, clothino-. shelter, medical treatment and medicine, and education. These are in a general way needed by all infants ; great variety in the kind and quality of these " necessaries " will be recognized by the courts, depending upon the social position of the infant, or on other special ground. It thus becomes requisite to ascertain in the trial of such a question the functions of a jury as distin- guished from those of the judge. The rule is that the classes of things necessary for an infant will be determined by the judge, while the question whether the particular person before the court needed the goods purchased by him is for the jury. The judge in discharging his duty may come to the conclusion that the goods are presumptively not necessaries. An example 1 Among those which favor the posi- contrary view are collected in Eckstein v. tion taken in the text areBartlett v. Wells, Frank, 1 Daly, 334. 1 B. & S. 836 ; Wright v. Leonard, 11 C. 2 gee Vaughan v. Vanderstegen, 2 B. N. s. 258 ; Price v. Hewett, 8 Exch. Drewry, 363, 379 ; Clarke v. Cobley, 2- 146; De Koo v. Foster, 12 C. B. n. s. Cox Eq. 173 ; Esron v. Kicholas, 1 DeG. 272. It is suggested in some of the cases & S. 118; Savage v Foster, 9 Mod. 35; that a court of equity would grant relief In re King, 3 De G. & J. 63. Jluch dis- in some instances ; but onlj' on the satisfaction was expressed with the rule in ground of the fraud, and not upon the this last case, by Lord Justice Turner. contract. See Bartlett v. Wells, sifpra ; lb., p. 69. Heath v. Mahouey, 7 Hun, 100; and ^ PoUocj^ on Contracts (1st Eng. ed.), Hewitt V. Warren, 10 Hun, 560, are to 56, and cases cited, the same effect. The cases holding the 2S8 THE LAW OF PERSONS. is a bill for cigars. So if goods belong to a class usually neces- sary, but are so costly and extravagant as to be beyond any ordinary range of expenditure, they will be presumptively not necessaries. The effect of such a view would be that the seller would be required to give affirmative evidence that they were in the particular instances necessary. If he did not do this, the case would not reach the jury, but would be dismissed.^ A few additional instances of goods presumptively not necessa- ries are given, — dinners to friends, confectionery ,2 ices, game, a chronometer, even for a lieutenant in the navy,^ betting-books,* a horse used as a hunter.^ Affirmative proof might make these or similar articles necessaries. Thus, the purchase of a horse, apparently not necessary, might be made so by proof that exer- cise on horseback was needful to the purchaser's health.^ In the same way, if the infant holds a place or post which usually re- quires a certain line of expenditure, he may be liable up to the usage. Thus an infant captain in the army might be liable for a livery for his servant, though not for cockades ordered for the soldiers of his company.'^ The same principle has been applied in England to the expenses of preparing a marriage settlement.^ (a) Moreover, goods may be necessary in point of style and qual- ity, and yet unnecessary in quantity. If four coats per annum were necessary, and the infant purchased ten, he would not be liable for the superfluous six. The tradesman is bound at his peril to ascertain whether he lias more than he needs,^ and it will be immaterial whether he has paid for those that he first acquired or not. It has, however, been held that the necessity for inquiry on the part of the tradesman may be dispensed with by the conduct of the parties.^*^ 1 Ryder v. Wombwell, L. E. 4 Excli. 2 Wharton v. Mackenzie, 5 Q. B. 606 ; 32, reversing L. R. 3 Exch. 90. Tiie Brook er v. Scott, 11 M. & W. 67. infant, a young man of wealth, pur- ^ BeroUes v. Ramsay, Holt, 77. chased on credit at a high price a pair of * Jenner v. Walker, 19 L. T. N. s. shirt-sleeve studs, composed of crystals 398. adorned with diamonds and rubies, and a ^ Skrine v. Gordon, 9 Ir. R. (C. L.) silver goblet for presentation to a friend. 479. No evidence having been offered to show ^ Hart v. Prater, 1 Jur. 623. why it was exceptionally necessary for the ' Hands v. Slaney, 8 Term R. 578. infant to have these articles, the appellate 8 Helps v. Clayton, 17 C. B. x. s. court held that the case should have been 553. See also Hill v. Arbon, 34 L. T. N. dismissed. This case has had much influ- s. 125. ence in other branches of the law in draw- ^ Mortara v. Hall, 6 Sim. 465; Bur- ing the line between the functions of the gliart v. Angerstein, 6 C. & P. 690. jury and of the judge. lo Dalton v. Gib, 5 Bing. N. C. 198. (a) An infant is liable for the amount Walter v. Everard [1891], 2 Q. B. 369 : of a premium which, as an apprentice, he De Francesco v. Barnum, L. R. 45 Ch. D. agreed to pay his master for instruction. 430. INFANCY. 289 No particular form of contracting is necessary. The infant may be bound on an implied contract and without express words.^ So he may become indirectly liable, — as, for example, to a person who at his request paid the creditor who supplied him with necessaries. Should he borrow money wherewith to buy necessa- ries and not use it for this purpose, he would not be liable to the lender ; but if he did so use it, the lender would be allowed by a court of equity to stand in the place of the seller and to collect an amount equal to the reasonable value of the necessaries pur- chased with the money lent.^ (a) Still, if he gave the lender a deed to secure his advances, the deed might not be sustained.^ The term " necessaries " includes the support of an infant's wife and children.^ The liability of the infant may turn upon the question to whom the tradesman (/ives credit. The infant may receive the goods, and yet the contract not be made with him. Thus, if the credit were expressly given to a stranger, no implica- tion would arise of liability on the infant's part.^ The law does not bind the infant to pay the price which the tradesman may set upon the goods, nor even the price which he may have agreed to pay. It is always an open question as to the real value of the goods supplied, on the infant's part, though the tradesman, being an adult, is bound by the price which he has fixed. It will not change the case though the iufant give his note or bond.^ (h) It is a question of capacity., and he has no capacity to make general contracts, but only to acquire the necessaries of life at their real value. If the contract be valid, the infant is bound in the same way as an adult. A judgment against him will not only bind his present but future acquisitions. It would seem to follow that he might be liable for a fraud in making such a contract, as he has the capacity to make the contract itself.'^ III. Ratification by an infant of voidable contracts. — Assuming that the contract of an infant is voidable and not void, the sulj- 1 Gay,i;. Ballon, 4 Wend. 403. •* Chappie v. Cooper, 13 M.&W. 252. 2 Marlow v. Pitfeild, 1 P. Wms. 558. ^ Dimcomb v. Tickridge, Aleyn, 94 ; 3 Martin v. Gale, L. R. 4 Ch. D. 428. Sinklear v. Emert, 18 111. 63 ; Ellicott v. The validity of the deed in such a case Peterson, 4 Md. 476. could not be placed upon the ground that ^ Johnson v. Boyfield, 1 "Ves. Jr. 314 ; it was for the benefit of the infant to have Clarke v. Cobley, 2 Cox Eq. 173 ; Martin the necessaries. In the case above cited v. Gale, L. R. 4 Ch. Div. 428. the decisions are criticised which seem to "^ It is not known that any case has de- maintain that a contract for the infant's cided this proposition, thougli it seems benefit is regularly binding on him. Mar- reasonable, tin V. Gale, siqjra, pp. 430, 431. la) Kilgore v. Rich, 83 Me. 305. {b) hi re Soltykofif [1891], 1 Q. B. 413. 19 290 THE LAW OF PEKSONS. ject of ratification becomes one of great consequence. If the contract is properly ratified, it will be binding on both parties. The only question open to discussion is, what will amount to a ratification. The clearest way of discussing this subject is, to treat the various cases which may arise, and which will admit to some extent of different considerations, separately. (1) Conveyances of real estate. — The law in this respect is quite strict. At the common law, there were two classes of convey- ances to be noted in this connection. One class assumed a judi- cial form, such as fines and recoveries. In this case, if an infant came into court and admitted that the title w^as in another, he was bound by the judgment entered against him accordingly, which could only be reversed by writ of error for error in fact. This could not be tried by the jury, but only by the court. The infant was obliged to appear in person to be tried by the inspec- tion of the judges. This could only be done during infancy. On the other hand, in the ordinary case where the conveyance was made out of court, the infant might enter upon the land in spite of his conveyance during infancy, but could bring no action to recover the land itself as his own until after he came of age. The reason of this was, that he had an election during the whole of his infancy to affirm or disaffirm the transaction. If he brought an action to disaffirm during infancy and was successful, the judgment would be binding upon him, and thus shorten the period of election which the law would otherwise give him.^ As fines and recoveries have disappeared from the law, an infant who has conveyed may now enter upon his land to receive the profits during minority, but can bring no action to divest the title until he is of age. Before bringing his action, he must do some proper act showing his disaffirmance of tlie conveyance, — such as mak- ing entry upon the land, giving notice, executing a deed to some other person, etc.^ {a) A conveyance to another would be proper when the first grantee is not in possession claiming title.^ One of the consequences of these principles is that mere inaction on the infant's part after he attains majority, is not evidence of ratification.* (5) Accordingly, his grantee would not under such 1 Per Lord Mansfield, in Zouch v. ^ Jackson v. Carpenter, 11 Johns. 539 ; Parsons, 3 Burr. 1794, 1808. Dawson v. Helmes, 30 Minn. 107. 2 Allen V. Allen, 2 Drury & Warren, « Irvine v. Irvine, 9 Wall. 617; Welch 107. There are many decisions to this v. Buuce, 83 Ind. 382 ; Thomas v. Pullis, effect in New York and other States, col- 56 Mo. 211 ; Huth v. Carondelet Marine lected in Bool v. Mix, 17 Wend. 119. Ry. Co., Id. 202. (a) See, however, Craig v. Van Bebber, (b) Hill v. Nelms, 86 Ala. 442. 100 Mo. 584. INFANCY. 291 circumstances obtain a perfect title until, say, twenty years after the infant reaches majority. The reasoning upon this point is, that the infant's cause of action is not finally fixed until majority, and then he has the period allowed by the statute of limitations in which to bring his actions, which is in most States twenty years,^ but in some much less, as in Nebraska.^ (a) This rule prevails in the English courts.^ Should the infant die during in- fancy, the right to disaffirm would be transmitted to his heirs. The same general rules apply to leases of land made by an infant.* In either of the cases discussed, he may after majority ratify the transaction by affirmative acts, — e. (/., by executing a confirmatory deed,^ or in case of a lease, by receiving rent after majority.® (2) Purchases and leases of real estate. — A new element is found in this case, for the infant has the benefit of the transac- tion, particularly if he is in possession. The enjoyment of the property is an implied ratification. The rule accordingly is, that he shall have a reasonable time in which to disaffirm. When that time elapses, ratification will be presumed." (3) Sales, mortgages, and purchases of personal property, and other contracts having in them the element of mutuality. — The technical rule prevailing in the law of real estate, that the infant cannot rescind until majority, is not followed in this class of cases. He may rescind during minority, as well as after he becomes of age.^ A great variety of cases arises where there are in a contract mutual engagements and stipulations entered into between infants and adults, in which the question of ratification might be presented owing to the acts of the infant after majority, or perhaps owing to mutual acts. If, for example, an infant after majority, should continue to receive benefits under a contract which was in the outset voidable by reason of his incapacity, it would seem that ratification should be presumed after the lapse of a reasonable time. It is the new and affirmative act which leads to the inference of ratification. This theory might be applied to a marriage settle- ment in which there were mutual promises as between the settlor 1 See cases stipra ; also Voorhies v. * Slator v. Brady, 14 Ir. C. L. 61 ; Voorhies, 24 Barb. 150 ; Urban v. Grimes, Slator v. Trimble, Id. 342. He cannot 2 Grant's Cases (Pa.), 96 ; Prout v. Wiley, avoid the lease until majority. 28 Mich. 164 ; Green v. Green, 69 N. Y. 6 gtory v. Johnson, 2 Y. Colly. 586. 553. 6 Smith v. Low, 1 Atk. 489. 2 O'Brien v. Gaslin, 20 TsTeb. 347. '' Hookr. Donaldson, 9 Lea, 56 ; Henry 3 Thomas v. Thomas, 2 Kay & J. 79. v. Eoot, 33 N. Y. 526. But see remarks of court in Beardsley v. ^ Towle v. Dresser, 73 Me. 252. Hotchkiss, 96 N. Y. 201, 211. [a) See Searcy v. Hunter, 81 Tex. 644 ; Ihley v. Padgett, 27 S. C. 300. 292 THE LAW OF PERSONS. and the beneficiary .^ So if he applied for shares in a stock com- pany during infancy, and sold them after majority (even though the sale were for the purpose of avoiding liability) he would be held to have ratified his purchase.^ (4) Ratification of indebtedness and of promises to fay money incurred and made during infancy. — This subject branches out into much detail. The whole consideration which the infant received for his promise may have been expended during minority, or it may have been useless to him, or perhaps detrimental. Whether this were true or not, his promise to pay was voidable, and could not have been enforced against him had he claimed in proper form his disability. The question then is, what is the effect of the new promise. Still he does not appear to be legally hound to rescind until he attains majority. Accordingly, if he should wait until that event happened, he would have a reasonable time ^ before acquiescence could be inferred from mere inaction. It would seem that mere acquiescence, unattended by circumstances arising after majority, from which ratification could be inferred, would not be enough until the statute of limitations operated in favor of a vendee as a bar to an action by the infant. It has been held that the reten- tion of the consideration for which a note has been given, after the infant comes of age, is not a ratification of the note.* The following points should here be separately noticed. 1. Is it necessary that the infant, when he makes the new promise, should know that the former one is invalid in law f As to this point, there is much conflict in the decisions. It was stated in an early English case that such knowledge on the infant's part is necessary,^ and this has been followed by a number of American courts.^ Other courts have decided that, as an adult, he is hound to know the law, and it is accordingly immaterial whether he knew it in fact or not.'' In this diversity of view, the better opinion would seem to be that the party promising should knoiv that he was discharged. The promise is not unfrequently made immediately after he be- 1 In re Smith, 38 L. T. N. s. 466 ; Norris v. Vance, 3 Rich. (S. C.) 16i ; Cornwall v. Hawkins, 41 L. J. (Ch.) 435. Turner v. Gaither, 83 N. C. 357. ^ Ex -parte Ebbetts, 39 L. J. (Ch.) ^ Morse v. Wheeler, 4 Allen, 570 ; Ring 158. V. Jamison, 66 Mo. 424 ; Ring v. Jamison, 3 Chapin v. Shafer, 49 N. Y. 407. 2 Mo. App. 584, and semhlc, Cheshire v. 4 Benham v. Bishop, 9 Conn. 330; Barrett, 4 McCord (S. C), 241. But see Catlin V. Haddox, 49 Conn. 492. Baker v. Disbrow, 3 Eedf. 348 ; on appeal, 5 Harmer v. Killing, 5 Rsp. 102. 18 Hun, 29, and 79 N. Y. 631. This was a ^ Petty V. Roberts, 7 Bush (Ky.), 410 ; case oi cestui que trust and trustee. See on Curtin v. Patten, 11 Serg. & R. 305 ; that point, Adair v. Brimmer, 74 N. Y. Hinely v. Margaritz, 3 Pa. St. 428 ; 539, 554. INFANCY. 293 comes of age, before he has acquired any knowledge of legal rules. He is readily entrapped into promises, which he would not have made with maturer judgment, to pay for a consideration which ought never to have been supplied to him. The lessons of experi- ence show that the safeguards attending these promises should be strengthened rather than weakened. 2. The promise should be direct and unequivocal. It must be made to the creditor or his agent,^ and should at least be an ex- plicit admission of an existing liability.^ Some of the cases cited require an express promise. The action may be brought on the old promise,^ though it is held in some cases that it may be brought on the new one, using the old as a consideration. 3. It must be accepted by the creditor with any qualifications made by the promisor. Thus if he make a conditional promise, — e. g.^ "to pay when he is able," — the creditor cannot enforce it without proving his ability.* 4. A promise made by another in his name, and without authority, may be ratified after majority so as to make him liable.^ 5. The infant should know all the facts which are material to the ratification, so that he can fairly judge whether it is prudent to make it.^ Whatever restrictions have been placed upon the new promise have been found, in the opinion of many jurists, insufficient to pro- tect the infant from rash and unguarded promises after majority. Statutes on this basis have been enacted in England and adopted in several of the American States, requiring the ratifying promise to be in writing." (a) 1 Bigelow V. Grannis, 2 Hill, 120. "> 9 Geo. IV. c. 14, § .5, known as Lord 2 Goodsell V. Myers, 3 Wend. 479 ; Tenterden's Act ; see in Maine, Public Proctor V. Sears, 4 Allen, 95 ; Wilcox v. Laws of 1845, ch. 166, construed in Roath, 12 Conn. 550 ; Millard o. Hewlett, Thurlow v. Gilmore, 40 Me. 378 ; Gen. 19 Wend. 301 ; Edgerly u.Sliaw, 25 N. H. Stats, of Kentucky, eh. 22, § 1, construed 514. in Stern v. Freeman, 4 Metcalfe, 309. 3 Whitney v. Dutch, 14 Mass. 457, The statute 9 Geo. IV. c. 14, § 5 is 461 ; Jackson u. Mayo, 11 Mass. 147. now repealed in England. The exist- * Everson v. Carjienter, 17 Wend. 419 ; ing law there makes contracts of infants Proctor V. Sears, 4 Allen, 95. which were formerly voidalile absolutely 5 Ward V. Steamboat " Little Red," 8 void, and for the most part rejects the Mo. 358 ; Hall v. Jones, 21 Md. 439. doctrine of ratification. See 37 & 38 6 Kay y. Smith, 21 Reav. 522. This is Vict. 62 (1874), called "The Infants' an instructive case. Relief Act." There are not many decisions (a) As to the Infants' Relief Act, 1874, ham n. Murdj^ 60 L. T. R. 956. Where the see Smith v. King [1892], 2 Q. B. 543. contract is partly executed, and the infant There is a tendency in several cases to has received a benefit thereby which he is place a strict construction upon this statute unable to return, he cannot recover nnder and to exclude from its operation contracts this statute money paid by him to tlie de- not therein specifically mentioned. Duncan fendnnt. Valentini v. Canali, L. R. 24 Q. V. Dixon, L. R. 44 Ch. D. 211; Whitting- B. D. 166. 204 THE LAW OF PERSONS. IV. Disaffirmance of a contract during infancy or afterward-i. — Assuming that an infant's contract is voidable, he has the power to disaffirm it during infancy (in most cases), or within a reasonable time afterwards. He would in some cases proceed affirmatively, by setting aside or repudiating the contract ; at other times he would wait until he was sued, and use the fact of infancy as a defence. At this point a rule becomes applicable, to the effect that he must return the consideration which he received from the other party to the contract, for " infancy is to be used as a shield and not as a sword." The rule means that he must return the consideration if he is able to do so. (a) If he has wasted it during infancy he will be excused, and may disaffirm without return, {b) Were it not so, the advantage of the principle relieving infants from liability would be in a large measure lost, as the infantowould be liable for the most extravagant expendi- ture by proof that he had defaced or ruined goods that he had purchased.^ If the property has been injured, he need only return it in its injured condition.^ This rule could not be applied to a case where, after majority, he had put it out of his power to restore the consideration.^ Right to recover hack money paid. — The view at one time prevailed that if an infant had voluntarily paid money upon an intended contract, and then refused to go on with it, he could not recover back the money. The action to recover back is derived from courts of equity, and it was assumed that it was not inequi- table for the holder of the money to retain it, so long as he was ready to go forward with the contract.* The later view is that reported giving construction to this Act. Mass. 359 ; Heath v. West, 28 N. H. 101 ; Mr. Pollock is of opinion that it reduces Bartholomew v. Finnemore, 17 Barb. 428 ; all voidable contracts of infants ratified at Kitchen v, Lee, 11 Paige, 107 ; Betts v. full age, whether the ratification be formal Carroll, 6 Mo. App. 518. The modification or not, to the position of agreements of of the rule where the consideration of the Imperfect obligation, — that is, which can- contract is wasted is found in Green v. not be directly enforced, though valid for Green, 69 N. Y. 553 ; Tuckers Moreland, other purposes. Pollock on Contracts (4th 10 Pet. 58, 74 ; Gibson r. Soper, 6 Gray, Lond. ed.), p. 62. This legislation seems to 279, 282 ; Chandler v. Simmons, 97 Mass. interfere unnecessarily with the liberty of 508 ; Bartlett v. Drake, 100 Mass. 174 ; adults to make contracts. The act of 9 Dill v. Bowen, 54 Ind. 204 ; Brantley v. Geo. 14, c. 14, above cited, requiring a Wolf, 60 Miss. 420 ; White v. Branch, 51 memorandum in writing, seems to be the Ind. 210. more judicious legislation. 2 Whitcomb v. Joslyn, 51 Vt. 79. 1 For the general principle, see Cogley 3 Middleton v. Hoge, 5 Bush, 478. V. Cushman, 16 Minn. 397; Bryant v. * Wilson r. Kearse,Peake's Add. Cases, Pottinger, 6 Bush, 473 ; Smith v. Evans, 196 ; M'Coy v. Huffman, 8 Cow. 84 ; 5 Humph. 70 ; Badger v. Phinney, 15 Weeks v. Leighton, 5 N. H. 343. (a) But see Morse ?'. Ely, 154 Mass. (h) Craig v. Van Bebber, 100 Mo. 584; 458 ; Clark v. Van Court, 100 Ind. 113. Harvey v. Briggs, 68 Miss. 60. INFANCY. 295 this rule can only be applied when the infant has received some benefit from the contract. If he has received no benefit, the money can be recovered baclc.i (a) Some cases in which the infant has been precluded from recovery by reason of receiving some benefit are found in a note.^ Rescinding contract of service. — An infant sometimes makes a contract to serve for a fixed time at a specified salary, and then before the time elapses repudiates the contract, and seeks to recover from his employer the reasonable value of his services. The difficulty in this case is, that owing to the doctrine of the " entirety " of the contract, one must regularly perform in full before he can recover anything from the other party. This rule of law is not here applied, however. The infant has a legal right to rescind the contract. On repudiating it the contract is sup- posed to have had no existence. Nothing remains but the fact that he has worked for his employer for a time with his assent. From this fact the law infers or implies a promise on the em- ployer's part to pay the reasonable value of his services.'^ The effect of this rule will be qualified by the fact that he has received compensation for his services from time to time as he rendered them."^ Who can take advantage of an irfanfs inahility. — The first question to be considered in this connection is, whether the infant's contract is void or voidable. If the contract be void, it is no contract, and accordingly it binds neither party. Each may raise the question of invalidity. If it be voidable, only the infant and those in privity with him can raise the question.^ The term " privity " includes all who represent him on his death, such as heirs, next of kin, etc. It does not include the creditors of the next of kin, the rule of disaffirmance being for the benefit and protection of the infant. If both parties are infants, the con- tract may be avoided at the election of either party. The rule may be illustrated by the case of mutual promises to marry. If 1 Corpe V. Overton, 10 Bing. 252; * Wilhelm v. Hanlman, 13 Md. 140; Medbuiy v. Watrous, 7 Hill, 110. Mountain?). Fisher, 22 Wis. 93; Taft v. 2 Holmes v. Blogg, 8 Taunt. 3.5, 508. Pike, 14 Vt. 405. Ex parte Taylor, 8 De G, M. & G. 254, 258 ; ^ Beardsley v. Hotchkiss, 96 X. Y. 201, Page V. Morse, 128 Mass. 99. 211, and Everson v. Carpenter, 17 ^Vend. 8 Whitmarsh v. Hall, 3 Denio, 375 ; 419 ; Taft v. Sergeant, 18 Bai-b. 320 ; Lufkin V. Mayall, 25 N. H. 82, overruling Henry v. Root, 33 N. Y. 526 ; Walsh v. AVeeks v. Leighton, 5 N. H. 343 ; Judkins Powers, 43 N. Y. 23 ; Chapin v. Sliafei-, V. Walker, 17 Me. 38 ; Hoxie v. Lincoln, 49 X. Y. 407 ; Sparman v. Keim, 83 N. Y. 25 Vt. 206 ; Lowe v. Sinklear, 27 Mo. 308 ; 245. Danville v. Amoskeag Mfg. Co., 62 K. H. 133. (a) Mordeeai v. Pearl, 63 Hun, 553 ; afTd, 136 N. Y. 625. 296 THE LAW OF PERSONS. an adult promises to marry an infant, the adult is bound, if the infant does not elect to disaffirm, which the latter may do;M'f both the man and woman are infants, each may elect not to be bound. A ratification by both, after majority, would not be a new contract (as it would be, had the original agreement been void), but rather a confirmation of the promises made during tlieir mutual infancy. Still it cannot be denied, under the decisions, that the new engagements might be so made as to be new promises instead of a ratification of the old promise .^ Section III. Capacity to do and perform civil Acts other than Contracts. — There are obligations devolving upon an infant either by some rule of law or by statute. Thus he may, as heir to an ancestor, be called upon to carry out a contract made by the latter during his life, or he may enlist in the army or the navy under the statutes of the United States. It is a general rule that if an infant voluntarily does that which he could legally be required to do, his act is binding. Such an act as conveying land held as trustee, or discharging from record a mortgage which has been paid, or assigning dower in land to a widow is here intended. The act done must not be unnecessarily detrimental to him. Thus, if he should assign more land for the widow's dower than she was entitled to, the assignment could be corrected by the proper court. Statutes permit infants to be bound as apprentices, and require them to sustain their illegiti- mate children. In such a case as that last named, a bond given by the infant for the support of the child will be valid. ^ Minors of the age of sixteen and upwards may be enlisted in the army with the written consent of parents or guardians. With- out that consent, no minor can be enlisted.* Minors between the ages of fourteen and eighteen can be enlisted in the navy until they are twenty-one, with the consent of their parents or guar- dians. At the age of eighteen, they may be enlisted for the regu- lar time of enlistment (five years) without parental consent.^ When they are once held under the authority of the Federal government they are under the control of the United States and cannot be discharged by a writ of habeas corpus issuing from a State court or magistrate.^ 1 Hunt V. Peake, 5 Cow. 475 ; Hamilton cation by an infant to be «?i writing, for this V. Lomax, 26 Barb. 615. would not extend to a new promise. See 2 Ditcliam v. Worrall, L. R. 5 C. P. cases supra. Div. 410 ; Coxhead v. Mulli.s, L. R. 3 C. 3 People v. Moores, 4 Den. 518. P. Div. 439. There might in such a case * U. S. Rev. Stat. §§ 1116-1119. be a question for the jury as to a matter of ^ \J. S. Rev. Stat. §§1418-1420, as fact. Northcote v. Doughty, L. R. 4 C. P. amended by 21 Stat. L. 331, § 2. Div. 385. This might be an important 6 Tarlde's Case, 13 Wall. 397. This is distinction in States which require a ratiji- a leading case, establishing the boundary INFANCY. 297 The principal instances of incapacity to act on the part of an infant beyond such as hav^e already been stated are these. He is not in general eligible to public office.^ Should he assume to execute the duties of such an office, he might be regarded as a trespasser.2 He cannot by his own act change his domicile. He cannot by common law act as administrator until seven- teen, and in New York, by statute, until twenty -one. (a) Ad- ministration should be committed to another during minority. If the office be inadvertently conferred upon him by the probate court, he will not be liable to account for goods received during infancy, but will be liable as trustee for all assets received after majority .3 He cannot make a will of real estate, (i'^) He cannot appoint an attorney nor appear in court by attorney* but only by guardian ad litem, or some similar representative recognized by the court. It may be added that he is pro- tected from liability by some special rules. One is that he is not affected by the doctrine of estoppel in pais, in the courts of com- mon law, though that principle lias been applied to him to some extent in the equity and bankru])tcy courts. Another rule is, that the statute of limitations does not begin to run against him as a creditor until he attains majority. He is, by a special exception in the statute, under a disability wliich leads to this result. Section IV. Special Rules in Courts of Uquiti/ for the Protec- tion of Infants. — Marriage settlements is a subject over which equity has cognizance. There are two classes of cases to be considered. One is where a female infant is a ward of the Court of Chancery. In this class of cases the court will compel the husband, on marriage, to make a settlement upon her from her personal estate. The reason is that as the personal property of the wife, by common law, belongs to the husband, or can be re- duced by him to possession, without such an exercise of jurisdic- tion the court could not protect its ward. The other class of cases is that of voluntary settlements of property made either by male or female infants. One of these may assume the form of a relinquishment of dower by the intended wife in her prospective husband's lands. This was sanctioned by a statute passed in the reign of Henry YIll.,^ if made in a pre- scribed manner. This statute is in general re-enacted in our between the jurisdiction of the Federal cases cited on pp. 503, 504. The infant in and State courts in an important class of this case had been chosen as constable, cases. ^ Carow v. Mowatt, 2 Edw. Ch. 57. 1 Claridge v. Evelyn, 5 B. & Aid. 81. * BeTinett v. Davis, 6 Cow. .393. 2 Green v. Burke," 23 Wend. 490, and ^ 97 Henry VIII. c. 10, §§ 6-9. (a) See in New York, 2 R. S. 75, § 32. (b) See in N. Y., 2 R. S. 57, § 1. 238 THE LAW OF PERSONS. States. It creates a " jointure." The act creating such an inter- est is termed the Statute of Jointures. The details will be found under that head in works upon real estate. Courts of equity uphold informal settlements of this kind, where they are made in good faitli and a competent, certain, and reasonable provision is settled upon the infant wife. These are termed equitable jointures.^ Or again, the settlement may be of the intended wife's estate upon the intended husband, or vice versa. The Statute of Jointures does not extend to this case, and its validity depends on general principles of law. A settlement of real estate is in its nature a conveyance, and, according to rules already stated, if made by an infant, must be voidable on attaining majority. But there is the disability of marriage, in case of a settlement made by the in- tended wife, to be added to that of infancy. Accordingly, she might avoid the settlement after the coverture ceases, and after attaining majority.^ The settlement may, however, be con- firmed after majority and during marriage by a confirmatory deed.^ The only way to effect an absolutely binding settlement is to have some general statute or a private act of the legislature. There is now in England a general statute npon this subject, authorizing infants, with the sanction of the Court of Chancery, to make binding settlements of their real and personal estates.^ There is a statutory provision in New York that all contracts made in contemplation of marriage shall remain in full force after such marriage takes place (a). It has been adjudged in one case that this language includes infants (J). This has not yet been decided by the courts of last resort. It would seem that such general words are not to be construed to give capacity to those who are at the time incapable to do a valid act, and that they were tacitly excluded. 1 McCartee v. Teller, 2 Paige, 511. renders valid a post-nuptial as well as an This is an instructive case. See also Buck- ante-nuptial settlement made witli the inp;ham v. Drurj', 3 Brown Pari. Cas. 492 ; required sanction. Powell v. Oakley, 34 Wilmot's Opinions, 177. By the Revised Beav. 575. It does not, however, alter the Statutes of New York there is no distinc- stahis of the infant in respect to capacity tion between lejjal and equitable jointures, to convey })roperty. In re Armit's Trusts, 2 Temple v. Hawley, 1 Sandf. Ch. 153 ; 5 Ir. R. Eq. 352. The management of tlie Jones V. Butler, 30 Barb. 641. It is said real estate of infants' estates under settle- in Temple v. Hawley, supra, that the pre- ment is regnlateii in great detail in Eng- ponderance of opinion is, that the wife land by 44 & 45 Vict. c. 41 (Conveyancing cannot avoid the deed during coverture. Act of 1881). It is brought under the See Beardsley v. Hotchkiss, 96 N. Y. 201. provisions of the "Settled Estates " Act of * Tenqile v. Hawley, supra. 1877. * 18 & 19 Vict. c. 43. This statute (n) Laws of 1848, ch. 200, § 4; Rev. [h) Wetmore v. Kissam, 3 Bosw. 321. Stat. 8th ed. p. 2601. INFAXCY. 299 A court of equity protects the rights of infants and does not allow the answer of a guardian ad litem in a suit to be used to their prejudice. A properly drawn answer submits the rights of the infant to the court. No decree will be made against him on the admissions of the guardian to his prejudice. The answer is a mere pleading. ^ The guardian will be made to respond in damages if he does not do his duty towards the infant.^ The rule of the court is that a decree against an infant does not bind him until six months after his majority.^ A direction to the contrary must be inserted in the decree, or this rule will be applied.* His rights can be examined in a new suit brought by him as well as by an appeal or review of the first proceeding. This doctrine is termed the right of the " parol to demur." It has been much modified by statute.^ The doctrine has some application in courts of law.^ A question of some importance arises as to the effect of having no guardian ad litem appointed. Will tliis vitiate the proceedings against the infant altogether so as to make them a nullity, or is it only error, which must be taken advantage of in the same action by appeal or other appropriate mode of review ? It is settled as a general rule that the failure to appear by guardian is not a mere irregularity, but is so erroneous that a court will set aside a judg- ment — e. g., of foreclosure — on account of it ; ''' (a) still, it is not an absolute nullity. The questions involved in the proceeding cannot be treated as though they had not been disposed of. In other words, the judgment or decree rendered cannot be " attacked collaterally " or " disregarded." ^ The mode of appearance is a local question, and depends on local law.^ A court of equity will enforce against infants, considered as property owners, the obligations usually incident to ownership. They hold property subject to public burdens, — e. ^., taxes. In some respects it will be important to inquire whether they acquired ownership by act of the law or by their oivn act. By " act of the law " is meant such a case as inheritance of land from an ancestor. 1 Bulkley v. Van Wj'ck, 5 Paige, 536 ; ^ Derisley v. distance, 4 Term R. 75 ; Stephenson v. Stephenson, 6 Paige, 353. Plasket v. Beeby, 4 East, 485. 2 Knickerbocker v. De Freest, 2 Paige, "^ McMurray v. McMurray, 60 Barb. 304. 117. 3 1 Daniell Ch. Pr. (5th eel.) p. 174. 8 Coit „. CqH^ m U. S. 566. * Wright V. Miller, 1 Sandf. Ch. 9 Id. It is said in this case, that it 103. ajjpears to be the local law of Connecticut 5 This right is abolished in England by that the appointment of a guardian ad 11 Geo. IV. & 1 Wm. IV. c. 47, § 10. litem is not necessary. (a) The omission to appoint a guar- of an order of appointment nunc pro hmc. dian before the beginning of tlie action Rima v. Rossie Iron Works, 120 X. Y. may be remedied at the trial by the entry 433. See ante, p 276. 300 THE LAW OF PERSONS. As the law casts the land upon the infant, it makes him legally competent to bear the burdens imposed upon it. He can only escape the obligation by ceasing to own the property; on the other hand, where the property is acquired by his own act, and the acquisition is voidable, he will escape liability by disaffirming the contract. If he does not do this, but remains owner, he cannot escape liability. This case may be illustrated by a subscription for railway shares.^ The rule, however, could not necessarily be applied to a case where an infant had taken a transfer of shares from an adult, as the latter might be bound to transfer to one who would by law be capable to assume the liability which the statute imposes, and accordingly the transferor would still be liable to an " official liquidator " in case of the insolvency of the company. There might be a difficulty in maintaining this view if the pro- ceedings were against the infant and he did not repudiate the transaction.^ Reference may now be made to some questions involving the rights of unborn children. It has been held that if a suit be com- menced, and an infant be born during its progress, the court will, if justice require it, make him a party to it.^ Again, questions of construction in a will may involve the rights of unborn children. A leading modern instance is the case of a testator making bequests to two existing reputed children of his mistress, M. L., and to " all other children which he might have or he reputed to have by M. L. then born or thereafter to be born." A child was born of M. L. after the execution of the will and be- fore the testator's death, and was acknowledged by him. The court held that this third child was entitled as a legatee.* In a later case the mother, being also a mistress, made the bequest in favor of " after born" children, and the same decision was made. In the first case the woman was pregnant when the will was made, and in the later, not. This fact was deemed immaterial.^ Section V. Statutory Protection to Infants. — There is an important class of statutes of this kind both in England and in this country, showing an increased disposition on the part of legisla- tures to so control the contracts of infants as to prevent them from 1 In re Constantinople & Alexandria Case, L. R. 8 Eq. 504 ; Sj'inons' Case, L. R. Hotel Co., L. R. 5 Ch. App. 302, 303, 5 Ch. App. 298 ; Weston's Case, Id. 614 ; n. 1. Lord Romilly, M. R., said, " I am Richardson's Case, L. R. 19 Eq. 588. not aware of any case in which an in- ^ The George and Richard, L. U. 3 Adm. fant has been relieved from shares which 466 ; Scruby v. Payne, 34 L. T. n. s. 845. have been allotted to him on his oivn per- * Occleston v. FuUalove, L. R. 9 Ch. sonal application." App. 147. 2 See Capper's Case, L. R. 3 Ch. App. & In re Goodwin's Trust, L. R. 17 Eq. 458 ; Mann's Case, LI. 459, n. 1. Cur- 345. tis's Case, L. R. 6 Eq. 455 ; Costello's INFANCY. 301 rendering service, etc., to the injury of their health and to the risk of their limbs or lives. In the same spirit are conceived the acts providing- against cruelty to children. These acts will be stated more in detail. The object of the so-called Factory Acts as passed by the English Parliament is to give protection to children and women employed in factories and workshops against injury from machin- ery, to secure good drainage and ventilation, to provide educa- tion for employees nnder thirteen years of age, and to regulate the hours of labor, meal-time, and overwork, etc. The statutes branch out into much minuteness of detail.^ This legislation is of course apparently open to the objection that it interferes with the right of employers freely to contract with their workmen. It seems, however, to be justified by the circumstances of the case, particularly in its application to children.^ There is similar legis- lation in this country.^ There is other legislation concerning children and a growing tendency to provide against acts endangering the health, life, or morals of young cliildren, and to make it highly penal for parents and others having charge of them to abandon them or to neglect to provide properly for them. Reference to such legislation will be found in tlie note.* ~ Section VI. Liahil'ity of an Infant for his Torts. — By a " tort " is here meant such a wrongful act uncoimected with a contract as gives an injured party a right to recover damages or to obtain other suitable redress, but is not for the time being, at least, treated as a crime. Infancy is no excuse for the commission of such an act. ^ See 41 & 42 Vict. c. 16 in connection with former acts. See also 54 & 55 Vict. c. 75 and 55 & 56 Vict. c. 62. ^ A good general view of the history of this legislation is found in the 9th edition of the Encyclopedia Britannica, title "Fac- tory Acts." 3 The legislation in New York upon this general subject is to be found in ch. 409 of the Laws of 1886, as amended by ch. 462 of the Laws of 1887; ch. 560, Laws of 1889; oh. 398, Laws of 1890; and ch. 673, Laws of 1892. The substance of these laws is, that no child irnder the age of fourteen shall be employed in any manufacturing establishment. " A manufacturing estab- lishment" does not include an employer employing less than five persons, except in cities. A register must be kept entering the name, birthplace, age, and residence of every employee under the age of sixteen, and these facts must be proved by affidavit, as prescribed in the Act of 1887, and kept on file by the employer. There are provisions for the enclosure of hoisting sliafts, protecting of elevator ways, con- struction of fire-escapes, cleaning of ma- chinery while it is in motion, for suitable wash-rooms and closets, and the time to be allowed for the noon-day meal (not less than forty-five minutes). A factory in- spector, with an assistant and deputies, is created with provisions for carrying the statute into eff"ect. Further details should be sought in the statutes. 4 Penal Code of New York, §§ 282, 2S7, 288, 289, 290 a, 291, 292, 292 a, 292 b. 203. See also § 887. 302 THE LAAV OF PERSONS. It has already been stated that an infant is not liable for a tort arising out of a contract. The meaning here is, that the wrong must not be committed as a mode of carrying out the contract. If an infant makes use of a contract as an occasion or opportunity to commit a tort, he will not be excused. Thus, if an infant, having hired a horse, should, through inexperience or negligence, drive him immoderately, or otherwise injure him, there would be no action.^ On the other hand, if he should wilfully maltreat the animal, he would be liable.''^ The contract in this last case would simply supply an opportunity for the commission of the wrong. So he would be liable if he had been instructed by the owner not to use the horse in a particular way, — such as to jump fences on a steeple- chase, — and he violated the directions to the owner's injury .^ It is enough that the wrongful act is independent of the contract.* So if he hires a horse to go to one place, but goes in a different direc- tion, he is held in law to have converted the animal to his own use. If an adult did this he would be liable to an action for conversion.^ In like manner an infant would be liable.^ It has already been shown that if an infant practises a fraud in making a contract, he cannot be sued in an action which involves the affirmance of the contract. The better opinion is, that the injured party may dis- affirm the contract on the ground that there was no true contract, and so recover back the goods in an appropriate action (replevin), or bring an action in conversion for their value.'^ It is a general rule of law that one whose goods have been unlawfully converted and sold may waive the wrong and bring an action to recover the price received, by a species of ratification. This rule is applied to infants who are wrongdoers.^ The rule of liability for torts has been applied to a case where a missile, thrown by a lad in sport, caused injury. The theory is that the injured party is entitled to compensation for damages, even though tliere be in fact no malicious intent.^ The commis- sion of the tort is not excused on the ground that the infant's father commanded him to commit \i}^ 1 Eaton V. Hill, 50 N. H. 235. v. Cowan, 59 111. 341. For a discussion 2 Id. of the general subject, see Ferguson v. 8 Burnard i'. Haggis, 14 C. B. n. s. 45; Bobo, 54 Miss. 121. Walley v. Holt, 35 L. T. N. s. 631. ^ pj^-eii v. Martin, 32 Vt. 217 ; Shaw * Campbell v. Stakes, 2 Wend. 137. v. Coffin, 58 Me. 254. So if he had given 5 Fish V. Ferris, 5 Duer, 49. his note by way of settlement it has been ® Homer v. Thwing, 3 Pick. 492 ; held that he could be sued upon the note. Towne v. Wiley, 23 Vt. 355 ; Vasse v. Ray v. Tubbs, 50 Vt. 688. Smith, 6 Cranch, 226 ; Walker v. Davis, ^ Peterson v. Haffner, 59 Ind. 130. See 1 Gray, 506. But see Penrose v. Curren, Conway v. Eeed, 66 Mo. 346. 3 Rawle (Penn.), 351. lo Humphrey v. Douglass, 10 Vt. 71. ■^ Nolan V. Jones, 53 la. 387; Mathews INFANCY. 303 Section VII. LiahiUty for Crimes. — The responsibility of an infant for the commission of a crime depends upon his capa- city to form a criminal intent. There is an arbitrary rule of the common law that an infant under seven years of age cannot commit crime of the grade of felony.^ Between the ages of seven and fourteen he may or may not be capable, as the evidence shows discretion, or capacity to understand the nature of the act and its wrongfulness.^ After the prescribed age of fourteen he is pre- sumptively capable. The rule of incapacity extends to cases of criminal neglect as woll as to positive wrongs. For example, a child of one or two years of age cannot be charged with crime for allowing a nuisance to remain upon his property .^ Formerly the punishment for crimes committed by infants (having capacity) was the same as in the case of adults. The modern law is more humane and philosophical. The present practice, when the infant criminal is under a prescribed age (e._(/., sixteen), is to commit him for care and training to insti- tutions known as reformatories, houses of refuge, industrial schools, or juvenile asylums. These are regulated in England and the various States of this country by local statutes.^ Under a beneficent provision of the New York law, a male who is between the ages of sixteen and thirty, convicted of felony, who has not been previously convicted of felony, may, in the discretion of the court, be sentenced to a reformatory prison known as the New York State Reformatory at Elmira.^ 1 The New York Penal Code is broader. ^ People r. Townsend, 3 Hill, 479. Its language is that a child under the age ■• In New York see Penal Code, §§ 700, of seven years cannot commit a crime, § 18. 701, and 713. In England see 29 & 30 2 State V. Learnard, 41 Vt. 585. The Vict. c. 117, Reformatory Schools Act, extreme age of presumptive incapacity is also 37 & 38 Vict. c. 47 and the Indus- reduced in New York to twelve, §19. trial Schools Act of the same year, 29 & 30 There is a special rule in the case of rape. Vict. c. 118. Peual Code, § 279. s Penal Code, § 700. CHAPTER IX. THE DOCTRINE OP STATUS AS AFFECTING THE CAPACITY OF PERSONS OF UNSOUND MIND (INCLUDING IDIOTS AND LUNATICS, AS WELL AS HABITUAL DRUNKARDS AND PRODIGALS). The principal object of this chapter is not to consider the rules of law which seem to test mental unsoundness, but to dis- cuss the matter of placing persons ascertained to be of unsound mind under the care of guardians, conservators, or committees, or bv whatever name such overseers may be called, as well as the legal effect of such guardianship upon the capacity of the ward to do future legal acts. Briefly stated, the topic concerns the "status" or legal condition of this class of persons. It is well to premise, that questions of capacity to do legal acts may be presented to a court of justice under two leading con- ditions : one where capacity is contested, and there is no guar- dian, and the other, where the act is done by one at the time under guardianship. It is a rule that every court having the power to dispose of a matter in which the validity of a contract or other legal act comes in question, has jurisdiction incidentally to decide upon the capacity of a person performing the act under considera- tion. The validity of a deed, will, marriage or contract might be respectively in issue in one case before a court of law, in nnother before a court of equity, and again before a probate court ; and if insanity were set up to overturn the transaction, the court having control of the controversy could lawfully deter- mine whether a party to the transaction had sufficient mental capacity to perform it. Such a determination would, however, only dispose of the particular case, so that all the questions could be raised anew in a different action between other parties. This multiplicity of possible actions might be a very good reason, when mental unsoundness is assumed, for determining directly the capacity of the individual to do legal acts. It should be added that such a person might, if not under guardianship, dissipate his estate, or destroy it altogether, by mere acts of insane folly, or might commit wrongs injurious to others, who would be entitled to compensation from his estate. STATUS OF PERSONS OF UNSOUND MIND, 305 Tt is, accordingly, a liiglily beneficent thing to have a method whereby sanity can be directly tested, so that sanity or insanity is the direct and practically the sole object of inquiry. If a person in such a proceeding is found to be insane, he may be made a ward of a court of equity, while his guardian will in future repre- sent him in needful legal acts. An inquiry upon this topic will naturally lead to a discussion of the jurisdiction of the court, the mode of proceeding, and the eifect of the adjudication. Section I. The Jurisdiction of the Court. — The correct view seems to be, that this was derived from the same source as the power over infants. This has been explained as the doctrine of jjarens patrice. What is meant is, that the king had the power of protection over idiots and lunatics, as he had over infants, and that this passed by delegation to the Court of Chancery. There has been a difference of opinion among jurists upon this question, some maintaining that there was no original power vested in the king, at least over the idiots' or lunatics' lands, but that his authority rested upon a statute passed in the reign of Edward II., concerning the royal prerogative.^ It would, how- ever, appear from the reports in the Year Books of Edward I., that the power was then admitted to exist in the court so fully that discussion of it was thought unnecessary. This controversy is practically set at rest by a case decided in the year 1304, in the reign of Edward I., and of course a number of years before the statute of Edward II., on which the jurisdiction of the court has by many jurists been supposed to rest. This case was not known to the legal profession until very recently, the report of it having been first published in the year 1864. The case is sub- joined in full. " One A. demanded certain tenements against one Piers, which Piers vouched to warranty one D. — whose body and part of whose lands {because he was an idiof) were iyi the kinc/s hands, and part of whose lands were in the hand of, etc., and part, &c. — to be summoned in the county of Dorset. — Malherthorp,'" (of coun- sel objects) : " You vouch one D., who is an idiot, and in ivard to the king ; and vouching an idiot is like vouching an infant, in which latter case one shall not be received to vouch without showing a specialty ; and this by reason of the hardship that would ensue to the demandant, as thereby his right would be delayed, for the parol would demur without day ; therefore let them show the deed by virtue whereof they vouch. — Bereford, J. You are saying nothing wonderful. — Friskeney'' (of counsel for the other side) : " See here the deed (and it contained a warranty). 1 17 Edw. II. c. 9 & 10. See Hume v. Burton, 1 Eidgeway's Pari. C. 204, 224. 20 306 THE LAW OF PERSONS. Bereford, J. Go and adieu without day, &c. And the king is to be spoken with, &c." ^ This venerable case, decided nearly six hundred years ago, dis- closes the fact that idiots were then in wardship to the king, because they were idiots, in the same way as infants ; that the rules applicable to the disabilities of an infant in court were applied to them ; and that these rules were at that time so well established as to be instantly conceded by the judge in response to the counsel representing the idiot, but that the king as guar- dian was to be spoken with. The statute of Edward II., already referred to, must be regarded simply as declaratory of existing law, except so far as new rules were introduced by it. An arbitrary and wholly unjust dis- tinction was established by it, to the effect that the king could take the profits of an idiot's land to his own use, except as to supplying him with necessaries, while in the case of a lunatic there was deemed to be a trust.^ It would result that a court of equity has jurisdiction over persons of unsound mind from the simple fact of their mental unsoundness, although their unsound- ness has not yet been judicially determined by the court.^ There are important statutes on this subject both in England and in this country.* (a) Section II. The Mode of Proceeding. — The proceeding in such a case is not a trial ; it is in the nature of an inquiry before commissioners appointed by the Court of Chancery. The form of the existing commission arose from the form of writs origi- nally granted by the king.^ An application for a commission is made by petition. The commissioners act with a jury, and hear testimony, and make up a verdict or finding.^ This is returned to the court for its action, which may be either by way of con- firmation, or it may be set aside, if improperly executed,^ 1 Year Book, 32 & 33 Edw. I. Pub- & 46 Id. c. 82. In New York there are lished under direction of the Master of the detailed regulations in the Code of Civil Rolls. Lond. 1864, p. 272. Procedure, §§ 2320-2344. 2 See 17 Edw. II. c. 9 & 10. 6 Rochfortu. Ely, 1 Ridgeway's Pari. C. 8 Vane v. Vane, L. R. 2 Ch. D. 124 ; 524, 539. In re Brandon's Trusts, L. R. 13 Ch. D. ^ in New York there must be not less 773. Independent of the case cited from than twelve nor more than twenty-four the Year ^ook, supra, the jurisdiction of jurymen. At least twelve must concur in the court is very obscure and the decisions a finding. Code of Civ. Pro. §§ 2330, irreconcilable. 2331. * See in England 16 & 17 Vict. c. 70 ; ' Ex parte Roberts, 3 Atkyns, 5 ; Ex 18 & 19 Id. c, 13 ; 25 & 26 Id. c. 86 ; 45 parte Cranmer, 12 Ves. 445, 454. (n) See also 52 & 53 Vict. c. 41 ; 53 & 54 Vict. c. 5 as amended by 54 & 55 Vict, c. 65. STATUS OF PERSONS OF UNSOUND MIND. 307 If the alleged lunatic is found to be of unsound mind, there may be a " traverse " on his part. The meaning of this is, that lie may have the subject examined, not as an inquiry, but tried after the usual methods of an action, by having an issue. This is a right which cannot properly be denied.^ In England, the course was to send the case out of the Court of Chancery to a court of law. The course sanctioned by Chancellor Kent here has been, to retain the case in the Chancery Court, and to direct the question to be tried in the court of law.^ Other persons besides the alleged lunatic aggrieved by the decision may, in the discretion of the court, be allowed to traverse the finding,^ If the lunacy has been properly found, and the lunatic is sub- sequently restored to reason, an application may be made to have the commission " superseded." In such a case it is usual in England for the Chancellor in person to examine the lunatic, and so satisfy himself of his restoration. In this country this course may be taken, or the subject may be referred to a master in Chancery or referee, who will report to the court.* (a) An inquisition of lunacy may be " suspended " without being " superseded." By " suspension " is meant removing the effect of the finding as to certain acts, but allowing it to stand in other respects. For example, it might be so far suspended as to enable the party to make a will, but still remain operative as to other trans- actions. Such a suspension would not of itself establish the fact that the will was validly made by a person having capacity, but it would remove the artificial incapacit// produced by the operative force of the inquisition, and allow after the testator's death a general inquiry into his mental condition when the will was made.^ Section III. The Effect of the Adjudication. — The regular effect of an adjudication of mental unsoundness is to deprive the person in question of capacity to do future legal acts. The inquiry is henceforward not open as to whether or not he is really unsound in mind. He has an artificial condition impressed upon him, and may be well enough styled a " legal lunatic." If he were declared an habitual drunkard, he would be so legally, whether 1 Ex parte Wragg, 5 Ves. 450. 2335, for the present practice in New 2 Matter of Wendell, 1 Johns. Ch. 600, York. There is a form of an order for trial on p. 3 Matter of Fust, 1 Cox Eq. 418. 603. See the Code of Civ. Pro. §§ 2334, * Matter of Hanks, 3 Johns. Ch. 56". 5 See Wait v. Maxwell, 5 Pick. 217. {a) The commission of lunacy cannot be Owens, 44 N. Y. St. R. 306; afTd. 136 N. superseded in such a proceeding after the Y. 642. For the tests of a recovery from death of the lunatic. In the Matter of lunac)', see Matter of Brugh, 61 Hun, 193. 308 THE LAW OF FEliSONS. he were so in fact or not.* Futnre contracts would accordingly be void.2 (a) There is a difference of opinion as to the point whether this rule extends to wills. Some courts hold that one under guardianship is competent to make a will, if restored to reason, though the letters of guardianship have not been super- seded. 2(^) Others hold a more rigorous view, and deem the act of the lunatic after the guardianship to be void. In one case it is said that the lunatic {i. e., one judicially declared to be so) should for most if not all purposes be regarded as civilly dead.* And in this spirit all gifts, contracts, bonds, etc., are void, and his capacity to enter into such transactions is suspended until he is permitted by order of the court to resume the control of his property.^ The courts in some States hold that an inquisition only makes a prima facie case.^ The true view undoubtedly is that the whole matter resolves itself into capacity/ to contract. One judicially declared insane has no such capacity. There is a highly impoi'tant inquiry as to the effect of a finding of lunacy when the insanity is dated back by the jury holding the inquisition. For example, the finding might be that A. is a lunatic or of unsound mind, and has been for the last two years. During that period he may have made contracts, conveyances, etc. The expression used in the decisions is, that the prior contract is in such a case " overreached " by the inquisition. The point then is, whether such a finding will make the contract so over- reached utterly void. The correct view is. that it will not. Such a conclusion would be highly inequitable and unjust, since the opposite party to the contract had no opportunity to be heard, unless in some form he had been permitted to deny or " traverse " the inquisition. The authorities, however, hold that the ante- dated insanity raises a presumption that the contract is void. This seems sufficiently severe, and even illogical, since nothing should ever be presumed in tliis artificial way against one not a party to the proceeding, who, when he made the contract, had in 1 This point is ably stated by the Su- Fitzhugh v. Wilcox, 12 Barb. 235 ; Bevev- preme Court of Pennsylvania in Imhoff I', ley's Case, 4 Coke, 12i (a) ; Rannels v. Witmer, 31 Pa. St. 243. Gerner, 80 Mo. 474 ; Griswold v. Butler, 2 icj. 3 Conn. 227 ; Imhoff v. Witmer, 31 Pa. 3 Stone V. Damon, 12 Mass. 488; St. 243. Leonard v. Leonard, 14 Pick, 280, 284 ; 6 Hill v. Day, 34 N. J. Eq. 150 ; Keys Breed v. Pratt, 18 Id. 115. v. Norris, 6 Rich. S. C. Eq. 388. It is * McNees v. Thompson, 5 Bush (Ky.), made so by statute in Ohio. See Messen- 5 L'Amoureux v. Crosby, 2 Paige, 422 ; ger V. Bliss, 35 Ohio St. 587. («) Carter v. Beckwith, 128 N. Y. 312. Rice v. Rice, 50 Mich. 448 ; s. c 53 Mich. {b) Stevens v. Stevens, 127 Ind. 560 ; 432. STATUS OF PERSONS OF UNSOUND MIND. 309 his favor the presumption that he was contracting with a person competent to contract.^ («) The regular result of an inquisition is the appointment of a guardian, in some States called a "committee," in others "a conservator," and again an " overseer." The term " committee " is to be preferred, as it is found in the common law. The committee has charge sometimes of the estate alone, at other times of the person alone, or it may be of both. The prop- erty of the lunatic is properly deemed to be in the custody of the court (custodia legis), and the committee is its officer.^ His position is much like that of a receiver in the case of the judicial administration of a trust. His right to sue in his own name or to be sued as committee is generally a matter of local regulation.^ Important questions arise as to the theory on which the luna- tic's estate should be managed by the court, whether for the lunatic's benefit, or for his representative's. The correct theory is to manage it for the best interests of the lunatic, without special reference to his representatives. Thus, if he were a man of wealth and social position, the aim of the court would be to keep up a mode of life and habit of expenditure closely resembling that which he had adopted while sane, and in that aspect, for example, to hire such a pew in a church as he had then hired, and to continue the appropriations for charitable purposes which he liad been accustomed to make.* This general theory has recently been carried so far in England by the Court of Appeal as to hold that it has jurisdiction to order a " debt of honor" to be paid out of the lunatic's estate. It was not the case of a gambling debt, which was called a " debt of dishonor," but a voluntary obligation which a man of honorable sentiments had engaged to pay, and had already in part discharged. The estate of the lunatic was large, there were no creditors, and the next of kin did not object to the action of the court.^ Tlie expenditure must in all such cases be made under the 1 On this general suhject see Hart v. ^ Adnms v. Tliomns, 81 N. C. 296. Deamer, 6 Wend. 497 ; Osteihout v. Shoe- ^ Boiling ?-•. Turner, 6 Rand. (Va.), 584. maker, 3 Hill, 513 ; Demilt v. Leonard, 11 For the New York law as to his powers Abb. Pr. 252 ; Rogers v. Walker, 6 Pa. St. and duties, see Coile Civ. Pro. § 2337 and 371 ; Willis v. Willis, 12 Pa. St. 159. §§ 2339-2344. He is required to file in- Under the present New York Statute the ventories and render accounts much in the finding must be limited to the time of the same wnj' as an executor or administrator, inquiry, and it cannot properly be found * May v. May, 109 Mass. 252. that incapacity has existed for any definite ^ j^ re Wbitaker, L. R. 42 Cli. Div. period in the past. Code of Civ. Pro. 119. § 2335. In re Demelt, 27 Hun, 480. (a) Hughes v. Jones, 116 N. Y. 67. 310 THE LAW OF PERSONS. sanction of the court. The mere fact that a vendor continues of his own motion, and with full knowledge of the facts, to sell to the lunatic merchandise whicli he had been accustomed to sell him, would not give him a cause of action, either against the lunatic or the committee.-^ Similar general rules are applied in several of the States to spendthrifts and habitual drunkards.'-^ Several inquiries may be suggested concerning the effect of guardianship in one State over the person or property of the lunatic in another State or country. (1) It is a general rule, that a committee appointed in one State has no power to act in another State.3 It has, however, been held that a foreign curator may bring actions in England for money due to the lunatic, or receive money and give a good discharge for it. His case might be likened to that of a foreign assignee in bankruptcy who takes the title to the bankrupt's estate by an assignment operating by a rule of law.* The case seems to belong to the topic of the " comity of States or nations," and the foreign court may have some discretion in the matter.5 ^^o) The better opinion is that the domicile which the lunatic had when judicially declared to be insane continues. His case has been likened to that of father and child. There is, how- ever, no close resemblance between the two cases. The relation between the parties is purely an artificial one, established for cer- tain purposes, and may suddenly be put an end to by restoration to reason. The father's guardianship is a natural one, and in the absence of misconduct on his part continues during minority. Whether the committee can fix the lunatic's domicile or change it to a State or country different from his own, is not fully settled. There are cases which seem to hold that he can,^ but they are strongly criticised by Mr. Dicey as unsound in principle.^ 1 Wp'itern Cement Co. v. Jones, 8 Mo. one against whom proceedings for the ap- ^ 373_ pointment of a guardian are pending, may 2 As to hnl.itual druiiknrdp in New so far cliange his domicile to another State York, see Code of Civ. Pro. §§ 2320, ei seq. as to give the latter State jurisdiction of the The case is assimilated to that of lunacy, original probate of his will, and that the 3 Matter of Perkins, 2 Johns. Ch. 124 ; determination of the foreign court will be Matter of Taylor, 9 Paige, Gil ; Rogers v. given effect to in Massachusetts. This de- McLean. 31 Barb. 304 ; Matter of Rous- cision seems to rest mainly on the essen- toun. 1 Russ. 312. tially local character of this kind of 4 Scott V. Bentley, 1 K. & J. 281. guardianship. Though conclusive in the 6 As to discretion, see In re Gamier, State where it is created, it has no force L. R. 13 En. 532. elsewhere, and State comity requires the 6 Holyoke v. Haskins, 5 Pick. 20; act done in a State where there is no Anderson v. Anderson, 42 Vt. 350. guardianship to be recognized as valid, 7 Dicey on Domicil, p. 132. ex-en in a State where gnardian.ship ex- It has recently been decided in the Su- ists. The law of the place of the new preme Judicial Court of Massachusetts that domicile thus triumphs in its own forums STATUS OF PERSONS OF UNSOUND MIND. 311 The court in the State where the property is, has, by reason of its presence, power to act in reference to it, though the huiatic may reside abroad, ^ The jurisdiction of the court over feeble- minded persons does not necessarily rest upon the fact tliat ju- dicial proceedings have been entered upon to appoint a custodian or curator ; it is rather derived from the fact of their feebleness or unsoundness of mind and the necessity of their being cared for.2 The court may order an insane foreigner found within its jurisdiction to be returned to his foreign domicile.^ The details of practice as to the modes of appointing com- mittees in lunacy and their methods of suing and being sued, may be found in the books on Chancery practice. Their power to con- tract and to do other acts independent of the commission, will be found in works on contracts and wills. The works on criminal law must be consulted in matters of crime. The various writers on medical jurisprudence will supply valuable information upon the theories and signs of insanity applicable to all these branches of law. Other Cases of Incapacity. — Reference may be made in this connection to the relation of the Indian to the State and the United States. This subject involves the power of the executive department to make treaties with the Indians, as well as the power of Congress over them in the States and within the Terri- tories. The only branch of the subject to be considered in this connection is the status of individual Indians. It is settled law, that so long as Indians maintain their tribal organization and relations, which may be termed a state of semi- independence and pupilage, the United States has the power of controlling them. It may exercise this control either by treaties, as in the past, or by Acts of Congress.* An Act of Congress accordingly is valid which gives jurisdiction to the courts of the Territories over specified crimes committed by Indians within the Territories, or to the courts of the United States for the same crimes committed on an Indian reservation within a State of the Union.^ A State has no power over such an Indian, for the Indians, under over the law of the State where the guar- agement were confprred in a colony which dianship exists. Talbot v. Chamberlain, were not recognized in the court in 149 Mass. 57. England. 1 Matter of Ganse, 9 Paige, 416. 3 Matter of Colah, 3 Daly, 529; s. c. 11 2 Malin v. Malin, 2 Johns. Ch. 23S ; Abb, Pr. N. s. 209 (Parsee Merchant's Matter of Barker, Id. 232 ; in re Pjarlow's Case). Will, L. R. 36 Ch. D. 287. In this last * United States v. Kagama, US U. S. case there was no judicial determination 375. of insanity, but statutory powers of man- ^ Id. 312 THE LAW OF PERSONS. the conditions mentioned, owe no allegiance to a State within which their reservation may be established, and the State gives them no protection.^ The result seems to be, that a tribal Indian can only be deemed a " person " by force of some action of the United States. Views of State courts on the capacity of tribal Indians to sue and to be proceeded against seem to be overruled or superseded by this de- cision of the United States court. When the tribal relation has been broken up, it would appear that an Indian, being born in the country, would be a citizen of the United States and of the State where he resides, and entitled to all the rights of citizens.^ (a) The following points have been decided in the circuit courts of the United States. An Indian is so far a " person " that he is entitled to a writ of habeas corpus in the Federal courts under the cases prescribed by law for the issuance of that writ.^ He must be regarded as a freeman.* A white man does not obtain the status of an Indian by adoption by an Indian tribe, and his offspring belong to the white race.^ An Indian tribe has no power to " naturalize " a white man so as to make him legally an Indian.^ 1 United States v. Kagatna, 118 U. S. * Ex parte Eeynolds, supra ; United 375. States v. Rogers, 4 How. U. S. 567. 2 United States Const. XI Vth Amend- ^ The general subject of the "legal nient, § 1. status" of an Indian is discussed in a 3 United States v. Crook, 5 Dillon, pamphlet published b}' Robert Weil, Se- 453. ligman Fellow, in Columbia College, New 4 Ex jmrfr Reynolds, 5 Dillon, 394. York, 1889, (a) But he is not a citizen within the alized, taxed, or recognized as a citizen Fourteenth Amendment to the Constitu- either by the United States or by a State. tion, even though he has abandoned his Elk v. Wilkins, 112 U. S. 94. tribal relations, if he has not been uatur- CHAPTER X. MASTER AND SERVANT. This subject will be treated in three principal divisions, — I. Slavery ; II. Apprenticeship ; III. Service arising out of contract. DIVISION I. — Slavery. The great and striking feature in tliis form of service is, that it is compulsory, existing by a mere rule of law, without any ele- ment of contract, and that there are attendant upon it certain extraordinary facts highly burdensome to the servant, — such as absence of compensation, unlimited service, feeble restraints against violence to the person, and perhaps the notion of prop- erty or ownership in tlie master. It is emphatically a legal, or jural, relation, — a creature of positive law and opposed to natural justice. It presents important questions of status in reference to its legal recognition in other States where slavery does not exist. An attempt to give slavery a rational basis is found in the Roman law. It was admitted that it was contrary to the law of nature, but it was held to exist by the so-called " law of nations " (jus fientiurti). There were several modes by which a free person became a slave. One was by falling under the poiver of a foreign nation, either by capture in time of war, or coming into the pos- session of a people with whom there was no friendly treaty or intercourse. Another leading method was the case of a free per- son of twenty years of age and upwards allowing himself col- lusively to be sold as a slave, with the intention of sharing the price received by the seller and then claiming his freedom. To meet this fraud, the magistrate would adjudge him to be a slave, tlms protecting the title of the purcbascr.^ Slavery might also exist as a punishment for crime. There was a peculiarity in this case, — viz., that the "slave" had no master. He was termed a slave of punishment (^servus pcence). An instance was a person 1 Institutes of Justinian, Book I. Title III. 314 THE LAW OF PERSONS. condemned to labor in the mines.i The status of slavery having thus originated, would pass by birth or succession to children, the general rule being that the child followed the condition of the mother, whatever might be that of the father.^ Slavery having been abolished in the United States by constitu- tional amendment, it is now a matter principally of liistorical in- terest. Some questions of a legal character may still arise as to the status in a particular State of a slave owned elsewhere. The prevailing view is that slavery, being contrary to natural justice and only existing by positive law, has no claim to international recognition. If a master voluntarily bring his slave into a country where slavery does not exist, he becomes free. This is espe- cially the case where the local law declares that slavery shall not exist. This doctrine was held very early in France, where the French court determined a case against an ambassador of Spain, who had brought a slave into France.^ The same point was ruled in the State of New York while slavery existed in this country as against a Kentucky master who passed through New York in transitu with his slaves to another State.* The Thirteenth Amendment to the United States Constitution, abolishing and prohibiting slavery, makes an exception as to invol- untary servitude for crime. It would appear that this form of " servitude '' might still be created by a State, though no occasion has yet arisen for deciding the point. 1 This form of slavery was abolished by pair his decayed houses, to pay his ransom Justinian, Novel 22, 8. and also the four accustomed payments 2 Bodin, the French political philos- used in this realm ; but also that if with- opher, writing in 1576, though trained in out his leave they should change their the Roman law, repudiates the theory that dwelling-places wherein they were born, slavery can be rested on captivity in time he might lead them home again in a of war, saying, " that the good and noble halter." Knolles' Trans., 1606. heart would always rather choose to die * Bodin, ch. 5, p. 42. He says, "The honestly than unworthily to serve as a slaves of strangers, so soon as they set their base slave." His whole treatment of the foot within France, become frank and free, subject is masculine and noble. He gives as was by an old decree of the court of a terrible picture of the manumitted men Paris determined against an ambassador of of his day that is worth reproducing : " I Spain who had brought a slave with him have seen the lord of the White Eock in into France." In another case cited in the Gascony claim not only to have right over same connection, he says "that the host his manumitted subjects, but also that o/'^/ie /(ozfse where the master was staying, tliey were bound to trim his vines, to till understanding the matter, persuaded the his grounds, to mow his meadows, to reap slave unto his liberty." and thresh his corn, to carry and recarry * Lemmon v. The People, 20 N. Y. whatever he should command them, to re- 562. MASTER AND SERVANT. 315 DIVISION 11. — Apprenticeship. The term " apprentice " is generally used in this country to designate a class of persons who labor for others under statutory conditions or requirements in order to learn some trade or voca- tion. An apprentice in such a case differs from a servant in this, that the employment of the former is regulated by positive rules of law, while the obligations of the latter depend wholly upon contract. If there were no restrictive statutes in a particu- lar State, the apprenticeship would be governed by the general rules of the law of contracts. Apprenticeship had its origin in the Middle Ages in connection with membership of the trade guilds. Many trades could only be practised by those who had the " freedom " of the guild. This could only be obtained by an apprenticeship to some member of the guild for a time varying according to local usage. The num- ber of persons following a trade could thus be practically limited by rule. The rules governing guilds were rigorous. They pre- vailed in continental countries as well as in Great Britain. This subject may be considered under two aspects : first, where the apprenticeship is created by mere contract, and second, where it is created by statute. In the first case, assuming that the apprentice is a minor, it would still be necessary that he sliould enter into the contract.^ His father must also assent, as he is entitled to the child's custody and his services. The contract of the infant will not be void on account of his infancy, but only voidable. It would not be absolutely binding on him, as it would not fall within the class of necessaries. It is still plainer that an adult could not be bound unless he executed the agreement.^ Should a father enter into covenants for the conduct of the son, he would be liable, from his own estate, if the covenants were broken.^ In order to constitute an apprenticeship, there must be mutual agreements to teach and to learn a trade. A mere agree- ment on the one hand to serve and on the other to supply food, clothing, and support will be a contract of hiring instead of an apprenticeship.* In other respects than these the general law of contracts may be resorted to for rules applicable to the case. The subject of apprenticeship by statute presents two distinct cases: one, where the apprenticeship is voluntary in its origin; the other, where it is compulsory. The special rules governing 1 Rex V. Annesby, 3 B. & Aid. 584. prenticesliip by contract is reoo£rTu?:ed in 2 Eex V. Ripon, 9 East, 295. Crombie o. jreOiath, 139 Mass. 550. 8 Cuming v. Hill, 3 B. & A. 59. Ap- * Rex v. Billinghay, 5 A. &. E. 676. 316 THE LAW OF PERSONS. this branch of the subject were worked out in England in constru- ing a statute passed in the reign of Queen Elizabeth.^ The English courts did not favor this legislation, applying it only to trades that existed at the time of its enactment. New trades were left to the general law of contracts. Any compulsory features of trade apprenticeship were abolished in 1814, under the influence of the writings of Adam Smith and his followers.^ There were still compulsory features in cases that might arise under the Poor Laws. English decisions rendered while apprenticeship was compulsory will be useful in disi)osing of cases in this country involving apprenticeship in general. Voluntary apprenticeship will be considered under the follow- ing heads : I. Method of creation ; II. Effect of the relation ; III. Remedies for breach of the agreement; IV. Dissolution. I. iMethod of creation. — The statute of Elizabeth provided that none should be apprentices except minors.^ The term of service should in general be seven years.* The relation must be created by an indenture (or instrument under seal).^ No agreement con- stituted an apprenticeship without an indenture.^ There might be two or more masters named in the indenture. If one died during the continuance of the apprenticeship, the party bound would be- come the apprentice of the survivor.' (a) If the term mentioned in tlie indenture was less than seven years, it was voidable and not wholly void.^ The contract of the master being to teach a trade to the minor, it contains certain implied conditions, — e. g., that the apprentice is ready and willing to be taught,^ and also that he shall continue in a state of ability to perform his contract. If lie is prevented from doing that by permanent illness, he is excused. ^^ The contract is personal, and would regularly terminate with the death of the master. ^^ This result might be prevented by words in the indenture continuing the apprenticeship to the master's repre- sentatives in case of his death. ^^ There is also an implied con- 1 5 Eliz. c. 4, §§ 25-48. 8 Gray v. Cookson, 16 East, 13. 2 54 Geo. III. c. 96. » Raymond v. Miuton, L. R. 1 Exch. 8 5 Eliz. c. 4, § 36. 244. * Id. § 26. w Boast v. Firth, L. R. 4 C. P. 1. 5 See Id. §§ 25, 28, 30, 32, etc. " Baxter v. Burfield, 2 Strange, 1266. ^ Rex V. Marpjram, 5 Term R. 153 ; ^'^ Cooper v. Simmons, 7 H. & N. 707. Phelps V. P. C. & S. R. R. C!o., 99 Pa. St. In case of a master's death, his estate 108. wonld be liable for the support of the ' Rex V. St. Martin's, Exeter, 2 A. & E. apprentice. 655. (a) A contract of apprenticeship is not table ('o-operative and Industrial Society invalid by reason of the fact that the v. Casson [1891], 1 Q. B. 75. master is a corporation. Burnley Ec^ui- MASTER AND SERVANT. 317 dition that the contract shall be performed at the place where the business was carried on at the time of the execution of the indenture.^ Apprenticeship is to be treated as a fiduciary relation. The master cannot assign the apprentice to another master by his own act.2 n. Effect of the relation. — (1) Rights and duties of the master. — It is common to insert in the indentures certain promises and obligations which each of the respective parties undertakes towards the other. A question of some difficulty then arises, whether < the failure to observe these provisions is vital to the contract or only a ground of action for damages or for other relief suitable to the breach of that particular clause. The court in determining this point looks at the nature of the clause violated and the general purpose of the contract. On the part of the master it would be held to be vital that he should continue to follow the trade which he liad engaged to teach the apprentice. ^ The same rule would be applied if the masters were partners, and one of them should retire.* A partial withdrawal from business might not have that effect.^ On the other hand, misconduct by an apprentice might not deter- mine the relation.*^ Permanent desertion on the apprentice's part would suffice." (a) There might be a special clause in the inden- ture making misconduct on the part of the apprentice vital.^ The master could not order the apprentice to do an unlawful act, — as, for example, being apprenticed to a barber, to shave customers on Sunday.^ A master is entitled to the earnings of the apprentice, and can bring an action against one who entices him away or harbors him after desertion.^*^ So the master might waive the wrongful act, and simply sue the enticer for the work and labor done by the apprentice.il (2) Rights and duties of the apprentice. — These depend on the statute and the covenants in his behalf in the indenture. An apprentice can only be required to render the service for which 1 Eaton V. Western, L. R. 9 Q. B. D. " Hughes v. Humphreys, 6 B. & C. (C. A.) 636. 680. 2 Baxter v. Burfield, 2 Strange, 1266. » AVestwick v. Theodor, L. R. 10 Q. B. 3 Ellen V. Topp, 6 Exch. 424. 224. * Couchman v. Sillar, 22 L. T. N. s. 9 Phillips v. Innes, 4 CI. & F. 234. 480. 10 Foster v. Stewart, 3 M. & S. 191. 5 Batty V. Moaks, 12 L. T. N. s. 832. " Lightby v. Clouston, 1 Taunt. 112. 6 Philips V. Clift, 4 H. & N. 168. («) It is a good defence to an action master's service was an hahitnal thief, for breach of a covenant in an appienticf- Learoyd v. Brook [1891], 1 Q. B. 431. ship deed that the apprentice while in the 318 THE LAW OF PERSONS. he was indentured. ^ He has a right to be treated with kindness. The master is, to a certain extent, in loco parentis. If he were assaulted by the master, and had reasonable ground for apprehend- ing serious bodily harm, he would be justified in leaving the serv- ice.2 The courts in England will not uphold an agreement of apprenticeship which is not for the infant's benefit. Accordingly, a clause that wages which would otherwise be payable to him should not be paid if the master's business should be interrupted by a turn-out, cannot be upheld, even though he is allowed during the turn-out to be employed in other ways.^ III. Remedies for hreaeh of the agreemeyit. — In an apprentice- ship regulated by statute, the remedies for breach of the contract are generally to be sought in the statute itself. These are not merely the ordinary remedies provided in contract law, but are frequently penal, or even of a criminal aspect. Penal legislation for breach of contract would not be justifiable in case a servant were an adult. The foundation of such laws rests in the infancy of the servant and the power of the State under the jmrens patrice doctrine to regulate his conduct while in a condition of disability. IV, Dissolution. — In England, since the statute of 54 Geo. III. c. 96, this subject is placed on the footing of contract law. The contract will be dissolved upon any act on the part of one of the parties which substantially defeats the purpose of the contract. In this country, wherever the old theory of the statute of Elizabeth prevails, stringent rules concerning dissolution are to be looked for in the statute itself.* Compulsory {or parish) apprenticeship was from an early date based on an entirely different theory from that of trade apprentice- ship. It was in substance a branch of the Poor Laws. Appren- ticeship, in this aspect, was a mode of taking care of pauper children. Its compulsory features have continued down to the present time, notwithstanding the disappearance of the compul- sory element in ordinary trade apprenticeships. The earliest statute on the subject was passed in the reign of Queen Elizabeth.^ The same kind of legislation was continued down to 7 & 8 Vict, c. 101. Such children are now bound out by a board of guardians of a union or parish, while the Poor Law commissioners may pre- 1 McPeck V. Moore, ^A Vt. 269. ships cannot be cancelled or annulled ex- 2 Halliwell v. Counsell, 38 L. T. N. s. cept in the case of death, or by the order or 176. judgment of the county or Supreme Court 8 Meakin v. Morris, L. R. 12 Q. B. D. for good cause. Laws of 1871, oh. 934. 352. ^ 43 Eliz. c. 2, § 5. * Thus in New York, trade apprentice- MASTER AND SERVANT. 319 scribe the duties of the masters and the terms or conditions to be inserted in the indentures, though the rules are rather treated as directory than vital. ^ An infant parish apprentice and his master, it would seem, cannot by mutual consent vacate the indenture.^ Apprenticeship under American law. — In the various States of the Union the distinction betvvee]i vohnitary and parish ai)i>rentices is substantially recognized. Apprenticeship must, in general, be created by indenture in the form authorized by the statute of the State. If not so created, it will be, in some States, voidable and in otliers void.^ A writin"- without seal is not an indenture.* The courts differ as to the power of a father at common law to bind out the child during minority without his consent.^ Under the statutes, he must, i as a rule, execute the instrument required.^ When the statute is complied with, the articles of apprenticeship are binding on the infant.^ In some States the consent of the parent or guardian is required. This requirement would not be construed to create a personal obligation on the parent's part.^ Still, if the parent or guardian executed the instrument, he might be personally liable for the wrongful acts of the apprentice. Unless the statute were specific, it would not in general be necessary- to name the par- ticular trade in which the apprentice was bound to serve.^ I. Jiif/hts and duties involved in the relation. — As between the master and the apprentice. — (1) There are commonly in the indenture covenants on each side, — the master on his part agreeing to teach, and the servant to learn, the trade, etc. A breach of one of these promises does not necessarily subvert the relation. The covenants in that aspect are independent.^'' ' Queen v. Inhab. of St. Mary Mag- Ivins v. Xorcross, 3 N. J. Law, 977 ; dalen, 2 E. & B. 809. Balch v. Smith, 12 N. H. 437 ; Pierce v. 2 Kinc; v. Gwinear, 1 A. & E. 152 ; Massenhurfj, 4 Leigh (Va. ), 493. Remarks of Parke, B. '' Woodruff v. Logan, 6 Ark. 276 ; 3 See Lnby y. Cox, 2 Harr. 184; Bolten Kingwood v. Bethlehem, 13 N. J. Law, V. Miller, 6 Ind. 262 ; Tague v. Hay ward, 221. 25 Lul. 427 ; Fowler v. Hollenbeck, 9 8 Whitmore v. Whitcomb, 43 Me. 458. Barb. 309 ; Brown v. Whitteniore, 44 N. See People v. First Judge of Livingston, 2 H. 369; see in New York, Laws of 1871, Hill, 596. See 2 R. S. (New York) 154, oh. 93 L § 2, as to consent. The law of 1871, oh. * * Commonwealth v. "Wilbank, 10 Serg. 934, requires the parent to execute tJie & R. 416 ; Hall v. Gardner, 1 ilass. 172; indenture. Squire v. AVhipple, 1 Vt. 69. ^ Fowler v. Hollenbeck, 9 Barb. 309 ; 6 Day V. Everett, 7 Mass. 145, 147 ; People v. Pillow, 1 Sandf. 672. The New Van Dorn v. Young, 13 Barb. 286 ; Com- York statute of 1871, ch. 934, is very dis- monwenlth r. Baird, 1 Ashm. (Pa.) 267; tincA, sUtmg that it shall not be lairful to United States v. Bainbridge, 1 ilason, take the apprentice unless the statutory 71, 78. requirements are complied with. 6 Matter of McDowle, 8 Johns. 328 ; i'^ Powers v. Ware, 2 Pick. 451. 320 THE LAW OF PERSONS. (2) The age of tlic child is commonly inserted in the indenture. As a general rule, the master would not be allowed to show that the age inserted was not the true age,^ though the apprentice would.2 (3) The master has a right to the custody of the appren- tice, and may resort to a habeas corpus as against one wrongly depriving him of it,^ though the court will in some cases set the apprentice free and leave the master to his remedy by action.* (4) Tlie master is entitled to the earnings of the apprentice, but not to such as are obtained from extraordinary service for others, wholly beyond the line of his duties ; as, for example, salvage money ,^ or bounty,^ or prize money.' A master may waive this right by allowing him freely to depart from his service.^ The apprentice could not recover from his master, even upon a promise to pay him, for extra work which his indentures bound him to perform. Such a promise would be without consideration.^ (5) The master may, in the way of discipline, correct the servant in a moderate manner.^'' (6) The relation is to some extent purely personal. Thus, the agreement to teach ends with the life of the master, and does not bind his representatives. The master is only bound to use reasonable diligence in giving instruction. ^^ If he fails to do what the law requires of him, the apprentice may sue for damages.^^ (7) The master is bound to pay for necessary medical attendance in case of the sickness of the apprenticed^ (8) The master has no right to remove the apprentice to another State, unless the re- moval is provided for in the indenture, or arises from the nature of the contract, as in the case of an apprentice to serve at sca.^* But the courts of the State into which the apprentice is removed will, in their discretion, refuse, on habeas corpus, to take the apprentice from the master.^^ When the master is sued for a re- moval, he may show in his defence that the plaintiff assented.^^ It is in general true that an apprenticeship made in another State is not obligatory. So far as apprenticeship creates a status or ^ McCutchin v. Jamieson, 1 Cranch, ^'' Commonwealth v. Baird, 1 Ashm. Cir. Ct. 348; Hooks v. Perkins, Busbee, (Pa.) 267. X. C. Law, 21. 11 Wright v. Brown, 5 Md. 37. 2 Drew V. Peckwell, 1 E. D. Smith, 12 Adams v. Miller, 1 Cranch, Cir. 408. Ct. 5. 3 Commonwealth v. Beck, 1 Browne i^ Easley v. Craddock, 4 Piand. (Va.) (Pa.), 277. 423. * Commonwealth v. Harrison, 11 Mass. !■* Commonwealth v. Edwards, 6 Binn. 63. (r*32 THE LAW OF PERSONS. distinction as to the exemption of the common employer from liability to answer for an injury to one of his workmen by another, in consequence of their being workmen of difterent classes or grades.^ The American cases generally are in accord with the English view. Many of them have presented the instance of a foreman having charge of a gang of laborers, or superintending the com- pletion of some works, but having no general control over, the men.2 If, however, the person alleged to be a co-servant, was in fact the representative of the employer, being a so-called alter ego, the rule gives way, and the master is liable for the negligence of one thus substituted in his place.^ A general agent may be brought under this rule.* Some of the American courts adopt the Scotch doctrine, and hold that if one of the servants be superior to the others, without being an alter ego, the master will be liable, (a) This view does not seem to rest ujion sound principle. On the other hand, the courts in a number of the States, and those of very high authority, adhere steadfastly to the rule of alter ego, as long as the fellow-servants are in the same common employment.^ The cases on this subject are very numerous as well as conflicting. This growing divergence of judicial opinion is to some extent attributable to a decision of the Supreme Court of the United States, to tbe effect that a conductor having charge of a freight train on a railroad is not a fellow-servant of the engi- 975 ; Some.rville v. Gray & Co., 1 Mc- ^ Doughty v. Penobscot Log Driving Fherson, 768 ; cited in Wilson v. Merry, Co., 76 Me. 14-3 ; Cassidy v. Maine Ceu- L. R. 1 Sc. App. Cas. 338. tral R. R. Co., Id. 488 ; Scott v. Sweeney, 1 Wigmore v. Jay, 5 Exch. 354 ; Gal- 34 Hun, 292 ; Brazil & C. Coal Co. v. lagher v. Piper, 16 C. B. N. s. 669; Cain, 98 Ind. 282 ; Foley i;. Chicago, R. L Feitham v. England, L. R. 2 Q. B. 33. & P. R. R. Co., 64 la. 644 ; Pease v. Chi- 3 McDermott v. Boston, 133 Mass. cago & N. R. R. Co., 61 Wis. 163. The 349 ; Flynn v. Salem, 134 Id. 351 ; Hart mate and master of a ship were declared V. New York Dry Dock Co., 48 N. Y. to be fellow-servants in Mathews v. Case, Super. Ct. 460 ; Keystone Bridge Co. v. 61 Wis. 491 ; Fraker v. St. Paul M. & M. Newberry, 96 Pa. St. 246 ; Chicago & T. R. R. Co., 32 Minn. 54 ; Willis y. Oregon R. R. Co. V. Simmons, 11 111. App. 147. Ry. & Nav. Co., 11 Ore. 257; Clifford v. Murphy v. Smith, 19 C. B. x. s. Old Colony R. R. Co., 141 Mass. 564 ; 361 ; Ross v. Chicago, &c. Ry., 2 McCrary Reese v. Biddle, 112 Pa. St. 72; Kirk r. C. Ct. 235; Henry V. Brady, 9 Daly, 142. Atlanta, &c. R, R. Co., 94 N. C. 625 ; * Mitchell V. Robi-nson, 80 Ind. 281. Conley v. Portland, 78 Me. 217 ; Loughlin See also Miller v. Union Pacific R. R. Co., v. The State, 105 N. Y. 159 ; Baltimore 17 Fed. R. 67 ; Gravelle v. Minneapolis Elevator Co. v. Neal, 65 Md. 438 ; John- & St. Louis R. R. Co., 3 McCrary C. Ct. ston v. Pittsburgh & W. R. R. Co., 114 Pa. 352 ; Gunter v. Graniteville Manuf. Co., St. 443. 18 S. C. 262. ^__^_^ [n) East Tnnn., &c. Rv. Co. v. De Armond, 86 Tenn. 73 ; Northern Pac. Ry. Co. V. Peterson, 51 Fed, R. 182. MASTER AND SERVANT. 333 neer so as to preclude a recovery by the latter against the company for an injury resulting from the conductor's negligence.^ Some late cases in other courts, proceeding on a similar principle, will be found in a note.2(a) An employee who has the power to hire, direct the work of, and discharge servants engaged with him in a common employment, may properly be treated as an alter ego^ so as to make the employer liable for acts of negligence causing injury to such servants.3(6) A peculiar rule applies in cases arising under the maritime law, which imposes on the owners of a vessel the duty to render such care and medical aid to seamen employed thereon as circum- stances will admit. The master acts in such a case for the owners, and if he fails to perform this duty towards a mate, the fact that the master and mate of the ship are fellow-servants will not relieve the owners from liability to the mate.* It still remains to consider the case where the servants are under the same master but not under a common employment. In this case, the master is liable, if one through negligence injures another. The fundamental basis of non-liability of the master is that the misconduct of a fellow-servant is one of the risks which an employee assumes in fixing the rate of wages. This would not be applicable if he was injured by a servant not in the same com- mon employment, as no estimate could be made by the servant injured of the co-servant's possible negligence. 1 Chicago, Milwaukee, & S. P. II. R. Co., 78 Va. 745 ; Central R. R. Co. v. De Co. V. Ross, 112 U. S. 377. There was Bray, 71 Ga. 406 ; East Teiiii. & W.N. C. strong dissent in this case, the judges R. R. Co. v. Collins, 85 Teini. 227. standing five to four. See also Northern ^ McDermott v. Hannibal & St. Joseph Pacific R. R. Co. v. Herbert, 116 U. S. R. R. Co., 87 Mo. 285 ; Clowers v. W. St. 642. L. & P. R. R. Co., 21 Mo. App. 213 ; 2 Darrigan v. N. Y. & N. E. R. R. Co., McKune v. Cal. So. R. R. Co., 66 Cal. 52 Conn. 285 (case of a train dispatcher) ; 302 ; Patton v. Western N. C. R. R. Co., Zeigler v. Danbury & Norwalk R. R. Co., 96 N. C. 455, 462. Id. 543 ; Moon's Adm'r v. R. & A. R. R. « Scarfif v. Metcalf, 107 N. Y. 211. (a) The liability of the master to his 547 ; Loughlin v. State of New York, servant for the acts of other servants in 105 N, Y. 159 ; Hussey v. Coger, 112 the same employment is, by the later N. Y. 614 ; Gabrielson v. Waj'dell, 135 authorities, made to depend upon the char. N. Y. 1 ; Dube v. Lewiston, 83 Me. 211 ; acter of the act in question rather than Galveston, &c. Ry. Co. v. Smith, 76 upon the rank of the employee performing Tex. 611 ; Taylor r. The Evansville, &c. it. If it is done pursuant to a duty owed Ry. Co., 121 Ind. 124; Lindvall v. by the master to his servants, he is liable Woods, 41 Minn. 212. for negligence in its performance ; while if (h) Palmer v. Mich. Cent. Ry. Co., 93 it pertains only to the duty of an em- Mich. 363 ; Nix v. Texas Pacific Ry. Co., ployee, the master is free from liability 82 Tex. 473 ; Baldwin v. St. Louis Ry. for the manner in which it is performed. Co., 75 la. 297. Cf Webb i-. Richmond Crispin v. Babbitt, 81 N. Y. 516, 521 ; & Danville Ry. Co., 97 N. C. 387. Benzing v. Stein way a Sons, 101 N. Y. 334 THE LAW OF PEKSONS. Second, The alleged co-servants must be employed by the same master. Tliis point is illustrated by the case where two railroad companies use the same track, and a servant of one is injured by the negligence of the servant of tlie other. The master in such a case is liable.^ Third, If the master works with the servant, and so in a sense holds a double character, tiiat of master and co-operating work- man, his position as master prevails, and he is liable for negligence causing injury. (a) Fourth, If the rules and regulations of the master are so framed as to bring the co-servants into collision without their fault, the master is the real author of the injury, and is responsible. Effect of contributory nerjllgence on the part of the servant. — Notwithstanding that a case of injury would in its general facts make the master liable, yet if the negligence of the injured ser- vant contributes to his injury, he cannot recover. The leading instance of this kind is the case of negligence imputed to the injured servant from continuing to work without complaint with a fellow-servant after knowledge of the latter's incompetency. ^ But a single act of negligence of a servant does not necessarily charge the master with notice of his incompetency so as to make him liable.^ In other words, it might be the proper course at a trial to submit the question of negligence as a matter of fact to a jury .4^ The injured party must allege in his complaint and prove at the trial his ignorance of his fellow-servant's negligent habits,^ as well as that the master did not use care in selection, or that the servant was retained after knowledge by the master of his short- comings.^ The general principle governing the subject is, that the master is presumed to do his duty, and that the servant must rebut this presumption by showing fault on the master's part, as well as that he was free from fault." It is a rule in the United States courts that in determining the question of contributory negligence on the servant's part, regard must be had to the cir- 1 Smith V. N. Y. & Harlem E. R. Co., 5 Ir. R. (C. L.) 206; Frazier v. Penn. R. R. 19 N. Y. 127 ; Warburton v. G. W. R. R. Co., 38 Pa. St. 104. Co., L. R. 2 Exch. 30. 5 Lake Shore & M. S. R. R. Co. v. Stu- 2 Hatt V. Na3% 144 Mass. 186. pak, 108 Ind. 1. 3 Baltimore Elevator Co. v. Neal, 65 « Ind. B. & W. R. R. Co. v. Pailey, Md. 438. 110 Ind. 75. 4 Skerritt v. Scallan, 11 Ir. R. (C. L.) 7 Cahill v. Hilton, 106 N. Y. 512. 389 ; Hoey v. Dublin & B. J. R'way Co., (o) As to the liability of the master for himself, see Kaiser v. Flaccus, 138 Pa. St. the injury of a servant caused by the com- 332 ; Young v. Shickle, &c. Co., 103 Mo. bined negligence of a fellow-servant and 324 ; Rogers r. Leyden, 127 Ind. 50. MASTER AND SERVANT. 335 curastances of the case and the exigencies of his position, and that the question shonkl not be witliheld from the jury, unk^ss the evidence so conchisively establishes contributory negligence that the court would, in the exercise of a sound discretion, be compelled to set aside a verdict in the plaintiff's favor.i It only remains to notice the case of one who places himself in the position of a co-servant by volunteering to aid a servant, in the absence and without the knowledge of the master. Such a person must for the time being be deemed to be in no better con- dition than a co-servant, for the purpose of having a remedy against the master. In fact, he is in a worse position, for as to him the master is under no duty whatever, — under, for example, no duty of careful selection, of the faulty co-servant.^ A person so interfering is in law an intruder, though ])is motives may have been innocent. Legislation upon this subject is referred to in a note.3 This legislation does not, however, affect the principle of contributory negligence, which is an inference from a legal rule frequently stated in the form of a maxim, — volenti non jit injuria, (h) Acts which the master is not hound to do as hetiveen him and his servant. — It is intended to group together under this head some propositions decided by the courts adverse to the master's re- sponsibility. If the master has performed the duties imposed upon him by law, as to providing suitable tools, means of ingress and egress, etc., he is not liable for injury occasioned to the serv- ant by the happening of one of the risks attendant upon the employment. The servant is assumed to have taken that into 1 Kane v. IS^orthern Central R. R. Co., L. R. 14 Q. B. Div. 68. (a) The work- 123 U. S. 91. See also Northern Pac. man may "contract himself out of the R. R. Co. V. Mares, 123 Id. 710. Act" as to recovering compensation - Degg I'. Midland R. R. Co., 1 H. & N. which it allows for injuries sustained, 773. and thus leave himself in the same position 2 Reference should he made to impor- as before. Such a contract is not held to tant recent legislation in England materi- be void as against puhlic policy. Griffiths ally modifying the former law. This is v. Dudley, L. R. 9 Q. B. Div. 357. This the so-called " Employers' Liability Act Act does not embrace all sorts of servants, of 1830," 43 & 44 Vict. c. 42. This Act but such as are enumerated. "The Fac- is highly favorable to the workman, and, tory Acts " are also to be noted as sup- among other things, practically does away plying protection to the workman while , with the rule making a foreman a fellow- engaged in various enumerated kinds of servant with those under his directions, work. 3 & 4 William IV. c. 103 ; 7 & 8 and disentitling the latter to recover for Vict. c. 15 ; 41 & 42 Vict, c, 16, and 54 injuries sustained by the former's negli- & 55 Vict. c. 75. gence. Millward v. Midland R. R. Co., (a) Several States of the Union have (b) See Wild v. "Waygood [1S92,] 1 enacted similar though less comprehensive Q. B. 783. statutes, for the particulars of which the laws of these States should be consulted. 336 THE LA.W OF PERSONS. account in fixing the rate of wages. An instance is the break- ing away of a portion of a railway engine.^ If the servant is sick, and needs medical treatment, the master is not bound to supply it. If he does do so, and sends for a physician without the servant's direction, he will be liable to the physician, and cannot charge the expense to the servant. He is not required to certify as to the servant's character when he leaves him. If he does so, and makes defamatory statements to one who has a right to know if they are true, he will not be responsible if they are false, provided that he acts in good faith ; if he knowingly makes a false statement, he will be liable in an action for defamation. Section III. Rights of Third Persons against the Master. — The object of this section is, in substance, to consider the duties of a master towards " third persons." These so-called third persons may be of two principal classes, one being persons with whom the master has made a contract to do an act, and has also em- ployed a servant as an instrument to carry out the contract ; the other class being mere strangers. I. Where the master is under a contract. — In this case the master will be responsible as a contracting party to see that the agreement is performed. If he makes use of servants for this purpose, he is still bound to see that the contract is carried out, and is liable for their wilful and unauthorized acts violating tlie contract. An example is found in the case of a railway, where a conductor wilfully stops a train and retards the journey of the passengers.^ The same principle has been applied to acts of violence committed by conductors, stage-drivers, and the like, upon passengers, the master being under an implied contract to treat a passenger while under his care with civility and propriety. The case accordingly is not at all analogous to that of wilful injuries inflicted by the servants of carriers upon strangers.^ («) 1 Saxton V. Hawksworth, 26 L. T. N. s. 4 Gray, 465 ; Mil. & Miss. R. R. Co. v. 851. See also Hudson v. Ocean Steamship Finney, 10 Wis. 388 ; Bryant v. Rich, 106 Co., 110 N. Y. 625. Mass. 180. This distinction was lost sight 2 Weed V. Panama R. R. Co., 17 N. Y. of in Isaacs v. Third Ave. R. R. Co., 47 362 ; Blackstock v. N. Y. & Erie K. R. N. Y. 122 ; bnt the error was rectified in Co., 20 N. Y. 48. Stewart v. Brooklyn R. R. Co., 90 N. Y. 8 Goddard v. Grand Trunk R'way, 57 588. Me. 202 ; Moore v. Fitchburg Railroad, {n) Palmeri v. Manhattan Ry. Co., ful acts of the servants of a sleeping-car 133 N". Y. 261 ; Dwinelle v. N. Y. Cent., or parlor-car company, wlien done in the &c. Ry. Co., 120 N. Y. 117; Mulligan performance of the duties and obligations V. N. Y. & Rockaway Beach Ry. Co., 129 of the railroad company under its contract. N. Y. 506. A railroad company is liable Dwinelle v. N. Y. ('ent. Ry. Co., siipra ; to a passenger for the negligence or wrong- Thorpe v. N. Y. Cent. Ry. Co., 76 N. Y. MASTER AND SERVANT. 337 II. Duties of the master toivards strangers. — (1) It lias already been stated that a distinction is to be taken between a servant and a contractor, and the characteristics in each case have been [)ointed out. It still remains to consider in more detail the dif- - ference between the liability of a master and that of one wlio employs a contractor. According to the present law, if an employer contracts with a person to do a piece of work which it is lawful to do, and wliich the employer is not under a duty to perfoi-m in a ])articular manner, and the contractor in turn employs sub-contractors or servants, the original employer is not liable to a third person for an injury sustained from the negligent act of the sub-conti-actor or servant of the contractor. The remedy in such a case is to be sought against the contractor or his subordinates, as the facts of the case may require. This doctrine is inconsistent with some early decisions, which are accordingly overruled. The most noted of these is Bush v. Steinman.^ In that case A., being the owner of a house, con- tracted with B. to repair it for a fixed sum. B. made several sub- contracts, and D., the servant of one of the sub-contractors, negligently deposited lime in the road in front of A.'s premises, whereby the plaintiff, E., was injured. Tlie court held that A. was liable as being substantially the master of D., the wrongdoer. The case is not only abandoned in England, but discarded in this country .2 (a) If, however, the contractor does not act as such, but places him- self in the position of a servant for the time being, the employer will be a master and responsible.^ The contractor emploving servants is to be regarded as a master, and liable for their acts in the same way. There is a qualification to the rule that an employer is not liable for the acts of a contractor. The act to be done must not be unlawful or illegal. If it be of that nature, tlie contractor and employer will be jointly liable as wrong-doers.* {h) 1 1 Bos. & P. 404. of N. Y., 8 N. Y. 222 ; Kelly v. Mayor, 2 Steel V. South Eastern Railway Co., &c. of N. Y., 11 N. Y. 432. 16 C. B. 550 ; Reedis v. London & N. W. 3 Sadler v. Henlock, 4 Ell. & B. 570 ; R'way Co., 4 E.xch. 244 ; Hobbit v. Lon- Holmes v. Onion, 2 C. B. N. s. 790. don & N. W, R'way Co., 254 ; Blake v. * Ellis v. Sheilield Gas Co., 2 Ell. & B. Ferris, 5 N. Y. 48 ; Pack v. Mayor, &c. 767 ; Clark v. Fry, 8 Ohio St. 358. 402; Penn. Co. v. Roy, 102 U. S. 451; R. R. Co., 87 Va. 711; Rome, &c. Ry. Williams v. Pullman Car Co., 40 La. Ann. Co. v. Chasteen, 88 Ala. 591 ; Powell v. 417. Construction Company, 88 Tenn. 692 ; («) Long V. Moon, 107 Mo. 334; Charlock v. Freel, 125 N. Y. 357. Hackett v. The Western Union Tel. Co., (b) If also the employer excrci.se con- 80 Wis. 187 ; Bibb's Adm'r v. N. & W. trol over the workmen who obey his orders, 22 338 THE LAW OF PKKSONS. The employer must not be under a legal duty to perform the act in a particular way. Such a duty may arise in a number of ways. It may be imposed by statute, — as, for example, upon a village or city, to properly care for its streets. The corporation under such circumstances cannot shift off its legal obligation by em[)loying a contractor to do the svork in its stead. ^ It may be regarded as a settled rule that if a duty be imposed by statute as to the use and enjoyment of property, the owner cannot escape from the duty by employing a contractor in his stead.^ The duty may be imposed by a general rule of law. An example is found in the obligation of an owner of land not to cast out, by blasting or otherwise, rubbish or stone upon his neighbor's land to his injury. The duty is summed up in a settled legal maxim that " every one must so use his own as not to injure anothci-'s." ^ There is a difference of opinion upon the point whether the owner can escape responsibility in such a case by employing a contractor. It has been held by a divided court in New York that he can, though the decision was opposed to the earlier authorities.* The distinction between a statutory duty and a common law duty taken in these cases appears to be over subtle and without solid foundation in principle. It makes an obligation turn upon an immaterial point, — viz., how it originates, — rather than upon the intrinsic nature of the duty or obligation itself. Every legal duty, no matter how it originates, is personal, and cannot be shifted off upon others.^ In another class of cases the duty is derived from the character of the act to be done. It may have in it an element of danger to third persons. Now, if A. employs B. to do such an act, he must see that it is so performed as to cause no injury to a third ])erson, not himself in fault. But the injurious act must be closely connected with the injury itself. If, therefore, the contractor, acting negli- gently, should injure a third person by means of a collateral act, — that is, one not directly embraced in the original employment, 1 Storrs w. CityofUtica, 17N. Y. 104 ; * McCaffeity z;. S. D.&P. M. R. U. Co., Conrad v. Ithaca, 16 Id. 158 ; Detroit v. 61 N. Y. 178, followed without discu.ssioii Corey, 9 Mich. 165; Requa v. City of in Ferguson r. Hubbell, 97 N. Y. 507, 510. Rochester, 45 N. Y. 129. 8 in Bower v. Peate, L. R. 1 Q. B. Div. 2 Dorrity v. Rapp, 72 N. Y. 307. It 321, it is said that it can make no dider- seems impossible to reconcile this case with ence in such a case whether the ol>ligation Herrington v. Village of Lansingburgh, was imposed by statute or existed at law, 110 N.' Y. 145. p. 328. 3 Hay V. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., Id. 163. and over the mode of doing the work, he 416 ; Mumby v. Bowden, 25 Fla. 454 ; will be responsible for their negligent acts Railroad Company v. Hanning, 15 AVall. Reynolds v. Braithwaite, 131 Pa. St. 649. MASTER AND SERVANT. 339 — the employer would not be liable. This view is adopted in a number of cases both in England and in this country .^ (a) Mr. Pollock, in his work on Torts, m speaking of the duties im- posed by law on the occupiers of buildings, etc., says that the duty " goes beyond the common doctrine of responsibility for servants ; for the occupier cannot discharge himself by employing an inde- pendent contractor, however careful he may be in the choice of that contractor," ^ The result is that in all cases where one is under a duty, whether originating in statute or some rule of law, or even by contract, he must see that the duty is properly discharged, and he cannot ab- solve himself from it by delegating the performance of the duty to another, be he contractor or not. A. may assign his rights under a contract, but how can he assign his duties and escape liability ? It is plain that he caimot. Neither can he delegate the discharge of them to others and escape liability. A fortiori he can neither transfer nor delegate duties imposed upon him by a general rule of law or by statute. (2) The employment of the servant must have been voluntary. The question as to the liability of an alleged master sometimes arises where, for example, a local law requires a ship owner or master to take a licensed pilot, and he performs his duties so negligently as to injure another ship. The English law holds, as this is a compulsory service, the owner is not liable.^ The Supreme Court of the United States, sitting as an Admiralty Court, has held the owner liable, not by a rule under the law of master and servant, but under a great principle of general applica- tion that " every man should so use his own as not to injure another's." 4 The English court departs from its rule in case of pilotage through the Suez Canal, holding that the pilotage rules there are not in a legal sense compulsory, and that the case then falls under the law of master and servant,^ (3) In order to make a master liable for the act of his servant, it must be embraced within the scope of the employment. The great inquiry in this connection is not what authority the servant 1 Pickard v. Smith, 10 C. B. n. s. 2 PoUork on Tnrts, p. 414. 470, 480 ; Bower v. Peate, L. R. 1 Q. B. 3 The Royal Cliarter, L. R. 2 Adm. Div. 321; Tarry v Ashton, Id. 314; Fran- 362. cis V. Cockrell, L. R 5 Q. B. 501, 515, 516 ; < The China, 7 Wall. 53. Dalton V. Angus, L. R. 6 App. Case.s, 740 ; * The Guy Mannering, L. R. 7 P. D. Hughes V. Percival, L. R 8 App. Cases, 132. 443 , Gorham v. Gross, 125 Mass. 232, 240. {a) See Railroad Company v. Morey, Mass. 123 ; Woodman v. Met. Ry. Co., 47 Ohio St. 207 ; Atlanta Ry Co. v. Kim- 149 Mass. 335. terly, 87 Ga. 161 ; Curtis v. Kiley, 153 340 THE LAW OF PERSONS. assumes, but what power the master has conferred upon him. This is the meaning of the expression the " scope of the employ- ment." This authority may be conferred by express words, or derived by implication from words or acts. The servant will have such incidental powers as are usual and reasonable to carry into effect the substantive power granted. Thus, if the rules of an employer require the servant to remove from his premises one who is intoxicated, the servant has the incidental power to determine whether a person supposed to come under the rule is in fact intoxicated. If he commits an error of judgment in deciding the point, the master will be responsible to a person thereby injured. It would be quite different if he knew he was sober, for in that case the servant would be plainly acting beyond the scope of his employment. There was at one time an attempt made by the courts to estab- lish a distinction between wilful and negligent acts. This distinc- tion involved a fallacy, and has been abandoned. The prevailing view now is that it is quite immaterial whether the act be negli- gent or wilful, the true test of liability in all cases being "the scope of the employment." The acts done will be in some instances of such a nature that they will be evidence of acting within the scope of employment to be submitted as a question of fact to a jury. The instances to which these rules have been applied are very numerous, and some of them may be cited as illustrations. It has been decided that a master is civilly responsible for the fraud of a servant acting in the course of his employment,^ even though the act is of so gross a nature as to be a felonious crime.^ He is also liable for such torts as false imprisonment ^ (a) or mali- cious prosecution (even though the employer be a corporation),^ or an assault and battery,^ or arrest and taking into custody on a charge turning out to be unfounded ; ^ also for the unlawful con- version of property." Likewise he is responsible for the negli- gence of his servants. This embraces the most common class of cases, and very frequently occurs in the use of machinery or the 1 Coleman v. Riches, 16 C. B. 104. ^ Walker v. South Eastern R, R. Co., 2 Osborn v. Gillett, L. R. 8 Exch. 88. L. R. 5 C. P. 640. 3 Goff V. Great Northern R'way Co., 3 ^ Moore v. Metropolitan R'y Co., L. R. El. & El. 672. 8 Q. B. 36 ; Eastern Co. R'y Co. v. 4 Edwards u. Midland R'way Co., L. R. Broom, 6 Exch. 314. 6 Q. B. D. 287. "^ Giles v. Taff Vale R'y Co., 2 E. & B. 822. (n) Tf the act of the servant is not in not liable. Mulligan v. N. Y. & Rock- furtherance of his master's interests, but away Beach Ry. Co., 129 N. Y. 506 ; for the supposed benefit of the community Abrahams v. Deakin [1891], 1 Q. B. Ce. g., procuring an arrest), the master is 516. MASTER AND SERVANT. 341 driving and management of carriages and other vehicles, etc. In all such cases, the leading inquiry will be whether the act was done within the scope of the servant's employment.^ A few illustrations will suffice. If the servant of a coal mer- chant, in delivering coal, should take up a plate on the sidewalk in a highway into which to shovel the coal, without warning a passer-by, and the latter, while exercising due care, should fall in and be injured, the master would be liable, as the act was done within the scope of the servant's employment, though done negli- gently .^ So the act of a driver of an omnibus in striking a pas- senger with his whip is presumptively an act of negligence for which the master is responsible.^ So the employment of a tipsy man, who commits an act of negligence, is negligence by the master, for which he is responsible.* Under this principle the master might be responsible for an illegal act, done apparently within the scope of the servant's authority.^ If, however, the act done be without the scope of the em- ployment, the master is not liable. The action in that case will only lie against the servant. Some illustrations are subjoined. A master having a private lavatory directed his clerks not to use it. In his absence, one of them violated this direction, and left the water flowing through the faucet so that an adjoining owner was injured. The master was not liable.^ (a) Again, a servant driving a carriage along a highway, wilfully drove against another carriage. The master was not liable.' Where also an injury was caused to a third person by a servant uHing due care, — as, for example, where horses under his charge ran away with- out his fault, — the master was not liable.^ Reference should now be made to a class of cases where a ser- vant, though in the general employment of a master, leaves the service temporarily to subserve some purpose of his own ; or, it may be, for the time being is relieved from actual service by the master. In cases such as these, the acts of the servant cannot be said to be done within the scope of his employment. Although, in 1 Moebus V. Herrmann, 108 N. Y. 6 Att'y-Gen'l v. Siddon, 1 C. & J- 349. 220. 2 Whiteley v. Pepper, L. R. 2 Q. B. 6 Stevens v. Woodward, L. R. 6 Q. B. D. 276. D. 318. 3 Ward V. General Omnibus Co., 42 ^ MM;uuis i-. Crirkett, 1 Ea.st, 106. L. J. N. S. (C. P.) 265. 8 Holmes v. ]\Iatlier, L. R. 10 Exch. * Wan.stall v. Pooley, 6 CI. & F. 910 ?i. 261 ; Crofts v. Waterhouse, 3 Ring. 319. (a) The master would be liable if the the cour.se of their employment. Ruddi- lavatory were for the use of the clerks in man v. Smith, 60 L. T. N. s. 708. 342 THE LAW OF PERSONS. one sense, he may be in his master's service, the act in question is not performed in his service, but is his own act as truly as if he were not a servant at all. Accordingly, a master is not liable, even though the servant was without authority making use of liis master's property, — as, for example, driving his vehicles. Thus, where a \vine merchant sent his servant to deliver wine and bring back empty bottles, and on his return he drove off in a dif- ferent direction on a journey of his own, the master was adjudged not to be liable for his acts.^ If the facts of the case show that the relation between two parties is rather that of bailor and bailee than of master and servant, there will be no liability for negligence on the i)art of the proprietor. Accordingly, if one owns a cab which he lets to a driver for a weekly payment, the horse, harness, and whip being provided by the driver, the owner of the cab having nothing to do with the business except to receive the weekly payment, he will not be the master of the driver.^ It might be a case of master and servant if the owner of the cab had supplied the horse as well.^ (4) The master must owe a duty to the person injured by the servant, in order that such person may have an action against the master on account of the servant's negligence. This point is well illustrated by a case where a person got into a cart driven by a servant, but without the permission of the owner, and was driven so carelessly that he was thrown out and injured. The master was held not to be liable.* The same conclusion was reached where one, by the consent of a conductor of a freight train on a railway, rode on a car without payment of fares, pas- sengers being forbidden by the regulations of the company from riding on such a train.^ It is a settled principle of the common law of England that if trustees are appointed by statute to do certain acts of a public nature, — e.(j.,to lay out and repair highways, — and they employ servants, the trustees are not responsible, nor are the funds which they administer chargeable, for injuries caused by the negligence of the servants. The great rule of the law of master and ser- 1 Storey v. Ashton, L. R. 4 Q. B. 476 ; the owner was held liable as a master for Rayner v. Mitchell, L. R. 2 0. P. D. the driver's negligence. Some remarks 857 ; Mitchell v. Crassweller, 13 C. B. therein as to the effect of certain Acts 237. Sleath v. Wilson, 9 C. & P. 607, to of Parliament on this question have been the contrary, is not followed. latterly disapproved and need not be stated. 2 King V. Spiirr, L. R. 8 Q. B. D. 104. * Lyso v. Newbold, 9 Exch. 302. 3 This was so ruled in Powles r. Hider, 5 paton r. 0. L. & W. R. R. Co., 57 6 E. & R. 207, and Venables v. Smith, N. Y. 382 ; Morris v. Brown, 111 N. Y, L. R. 2 Q. B. D. 279. In these cases 318, 330. MASTER AND SERVANT. 343 vant — respondeat superior — is not ai)i)Iicable.i The trustees are only liable for personal negligence or omission of duty.-(r/) The knowledge of the servant may in certain cases be imputed to the master so as to make him liable for negligence, even though there were no actual neglect on his part. There are, for example, frequently cases in law where it is essential to an action for negligence to prove that knowledge of a certain state of facts existed, and that, after this knowledge, due care and caution was not exercised. To make out this knowledge, it may be sought to show that the servant had it, and that he was under the circumstances so identified with the master that his knowl- edge was legally that of the master. An instance is an action against the master for keeping a vicious dog, whereby the plain- tiff was injured. If it be proved that the servant having charge of the dog had knowledge of its vicious disposition, the master will 1)0 held to have the knowledge, and therefore to be liable/^ The servant must, however, have the animal in charge. It will not be sufficient to bring home the knowledge of vicious propensities to other servants,* unless to one who had such general management or co7itrol as to include the charge of the animal. Sectfon IV. Rights of the Master agaiiist Third Persons. — These may be summed up as a right to be indemnified for loss of service occasioned by their wrongful acts. The leading acts of this kind are torts committed upon the servant, such as assault and battery and false imprisonment, also enticement from service, and seduction of a female servant. (1) Torts committed against the servant. There may be two rights invaded in such a case : one, that of the servant himself, who may sue for the personal wrong ; the other, that of the master for the loss of service sustained by him. Thus, if the servant were wrongfully imprisoned, be it but for an hour, the mas- J Harris w. Baker, 4M. &S. 27; Hum- '^ Baldwin v. Casella, L. R. 7 Exch. phreys v. Mears, 1 M. & R. 187 ; Hall v. 325. Smith, 2 Bing. 156 ; British Cast Plate * Stiles v. Cardiff Steam Nav. Co., 33 MTrs V. Meredith, 4 Term R. 794 ; Dun- L. J. x. s. (Q. B.) 310. But see Apple- can V. Findlater, 6 CI. & F. 894. bee v. Percy, L. R. 9 C. P. 647, for a more 2 Hall V. Smith, supra; Hannon v. relaxed rule. Agnew, 96 N. Y. 439 ; Walsh v. Trustees of N. Y. & B. Bridge, Id. 427, 439. {a) A public charity has been held not Tassel) v. Manhattan, etc. Hospital, 39 subject to the law of respondeat superior N. Y. St. Rep. 781 ; Harris »'. Woman's where due care is exercised in the selection Hospital, 27 Abb. N. C. 37. Contra, of its servants. McDonald v. Mass. Gen- Glavin v. Rhode Island Hospital, 12 R. I. eral Hospital, 120 Mass. 4-32; Fire Ins. 411. Patrol V. Boyd, 120 Pa. St. 624; Van 344 THE LAW OF PERSONS. ter would have a cause of action. ^ No action will lie for injuries causing the servant's immediate death.^ If the servant were injured by a culpable failure on the j^art of a carrier to carry him safely, the master would in general have no cause of action, because he is not a party to the contract of transportation.^ If, however, the injury had been occasioned by the cars of another company negligently colliding with those on which the servant was travelling, the cause of action would not be on contract, and the master could sue.* (2) Seduction of a female servant. This subject has already been considered in its application as between father and daughter. Only a few words are necessary in reference to an action by a master, not a father and not standing in loco pareritis. A master may maintain this action for loss of service, though not related by blood.^ The measure of damages in this class of cases will in general be confined to the loss actually sustained, though it has been decided in the case of an adopted daughter who was also a servant that damages beyond the mere loss of service might bo awarded.^ (3) Enticement of a servant. A master has an action against one who, knowing of the relation between him and his servant, entices the latter to leave him. If the cnticer did not know the relation at the time, he will be liable if he continue to employ the servant after knowledge.'' (a) In such cases the con- tract between master and servant must be a valid one,^ and may be either express or implied.^ The cause of action for enticement consists in wrongfully and maliciously breaking off the relation between the master and the servant, to the injury of the former. It has been supposed by some jurists that the action was derived from the provisions of a statute passed in the reign of Edward III.,^*' called the " Statute of Laborers," and that it must be confined to servants of an inferior grade, referred to in that statute.^^ It is now settled in the English courts that it will include persons in general wdio have entered into a contract to render exclusive personal service, even of a high grade, such as that required of a singer of operatic music. The 1 Woodward v. Washburn, 3 Den. 369. • Blake v. Lanyon, 6 Term K. 221. 2 Osborn v. CnWeti, L. R. 8 Exch. 88. 8 Sykes i'. Dixon, 9 A. & E. 693. 8 Alton V. Midland Railway Co., 19 ^ Evans v. Walton. L. R. 2 0. P. 615. C. B. N. s. 213. 1'' 25 Edw. III. Stat. I. * Berriiiger v. Great Eastern Railway ^^ See the leai-ned opinion of Cole- Co., L. R. 4 C. P. D. 163. RIDGE, J., in Lumley v. Gye, 2 Ell. & B. 5 Fores v. Wilson, Peake, 55. 216, at pp. 254-269. 8 Irwin V. Dearman, 11 East, 23. (a) De Francesco v. Barnuin, 63 L. T. N. s. 514. MASTER AND SERVANT. 345 theory of the action is, that persuading a pei-son to break off a valid contract is actionable, even though there is a remedy against the contracting party himself. Another form of statement of a more general nature is, that whenever a man does an act wliich in law and fact is a wrongful act, and such an act may, as a natural and probable consequence of it, produce injury to another, and which in the particular case does produce such an injury, an action will lie.i This principle is none the less applicable because the wrongful act has as a natural consequence led to the wrongful act of another, such as a breach of duty or contract. It will be im- material that a person induced to break a contract, etc., is himself a free agent, and need not have listened to the enticement, and that he is himself liable. The ground of action against the enticer is that his own act is wrongful, and has been followed as a conse- quence by the wrongful breach of contract or of duty on the part of the person enticed. This principle has from time immemorial been applied to one who is successfully enticed to commit a breach of duty involving loss of service, such as harboring or seducing a wife, or seducing a daughter or servant. It is but extending the principle to an analogous case when applied to a breach of con- tract.2 There are cases which confine the remedy, where a contract is broken by the wrongful act of another, to an action against the person contracting. These cases must be deemed to be over- ruled.^ Both servant and enticer may be sued together in a single action.^ Section V. The Relation of the Servant to Tldrd Persons. — I. His rights. — A servant has no cause of action against one who injures his master, resembling the right of a master to sue for loss of service. No decisions have been had upon the point whether he could sue a third person who wrongfully induced the master to discharge him. The principles already stated in the case where the master sues an enticer for the loss of service of his servant, would seem to be broad enough to cover this case.^ The servant may defend the master when unwarrantably attacked, and may 1 Ashby ?;. White, Ld. Raymond, 938 ; ^ U\m\py v. Gyp, 2 Ell. & B. 21G ; 1 Smith's Leading Cases, 105. This was Bowen v. Hall, L. R. 6 Q. B. D. 333 an action by one who offered to vote at an (Conrt of Appeal). In this last case the rule election for members of Parliament, was applied to one who agreed to make against the inspector, who refused his brick for another exclusively lor five years, vote. He was successful. The decision ^ Such a case is Vicars v. Wilcocks, 8 met with great opposition, and aroused so East, 1. That case is overruled, .so far as much feeling that some parliamentary de- it conflicts with the jiriuciple stated in the bates upon it were published in a separate text, in L. R. 6 Q. B. D. 338, 339. volume (a. d. 1705), with hostile resolu- * Bowen v. Hall, supra. tions by the House. The case is now ^ See the cases cited under Section IV., accepted law. siqjra. 346 THE LAW OF PERSONS. justify an assault and battery committed by him so far as may be necessary for that purpose. II. His liahilltij. — (1) In cases where the servant has done a wrongful act, whether wilful or negligent, in the course of his employment or otherwise, he is liable to the injured party for the loss sustained, as being the principal author of the wrong. If his Avrongful act be such as to make the master liable, the injured party may sue either the mastei- or servant, or may sue both in a single action, (a) So, if a servant, by his negligence, injure a fellow-servant in such a way that no action can be brought against the master, the one servant may, nevertheless, be sued by the other. 1 {h) The struggle usually is to maintain an action against the master, if possible, on account of the greater probability in that case that a judgment for damages will be collected. (2) A servant will not be excused for the commission of a wrongful or illegal act on the ground that it was directed by the master. If the act be a fraud, he will be liable in damages, though his participation in the act were unknown to the party injured.^ The same rule is applied where he converts the property of an- other to the master's use and benefit.^ So if he aid his master in the commission of an act prohibited under a statutory penalty, though the latter may be charged as principal, the servant may be convicted of aiding and abetting him.* Acts of service done abroad, brouc/ht in question here. — This subject is affected by the law of nations. Where a citizen of this country is prohibited by law from making a contract to serve a foreign state, and notwithstanding this goes abroad and enters into the service of the foreign state, and there does an act as servant which is perfectly lawful in the state where it is per- formed, he cannot be made liable on his return to this country to any person claiming to be injured by his act, on the ground that his entering into the foreign service was unlawful, and that there- fore he was such a wrongdoer as to be responsible in damages.^ 1 Oshorne v. Morgan, 130 Jlass. 102 ; ^ Stephens v. Elwall, 4 M. & S. '259 : overruling Albro v. Jaqiiith, 4 Gray, 99. Crnncli v. White, 1 Bing. N. C. 414. See also Swainson v. N. E. Railway Co., * Wilson v. Stewart, 3 B. & S. 913. L. R. 3 Exch. D. 341, 343 ; Hinds v. Har- ^ Dohree v. Napier, 2 Bing. N. C. 781. bon, 58 Ind. 121; Griffiths v. Wolfram, The defendant, an English subject, entered 22 Minn. 185. into the service of the Queen of Portugal, 2 CuUen u. Thomson's Trustees, 4 Macq. contrary to the "Foreign Enlistment Act," H. L. Cas. 424 at p. 441. and, as her servant, did the act com- plained of. {n) For a distinction, as to a servant's i'ea^auce, .see ]\Iurray v. Usher, 117 N. Y. liability, between misfeasance and non- 542. {h) Hare v. IMcIntire, 82 Me. 240. ll\Z:i.:i AND SEICVANT. 347 Gratuitous service. — It is a general rule of law, that a jjcrson rendering service with the knowledge or consent of an employer is entitled to compensation. If the rate is not stipulated, a rea- sonahle compensation will be implied. This, as a o-eneral rule, admits of a number of important exceptions. A person rendering service may stipulate that payment shall depend on a contingency. If the contingent event does not hap- ))en, nothing can be collected. An example is the case where several persons compete as architects for employment, and jiresent plans, each agreeing that no payment is to be made to him unless his plan is adopted. The nature of the work done may be of such a kind that com- pensation is not nsually expected, such as the friendly act of a neighbor in saving property endangered by fire or other risk. Still, this would be but a presumption, and it might be shown that when the service was entered upon, compensation was mutually expected to be paid and received, in which case it could be enforced. The person rendering the service may be under a le(/al duty to furnish it, such as that of a fireman employed by a city to save property or lives endangered by fire. In such a case an express promise to pay for the services, though made in advance and as an inducement to undertake the service, would be inoperative and void, as being without consideration. i A relation may exist between tlie parties which usually pre- cludes compensation, such as that of a child living in a father's family receiving board, clothing, etc., and at the same time ren- dering acts of service. This relation may exist after majority, but is more usual in the case of a daughter than a son ; and it will more readily be inferred in the case of the former than the latter that no compensation is to be paid. This is a matter of presumption, and the presumption may be rebutted by evidence that compensation was expected to be received and paid. The presumption of gratuitous service is not confined to children, but will be extended to cases of other persons received into a family in the same general way, such as nephews, nieces, ado]>ted children, step-children, parents, etc.^ Some courts hold that the 1 Day V. Putnam Ins. Co., 16 Minn. Adams' Adm., 23 Ind. 50; :\Iiller jj. :Mil- 408; Russell v. Stewart, 44 Vt. 170. ler, 16 111. 296 ; JInnger v. Munger, 33 2 The general rule is sustained in Up- K. H. .581 ; Putnam v. Town, 34 Vt. 429 ; dike V. Titus, 13 N. J. Eq. 151 ; State v. Perry v. Perry, 2 Duvall (Ky.), 312 ; Con- Connoway, 2 Houst. (Del.) 206; Hart- ger v. Van Aernum, 43 P>arb. 602; Leidig man's Appeal, 3 Grant's Cases (Pa.), 271. r. Coover's Ex'r, 47 Pa. St. 534 ; Cooper ». Cases where a child has continued, after Cooper, 12 111. App. 478. The case of majority, to live with a parent ; Adams v. granddaughter and grandfather : Butler ». 348 THE LAW OF PERSONS, presumption against compensation can only be rebutted by proof of an express agreement, while others maintain that an inference in favor of compensation can be drawn from circumstances and from the fact that compensation is expected by each party to be paid. Reference is made to authorities in the note. It should be added that, according to some authorities, a minor who resides without paying board in a family to which he is not related cannot recover for services without proof of an express promise to pay.^ There is a class of cases where it appears that parties holding the apparent relation of master and servant, were mutually mis- taken as to the existence of the relation, the supposed servant being falsely assumed to be under a duty to render service witli- out compensation. In such a case, should the error be discovered, an action would not lie for past services. Illustrations in the law books are the falsely assumed relation of master and slave,^ or of master and apprentice,^ or of husband and wife.* If, however, the person who had the assumed right to unremunerated service Slam, 50 Pa. St. 456 ; Davis v. Goodenow, 27 Vt. 715. But see Hauser v. Sain, 74 N. C. 552. That of son-in-law: Lovet V. Price, Wright (Ohio), 89 ; Sprague v. Waldo, 38 Vt. 139. But see Aniey's Ap- peal, 49 Pa. St. 126 ; Schoch v. Garrett, 69 Pa. St. 144. That of brother and brother: Boweu v. Bowen, 2 Bradf. 336. That of stepfather and stepchild : Gerdes V. Weiser, 54 la. 591 ; Smith v. Bogers, 24 Kan. 140 ; Lantz v. Frey, 14 Pa. St. 201 ; s. C. 19 Id. 366. There is no dis- tinction between adopted and other chil- dren. Lunay v. Vantyne, 40 A^t. 501. The case oi first cousins : Neal v. Gilmore, 79 Pa. St. 421. That oi wistress clniming compensation for services from her lover : Walraven v. Jones, 1 Houst. (Del.) 355; Swires v. Parsons, 5 Watts & S. 357. That the presumption again.st compen- sation may be rebutted by evidence that both parties expected that it would be made, see Partlow v. Cooke, 2 R. I. 451 ; Guenther v. Birkicht, 22 Mo. 439 ; Green V. Pioberts, 47 Barb. 521 ; Friermuth v. Friermuth, 46 Cal. 42. Some courts re- quire very clear and exact proof. Less strict proof seems to be re(|uired in New York. Van Schoyck v. Backus, 9 Hun, 68 ; Markey v. Brewster, 10 Hun, 16 ; Moore v. Moore, 3 Abb. App. Dec. 303. See also Briggs v. Briggs, 46 Vt. 571 ; Smith v. Denman, 48 Ind. 65. It is said that the claim of a son for services ren- dered by him after he attains majority is not regarded with favor by the Pennsyl- vania court. Walker's Estate, 3 Ravvle, 243. There should be clear and unequiv- ocal proof that the relation w-as not that of parent and child but of master and servant. Candor's Appeal, 5 Watts & S. 513 ; Steel v. Steel, 12 Pa. St. 64. Pellage v. Pellage, 32 Wis. 136, requires an ex|)rc'ss agreement. See also Wells v. Perkins, 43 Id. 160. Neel's Adm. v. Neel, 59 Pa. St. 347, applies the same rule to all classes of relatives, though the relationship be even more remote than that of uncle and nephew. See also Scully V. Scully, 28 la. 548 ; Harris v. Currier, 44 Vt. 468 ; Shirley v. Bennett, 6 Lans. 512. The presumption is not so strong against compensation in the case of remote relatives. Thornton v. Grange, 66 Barb. 507. The presumption does not apply as to cousins related by affinity, Gallagher v. Vought, 8 Hun, 87. 1 Windland v. Deeds, 44 la. 98 ; Smith V. Johnson, 45 Id. 308 ; Thorp v. Bate- man, 37 Mich. 68. 2 Livingston v. Ackeston, 5 Cow. 531. 3 Jlattby V. Harwood, 12 P.arb. 473. * Cropsey v. Sweeny, 27 Barb, 310. MASTER AND SERVANT. 349 knew when it was being rendered that the relation supposed to require the service did not exist, he should be held liable, as there would be nothing adverse to the principal rule governing this sub- ject, that one who knowingly receives the services of another of a nature beneficial to himself, impliedly promises to pay for them. A word may be added as to a "volunteer servant." This expression includes one who, perhaps observing that the servants of a master find a difficulty in the performance of an assigned task, volunteers to aid them in the absence of the master. In such a case no claim can be made for compensation. There is, however, a distinction between a mere volunteer who takes upon himself all the risks of the employment, and one who assists with the master's consent for the purpose of expediting the delivery of his own goods, or the like. In this case the transac- tion is of common benefit to both parties, and prevents him from being regarded as a volunteer. He is not a co-servant^ and would have an action against the master if he were injured by the negli- gence of those whom he aided, or if the premises on which he was invited to go in order to render the service were in an insecure condition through the neglect of the person who gave the invita- tion.i 1 Wright V. London & N. W. R. R. with Deggw. Midland R. R. Co., 1 H. &X. Co., L. R. 1 Q. B. Div, 252 ; s. c. L. R. 773 ; PoUer v. Faulkner, 1 B. & S. 800. 10 Q. B. 298 ; Holmes v. N. E. R. R. Co., In the two last cited cases, the party was L. R. 4 Exch. 254. Compare these cases a mere volunteer and without remedy. CHAPTER XT. CORPORATIONS. DIYISION I. — General Rules Applicable to all Corporations. Section I. Classification of Corporations. — A corporation is an artificial person, created by law. having a continuity of existence, either definite or indefinite, and capacity to do authorized acts, and capable, however numerous the persons that compose it may be, of acting as a single individual. The leading points in this definition are (V) that a corporation is an artificial person : (2) that it is created hy law., and not by contract: (3) that it has a continuity of existence. This does not necessarily mean that it has a perpetual existence. It may be created to continue for thirty or fifty or other number of years. All that is meant is that, while it lasts, its existence is continuous, and made so by a mode of succession of members established by law. (4) It has capacity to act as a single person. Nothing is so characteristic of a corporation as the fact that it is made by law an artificial person. It has a standing in court as a person. The word " person " in a statute will ordinarily include a corporation.^ Nothing of this kind can be attributed to other assemblages of natural persons. The members of a partnership cannot by con- tract make tliemselves a person. Should they adopt a conventional name they could not make contracts or do other acts in that name. They could not sue in that name, while corporations not only may, but in general must, sue and be sued by a name given to them by law. The ordinary consequences of personality follow. The agent of a corporation is not the agent of its members.^ The individual members do not own the property.^ They cannot transfer it to third persons. The corporation, as a legal person, manages, owns, and can alone transfer the property. Such an expression as a " living person " may also include a corporation.^ '■ People V. Trinity Church, 22 N. Y. Mickles v. Rochester City Bank, 11 Paige, 44, 57. lis. 2 Moffat V. Winslow, 7 Paige, 124. * La Farge v. Exchange Fire Ins. Co., 3 Wilde V. Jenkins, 4 Paige, 481 ; 22 N. Y. 352 ; Boyd v. Croydon Pt'vvay Co., 4 Bing. N. C. 669. COKPORATIONS. 331 A stock corporation should be distinguished from an ordinary partnership and that form of the latter which is termed a •' joint stock company." The leading differences between a stock corpo- ration and a partnership are these : (1) the corporation is created by law; the partnership by contract. (2) The corporation is a " person " ^ and can make contracts and sue and be sued by its corporate name ; a partnership is not a " person," but a collection of individuals, and can only sue, etc., in the names of all its mem- bers who are known, and cannot legally act by an assumed name. (3) A judgment against the corporation only binds the corporate property ; a judgment against the members of a partnership binds, not only the firm property, but their individual assets. The mem- bers are said to be liable in solldo, or absolutely. A " joint stock company," not incorporated, is but a special form of partnership, having its capital divided into shares. The characteristic distinctions between it and a corporation are essentially the same as between an ordinary partnership and a corporation. Corporations may be classified from different points of view. (1) When considered in reference to the number of members, they are aggregate or sole. A " sole " corporation consists of a single individual, having an artificial or legal personality distinguished from his natural character. A king in a monarchical country is an example. A corporation consisting of two or more members is aggregate. (2) When a corporation is regarded from the point of view of its being an instrument of government^ it is called public. " Municipal " is the equivalent of " public." Cities, towns, and villages are public corporations ; all other corporations are pri- vate. (3) A further division, depending on the nature of the purposes for which the corporation is organized, is into ecclesins- tical and lay. This last mode of classification is of no practical value in the United States, since there are no ecclesiastical corpo- rations here. All corporations, including churches, arc lay. A distinction in lay corporations is drawn between civil and elee- mosynary, the latter being established, not for profit, but for charitable purposes. The word " charitable " is more commonly used in modern law than " eleemosynary." These distinctions^ run into each other, so that a corporation may be sole and public, or aggregate and public. It may also be both public and chari- table. Thus, a city, though in one aspect a public corporation, may, from another point of view, be a charitable one. The term "stock corporation" is much in use. Tliis is de- 1 A private corporation is a " person " United States Constitution. Pembina under tlie Fourteenth Amendment to the Mining Co. v. Pennsylvania, 125 U. S. 181. 352 THE LAW OF PERSONS. scriptive of a private corporation whose stock is divided into shares, such as a raih'oad or a bank. The phrase " quasi corporation " means an organization having some of the powers of a corporation, but yet not completely in- corporated. It is for the most part of a public or semi-public nature. It is a question of local policy whether to give such an organization full corporate powers, or only to a qualified extent. Thus, towns in the State of Massachusetts are fully incorporated ; in New York they are, for the most part, mere political divisions, and have very slender corporate powers.^ Other instances of quasi corporations are trustees of school districts and counties. Similar theories prevail in England, where there are instances both of aggregate and sole quasi corporations, such as church wardens, overseers of the poor, the Lord Chancellor, etc.^ The distinction between public and private corporations is im- portant in this country for a special reason. This is owing to a clause in the United States Constitution that " no State shall pass any law impairing the obligation of contracts." A private corpora- tion is deemed to originate in contract, while a public corporation is not, being rather an instrument of government. A charter of a private corporation, being a contract, cannot be changed without the consent of the corporation.^ The effect of this rule has been to a large degree nullified by the insertion of clauses in the charter, or in some law applicable to the case, that the legislature may at any time alter or repeal the incorporating act. Such a law is held to be a part of the contract created by the charter, and leaves the legislature free to make amendments so far as the constitutional inhibition is concerned. Corporations may also be considered from the point of view of being either " domestic" or "foreign." This is not a distinction as to the nature of the corporation, but simply turns upon its status, or legal condition. If it act or sue or be sued in the State or country where it is created, it is regarded as a domestic corporation. On the other hand, if legal inquiries concerning its conduct come up in a different State or country, it is in such aspects termed " foreign." In the absence of restrictions, a cor- poration chartered in a State may make contracts and do other acts elsewhere, provided that they are embraced within the terms of its charter.* It may, however, be restricted by foreign law. 1 Lorrillard v. Town of Monroe, 11 '^ Dartmouth College v. "Woodward, 4 N. Y. 392. Wheat. 518. 2 The English authorities are collected * Bank of Augusta v. Earle, 13 Pet. in Brice on UUi-a Fires (Loud. ed. 1874), 519, 588 ; La Fayette Ins. Co. v. French, pp. 17, 18 ; (2d ed.) pp. 26-28. IS How. U. S. 404. CORPORATIO:S-S. 353 This distinction becomes important as between the States of the Union. There is nothing in the United States Constitution to prevent a State from excluding a foreign corporation created by another State from doing business within its borders.i Thus, it may prohibit foreign insurance companies from insuring prop- erty within its limits. That article of the Constitution" which provides that the citizens of each State shall be entitled to " all privileges and immunities of citizens in the several States," is not infringed, since that refers to individual citizenship, and not to a mere creation of local law, such as a corporation is. Its rccoa,-- nition, as well as the enforcement of its contracts in another State, is purely a matter of comity or courtesy .2 Accordingly, if a State has the power to exclude a foreign corporation from doing busi- ness therein, it may impose conditions upon its permission, such as the payment of a tax considered as a license fee.^ A State, however, cannot, in giving its assent to the transaction of the corporate business therein, lawfully impose as a condition the surrender by the foreign corporation of a privilege secured to it by the Constitution and laws of the United States. An exam- ple is, a stipulation exacted that the corporation will not remove a suit against it in a State court into a Federal court, which, by the laws of the United States it would have the right to do.^ A State statute cannot make an agreement by the corporation to such an effect valid, since the statute itself would be unconstitu- tional and void.5 A State might as well pass a statute to deprive an individual citizen of another State of his right to remove such suits.*^ Notwithstanding what has just been said as to a corporation not being a citizen for certain purposes, the question still remains whether it is not a " citizen " within that clause of the Constitu- tion which confers judicial power upon the Federal courts." This clause allows a citizen of one State to be sued l)y a citizen of another State in the Federal court. The result of prolonged judicial discussion upon this point is, that while a corporation is not strictly a citizen, yet its members will be conclusively pre- sumed for the purposes of this section to be citizens of the State creating the corporation. It was on this ground that the court ^ Paul V. Virginia, 8 Wall. 168. poration had entered into the agreement ^ Id. required by the State statute, while iu the 2 Phila. Fire Assoc. . New York, 119 ease of Rarron v. Burnside, it had not. U. S. 110. The distinction between the two classes of * Barron v. Burnside, 121 U. S. 186. cases was declared to be immaterial. 6 Insurance Co. v. Morse, 20 Wall. ^ Barron v. Burnside, supra, p. 200. 445 ; Doyle v. Continental Ins. Co., 94 ^ Art. III. § 2, el. 1. U. S. 535. In the two last cases the cor- 23 354 THE LAW OF PERSONS. was able to reach the conchision in the case of Barron v. Burn- side, already cited, that the stipulation of the corporation not to sue in the Federal courts was void. Section II. The Creation of Corporations. — Corporations may be created in a number of ways, — by prescription, by charter granted by the king, or by act of Parliament, or, in this country, by the legislature. A corporation is said to be created by prescription when it has assumed to act as a corporate body without legal question for a prescribed number of years. The consent of the State is pre- sumed after, say, twenty years. There is a legal fiction resorted to that there has been a charter but that it has been lost.^ This theory may be resorted to when a charter or act of incorporation has in form been granted, but it has been so defectively drawn that it does not actually incorporate the parties named, though they have acted under its provisions. Formerly, a large part of the corporations in England were created by the king. While the king could create an artificial person, he could not confer upon it the full powers which could be given by the legislature. For example, he could not give the authority, now so frequently needed by railroad companies and the like, to take land from owners by compulsory measures for their use. Such a power can only be derived from the legislature. For this and other reasons, most of the corporations now created in England are created by Act of Parliament. Such charters as the king granted in this country before the Revolution still remain in force.2 The king may exercise his power by delegation to an- other as well as by a direct act of creation. The only direct mode of creating a corporation in this country is by an act of the State legislature or of Congress. The power of Congress was at one time much disputed, but without success. Though there are no express words in the Constitution on the subject, the power may be exercised under the general principle that wherever a power is granted, there is bestowed by impli- cation a power to make use of all such means as are necessary and requisite to carry into effect the power granted.^ Congress has under this doctrine created great railroad corporations as well as chartered national banks and other instrumentalities of government. The main power to create corporations is vested in the State 1 See on the general siiT)ject, Queen v. 2 Dartmouth College v. "Woodward, Durham, 10 Mod. 146 ; Jenkins v. Har- 4 Wheat. 518. vey, 2 C. M. & R. 393 ; Angell & Ames 3 McCulloch v. State of Maryland, 4 on Corporations, §§ 69-71. Wheat. 316, 421. COEPORATIOXS. 355 legislatures. There is little or no restriction upon this power, except some regulations in some of the State constitutions, not designed to limit the power, but to mark out the true mode of its exercise, — such as provisions that corporations shall be created under general laws where that mode of proceeding is feasible. A corporation is said to be created under a general law, when a legislature prescribes a corporate formula by statute, pointing out various acts wliich must be done by persons desiring to be incorporated for some specified purpose, in order that they may become a corporation. This course results in an indefinite num- ber of corporations, since the theory is, that there is no element of exclusiveness, but that all who desire to be incorporated may become so by a compliance with the prescribed formula. This formula is not the same in all respects in the various States, nor even for all corporations in the same State. A general outline of it is, that a paper is drawn up, setting forth the names and number of the corporators, with mention of future associates, the proposed name of the corporation, the capital (if any), the direc- tors or trustees for the first year, the period during wliich the corporation is to continue in existence, etc.^ This document is signed by the proposed corporators, and the signatures are ac- knowledged before some prescribed officer, and, when complete, it is filed in a prescribed public office, whereupon tlie parties become a corporation. If the formula is not complied with, there will be no corporation.^ It will be convenient in the course of the discussion of this subject henceforward, to use a single term to express the mode of creating a corporation. The word " charter " is a well-known popular w^ord, and though strictly only applicable to corporations created by the king, it will be used for the present purpose as a generic word expressing any and all modes whereby corporations are brought into existence. There are several leading rules gov- erning the creation of corporations which will be briefly referred to. (1) It is not necessary that the corporation should be created in so many words, though that course is usual. If powers be granted to a body of men which cannot be exercised without cor- porate authority, corporate existence may be implied. This is termed creation by implication.^ (2) The proposed corporators should accept the charter. This rule is to be inferred from the fact that a charter constitutes a contract. The rule, however, does not apply to a public corj)ora- 1 The statutes must be consulted for ^ Conservators of the River Tone v. details and carefully followed. Ash, 10 B. & C. 349. 2 DeWitt V. Hastings, 69 N. Y. 518. 356 THE LAW OF PERSONS. tioii. Acceptance may be either express or implied from action under the cliarter which is technically termed " user." i It may be added that persons who have contracted with it as a corporation may be by their action precluded from denying its existence, or, in legal phrase, estopped. (3) A corporation should have a name by which it may sue and be sued, or perform other legal acts. The name is either conferred by the legislature or assumed by the corporation itself when organ- ized, under a general law. A corporation has no inherent power to change its name.^ The name may be changed either by special act of the legislature or by acting under some provision of a general law applicable to the case. A party who has contracted with a corporation under a false name may insist that the corporation is estopped to deny that the name used by it is its true name, much in the same way as a natural person would be estopped under like circumstances. Section III. The Powers of Corporations. — I. The doctrine of ultra vires. — By the expression " ultra vires " is meant an act on the part of the corporation transgressive of its powers. For a correct view of this subject it should be considered that a cor- poration does not as a rule have free power to act and contract such as that which a natural person possesses. It is organized for some declared purpose, such as for banking, building or operat- ing a railroad, insuring against fire or marine disaster, and the like. Its contracts must, accordingly, be brought within the limi- tations prescribed by the charter, which must be regarded as its organizing and fundamental law. If these be transgressed, there is a case of ultra vires. The question then arises as to the effect of the contract made or act done in violation of its organizing law. Is it utterly void so that the corporation can set up its invalidity, although it may have received the benefit of it, or does some other rule prevail ? These points will be briefly considered. In the outset, it must be stated that the expression " ultra vires " is used in two quite different senses, particularly in reference to stock corporations, in which the capital is subscribed or owned by stockholders, while the management is by a board of trustees or directors. One signification implies that the directors have exceeded their powers, and thus violated their duty to the stockholders ; and the other, and more appropriate, embraces the case where the cor- poration itself, be it a stock corporation or any other, goes beyond the authority which the State has conferred upon it. This last is a true usurpation of authority, and is, so far as the State is con- 1 M. E. Union Church v. Tickett, 19 ^ The Queen y. Eegistrar of Johit Stock N. Y. 482. Companies, 10 Ad. & Ell. N. s. 839, 844. COIlPOKxVTIONS. 357 cerned, violative of duty to it and a cause of forfeiture of corporate rights. In the first case, there is presented the instance of an agent overstepping the bounds of authority. This is a breach of duty towards the stockliolders, and may be waived by their con- sent, with full knowledge of the facts ; but where there is no waiver, the action of the directors will be a breach of trust. The opinion in a recent English case^ refers to this sense of ultra vires when it says that, as between a corporation and its stockholders, it is a great and cardinal principle of law that the funds arc not to be used by the governing body for any purpose different from that for which they were contributed. Such a use would be an instance of ultra vires. With this distinction in view, the discus- sion will be confined to the case where either the directors or the corporation exceeds the powers conferred upon it by its charter. It may be urged that if the directors do such an act without the consent of the corporation, it is a matter between the managers and the company with which the public at large have no especial concern ; on the other hand, it is plain that there is an element of public policy in the case, which makes the transgressive act illegal and void in all respects, even as to the corporation itself. If tliis view be correct, no sanction by the shareholders will make the transaction valid. The correct opinion seems to be that an act ultra vires in this sense is, when considered as a contract binding on the company, without force, and void. It is in fact a case of wajit of cajiacitij^ such as the incapacity of a married woman at common law to make a contract. The party contracting with the corporation is bound to know the law, and usually has means of knowledge of the want of power on the part of the corporation by recourse to the statute books. In this view it makes no difference whether tlie contract is wholly executory or partly performed, or wholly performed. No action will lie on the contract, — that is, no action based on the theory that there is a subsisting contract between the corporation and the plaintiff. It is quite a different question, whether the opposite party may not have remedies growing out of the non-existence of the intended contract, — such as, for example, to recover an dmount equal to the advantage which the corporation has received from the unautho- rized act of dealing, — or whether money advanced cannot be re- covered as upon failure of consideration. There are cases in which a recovery has been had on this ground, applicable to natural persons as well. Tliese cases rest on the principle that it is inequitable and unjust to retain money paid upon a supposed con- 1 Pickering v. Stephenson, L. R. 14 Eq. 322. 358 THE LAW OF PERSONS. sideration which does not in fact exist.^ Still, it is understood to be the rule in the English courts that even this ground is only maintainable under special circumstances. ^ Most of the cases, as to which there is a diversity of opinion, do not turn upon the principle of law applicable, but upon the question whether the facts show a case of ultra vires. This is frequently a matter of the utmost difficulty as involving the con- struction of obscurely written statutes, and of determining how far the disputed power may be implied from the language used. A notable case of this kind is referred to in a note.^ The leading case in New York developed a serious difference of opinion among the judges as to the effect of acts ultra vires, it being held in the opinion of one eminent judge that it did not make a contract void, while in that of another, no less able and eminent, it was considered that the contract was utterly void.* It is believed that the latter view will ultimately prevail as a question of capacity. The view, however, is taken that even if the contract be void, yet if the corporation enter upon the undertaking and act negli- gently, so as to injure the party with whom it assumed to contract, he will have an action for negligence.^ It is further held that the presumption is in favor of the view that the corporation has not acted in excess of its powers, and that the burden of proof is upon one who attacks a transaction on this ground, to show that it was ultra vires. Every presumption is to the contrary." In the cases already referred to, in which the act done by the 1 Parish v. Wheeler, 22 N. Y. 494, cases cited, and the arguments of the emi- 508, 509 ; Castle v. Lewis, 78 Id.l31, 135 ; nent counsel are a storehouse of informa- Woodruff V. Erie R'way Co., 93 Id. 609, tion. 618, 619 ; Manville v. Belden Mining Co., * Bissell v. Mich. So. & N. I. R. R. 17 Fed. R. 425. These cases do not refer Go's., 22 N. Y. 258 ; Madison Ave. Bap. to instances where the contract is in itself Ch. v. Oliver St. Bap. Ch., 73 N. Y. 82, illegal or immoral. 90. 2 Brice on Ultra Vires, 521, 522 ; (2d ^ Buffett v. Troy & Boston R. R. Co., ed.) pp. 764-765. 40 N. Y. 168. The plea of idlra vires 3 The case referred to in the text is should not, as a general rule, prevail, Taylor v. Chichester & M. R'way Co., whether interposed for or against a cor- L. R. 4 H. L. 628. In the lower court of jioration, when it would not advance first instance the contract was held not to justice, but, on the contrary, would accom- be ulti-a vires, 4 H. & C. 409. The judg- plish a legal wrong. AVhitney Arms Co. ment was reversed in the Exchequer v. Barlow, 63 N. Y. 62, 69 ; Boston & Chamber (L. R. 2 Exch. 356) by four Prov. R. R. Co. y. N. Y. & N. E. R. R. judges against two, on the ground that it Co., 13 R. I. 260 ; Rider Life Raft Co. v. was ultra vires. This last judgment was Roach, 97 N. Y. 378. reversed in the House of Lords on the '^ Shrewsbury & Birmingham R'way ground that the corporation had not ex- Co. v. N. W. R'way Co., 6 H. L. Cases, ceeded its powers. In the course of the 113, 135, 136. discussion there was a vast number of COKPOEATIONS. 359 directors of a coi-poration is of such a nature that though in excess of power it only affects the interest of the stockholders, a ratification by them would make the act valid, (a) This seems to be no more than ratification by a principal of an agent's un- authorized act.i The stockholders, having confirmed the act, would be estopped to deny its validity in favor of one who had acted in good faith. If stockholders do not ratify, there is a remedy by injunction.^ There is in practice a marked distinction made by some authori- ties between executory and executed contracts. While executed contracts in excess of power are, as has been seen, in some in- stances so far upheld as to preclude the corporation from setting up the excess in defence, this doctrine cannot be applied to execu- tory contracts, which are utterly void.^ {b} A mere stranger, such as a competitor for business, cannot raise the question of ultra vires^ The reports abound in cases where the question of ultra vires has been raised, either success- fully or unsuccessfully.^ They depend largely upon the construc- tion of particular charters, and require so much detail for their elucidation that they lie beyond the compass of this work. Reference may usefully be made to the excellent work of Brice on Ultra yires.6 ^ Kent V. Quicksilver IMining Co., 78 ?v'. Y. 159, 186; Rider Life Raft Co. v. Roach, 97 N. Y. 378. ^ Elkins V. Camden & A. K.. R. Co., 36 X. J. Eq. 5. 3 Nassau Bank v. Jones, 95 N. Y. 115, 123. * Railroad Co. v. Ellerman, 105 U. S. 166. ^ It has even been contested whether (a) Martin v. Niagara Falls, etc. Co., 122 N. Y. 165. (b) That the defence of idtra vires can- not be interposed where the contract is executed, see Linkauf v. Lombard, 137 N. Y. 417, 423 ; Jennison v. Citizens' Savings Bank, 122 N. Y. 135; Cunning- ham V. Massena Springs, etc. Co., 63 Hun, 439 ; Dewey v. Toledo, etc. 'Rj. Co., 91 Jlich. 351 ; Railway v. Gentry, 69 Tex. 625 ; Wright v. Hiaghes, Assignee, 119 Ind 324. To the contrary are, Chewacla Lime Works v. Dismukes, 87 Ala. 344 ; Central Transp. Co. v. Pullman's Car Co., 139 U. S. 24. In this case the view of the Supreme Court of the United States the employment of a policeman by a rail- way company to jirotect its property was not ultra vires. It was decided that it was not. Edwards v. Midland R'vvay Co., L. R. 6 Q. B. Div. 287. ^ The doctiine of tdtra vires, with some of its applications, was greatly considered ill a series of cases growing out of a loan made by Lord Wenlock to the River Dee Comi)any. An important question was is said by Mr. Justice Gray to be as fol- lows : " A contract of a corporation, which is ultra vires in the proper sense, — that is to say, outside the object of its creation as defined in the law of its organization, and therefore beyond the powers conferred upon it by the legislature, — is not void- able only, but wholly void, and of no legal effect. The objection to the contract is not merely that the corporation ought not to have made it, but that it could not make it. . . . No performance on either side can give the unlawful contract any validit}', or be the foundation of any right of action upon it." p. 59. 360 THE LAW OF PERSONS. II. Powers as to succession of jyiemhers, including amotion and disfranchisement. — The capacity of causing a succession of mem- bers, on the death or resignation of corporators, is one of the leading advantages that a corporation possesses. If there he several co-owners of property, who are not incorporated, on the death of each the share is transmitted to heirs or executors, as the case may be, and the design of the joint ownership may be entirely frustrated ; but, in a corporation, the artificial person continues, though the entire membership may be changed, and that, too, even many times. The mode of succession varies with the nature of the case. In some instances it is derived from election ; in others, as in the case of municipal corporations, it may be derived from inhab- itancy of the city or town ; in others still, as in a trading corpo- ration, from the ownership of shares or stock. The rules of succession necessarily vary to adapt themselves to the particular case, and will be treated separately. (1) The first case to be considered is where the membership is definite and fixed in number. This is true in general of chari- table corporations, such as colleges, hospitals, dispensaries, and a great variety of others, not organized for profit. Where an election of a member or members is desired, a ma- jority of the members named in the charter of such a corporation meet at an appointed place and time. It will not be sufficient to ascertain their will by consulting them separately. They must involved as to whether the right to bor- more, and the assent of every individual row mone}' by a corporation was regularly member will not make the loan valid, implied by law, and whether this implica- Baroness Wenlock v. River Dee Co. , L. R. tion, if it existed, could be overcome 36 ('h. D. 674. In a third case it appeared without express restrictive words. The that the company had used the borrowed executors of the lender sought to enforce money to pay its debts, whereupon the the loan, while the corporation, notwith- court held that a lender on a loan ultra standing it had received and expended the vires may be subrogated to the position proceeds for its own use, set up the doc- of a creditor whose debt has . been paid trine of ultra vires as a defence. The out of the money thus lent. This rule court held that by a reasonable construe- will be applied even to debts subsequently tion of the statute, the power to borrow incurred but paid out of the proceeds of beyond a sum specified therein did not t\\9 ultra vires loan. The counsel for the exist, and that the defence was good, defendant urged that this last proposition Baroness Wenlock v. River Dee Company, was full of danger, but the court thought L. R. 10 App. Cas. 354, referring to not, since this rule of substitution would Ashbury R'way Carriage & Iron Co. v. not be relied upon by money lenders, as Riche, L. R. 7 H. L. 653. In a second it had rarely done more for any one than case, growing out of the same transaction, to "snatch a few brands from the burn- it was further held by a divisional court ing." Baroness Wenlock v. River Dee (Kekewich, J.), that where a corpora- Co., L. R. 19 Q. B. D. 155,166, following tion is empowered by Act of Parliament Blackburn BIdg. Society w. Cunliffe, L. K. to borrow a certain sum of money, there 22 Ch. D. 61. is an implied restriction as to borrowing CORPOHATIONS. 361 be assembled as a corporation (coUegialUer')} For example, a college corporation consists of twenty-four members. A valid meeting may be held by thirteen. When the number is reduced by death, resignation, or otherwise, below thirteen, there can be no legal meeting unless the charter specially provides to the con- trary. The active existence of the corporation is suspended, though it may be revived by the legislature. Assuming that there is a valid meeting, a new member may be elected by a majority of the votes actually cast. Notice of a meeting must be given. Notice of a regular meeting is presumed. This is also true of an adjourned meeting, at least for the purpose of taking up business unfinished at the regular meeting,^ This doctrine cannot be applied to a special meeting. Corporators absent from a general meeting cannot be presumed to know that a special meeting will be called. Accordingly, notice of such special meet- ing must be given.^ When a meeting is regularly convened, members abstaining from voting are not regarded. The officers in such a corporation are not in general the managers of the corporation, but are presiding officers, recording officers, treas- urers, or agents. Closely connected witli the introduction of new members is the power of removing existing members. This is in some sense an incident to the power to perpetuate. A distinction must be taken between the power to remove a member and to remove an officer. The first is called disfranchisement ; the other, amotion. Disfranchisement (without referring to stock corporations) may take place for good cause. Two general grounds for re- moval may be suggested : one, where an infamous crime has been committed by a corporator, even though it have no special reference to corporate duty ; the other, where there is a breach of corporate duty, though the act in itself may be perfectly innocent. If the act charged be a crime unconnected with corporate acts, the corporation cannot try the question of innocence or guilt. That must be disposed of by the courts of justice. If convicted of crime, '' disfranchisement " may follow. In cases of mere breach of corporate obligations, the corporation may dispose of the whole question, giving the member complained of due notice and opportunity to be heard.* Common instances are failure to 1 The case of the Dean, «5;c. of Femes, by the entire bench of common-law judges, Davies, R. 116, 130-132. as well as by the House of Lords. See 2 I.orant v. Scadding, 13 Ad. & El. also King v. Hams, 1 B. & Ad. 936. N. .s. 706, affirmed in the House of Lords. 3 ^ People v. Batchelor, 22 N. Y. 128 ; H. L. Cases, 418. An adjourned meeting Smyth v. Darley, 2 H. L. Cases, 789. is there said to be a continuation of the * Rex v. Richardion, 1 Burr. 517, original meeting. This view was expressed 540. 302 THE LAW OF PERSONS. attend the meetings or non-residence, where attendance and resi- dence are required. This subject is to some extent in particular cases regulated by a by-law, and then additional questions will arise as to the reasonableness and validity of the by-law, which will be considered hereafter. Amotion is a rule of broader extent than disfranchisement, applying to all corporations, and accordingly to stock corpora- tions, to which disfranchisement has no common-law application. By this term is meant the removal of officers or managers. An officer amoved does not cease to be a member, but only an officer. A power of this sort is necessary for the proper management and even continuance of the corporate institutions.^ If the office be one of profit and emolument, the proceeding to remove must be a quo warranto, which is a writ on the part of the State, or less formal proceeding called an information, to ascertain by what warrant the alleged officer holds his office.'^ The question has been greatly discussed whether, if an officer obtained the office by a species of fraud practised before his appointment, he could be removed by the corporation without notice. It was plausibly argued that it might be considered that he was never an officer, and that the usual proceedings against officers validly elected for subsequent misconduct need not be resorted to. The point, how- ever, seems to be still undecided.^ Where membership depends upon inhabitancy, so that the number is fluctuating, as in the case of a municipal corporation, no particular number of members in attendance at a meeting is necessary. («) (2) The succession of membership in stock corporations, and the election and removal of officers differ materially from the rules just discussed. A stock corporation is in general organized for banking, insur- ance, trading, manufacturing, or transportation purposes. It has a capital, say 81,000,000, divisible into shares of a convenient amount, say $100 each. There being in the case supposed 10,000 shares, it is conceivable that each share should be owned 1 Bagg's Case, 11 Coke's Rep. 93 6. 2 pg^ Lord Wensleydale, 10 H. L. The Kingt;. Lyme Regis, 1 Doug. 79, 85, Cases, p. 464. "If the office had been and 75cr Blackburn, J., in Queen v. Sad- full, he could not be removed without a dlevs' Co., 10 H. L. Cases, 404, 419-420. quo tuarranfo. That is perfectly clear." As to the oflBcer's right to a hearing, see ^ gee very extensive discussions of this Willcocks on Corporations, Part 1, para- matter in Queen v. Saddlers' Co., 10 H. L. graphs 691-702. Cas. 404. {ri) The power of amotion exists as Eichards V. Clarksburg, 30 W. Va. against officers of municipal corporations. 491. COiiPOilATIOXS. 363 by a distinct person. Membership depends upon ownership, or the apparent ownersliip, of shares. There would in the case supposed be 10,000 members. The other extreme would be where all the shares are owned by a few persons, or perhaps by one, making, in that case, for the time being, but one member. Membership may lie anywhere between these extremes. As the number of members is constantly fluctuating by sale or other transfer, it would be impracticable to have a rule requiring a majority to attend a meeting. The regular course is to allow the stock represented, no matter how small the number of shares may be, to control an election. Absent stockholders may be represented by a delegation of their voting power to some person or persons who attend. This is a species of agency, — a form of power of attorney, — and is called voting by " proxy." The power to take votes by proxy cannot be assumed by the corpora- tion, but must be granted by the legislature, (a) As a usual rule, each share has a vote, so that if a single person owns or controls 5,001 shares out of 10,000, he controls the corpora- tion, and may select his own board of directors. It is apparent that the stockholders cannot, as such, properly manage the corporate business. This power is delegated by law to a governing body, variously styled trustees, managers, or direc- tors. The stockholders elect the directors at a meeting of their number. These hold their places for a time specified by law, wlien a new election is regularly held. A general outline of the mode of proceeding is for the stockholders to select inspectors of elec- tion, who count the votes as presented. The inspectors determine the right to vote by an examination of the list of shareholders kept on the books of the corporation. Frequently, the books for transfer of stock are closed for a number of days prior to an elec- tion. If a sale of shares should in the interim take place, the voting power would remain in the former owner, unless there were some statutory restraint upon him, since he has the apparent ownership. In the same way, if executors or trustees are regis- tered as owners, they have the voting power.^ (5) The inspectors do not look beyond the transfer book. By the common law, one 1 Matter of Barker, 6 Wend. 509 ; Matter of Long Island R. R. Co., 19 Wend. 37. (a) The right to vote by proxy may, a general statute. See Laws of 1892, ch. according to many authorities, be conferred 687, §§ 20, 21. by a by-law where the statute is silent on (b) This is also true of a foreign execu- the subject. Commonwealth v. Detwiller, tor, In re Cape Maj-, etc. Nav. Co., 51 131 Pa. St. 614 ; Morawetz on Corpora- N. J. Law R. 78. If the stock is held tions, § 486. In New York, voting by jointly by several executors, all must agree proxy in many corporations is regulated by upon the vote. Tunis v. Hestonville, &c. Ky. Co., 149 Pa. St. 70. 364 THE LAW OF PEllSONS. holding stock that has been pledged, or " h3^pothccatcd," to another, still has the right to vote, since he is owner, notwithstanding the pledge.^ (a) The time, place, and manner of voting may be regu- lated by statute, or, in the absence of statutory provision, by by-law.^ If a person be placed in office by means of an election wrongly conducted, the regular common law remedy is a quo warranto proceeding. This can only be resorted to when the party against whom it is instituted is in office, or, in legal expression, when " the office is full." If the office had not been filled, a mayidamus could be used to place a person rightfully elected in office. In New York, by statute, there is a summary way of vacating the election by motion, (h) In cases such as these, the court can either confirm the election or order a new one. The mere fact that illegal votes were cast will not be decisive. There must have been enough of that kind of votes to change the result.^ The person having the greatest number of legal votes will be declared elected.* If votes have been improperly rejected which would if received have changed the result, the only remedy is to order a new election.^ As to the effect of failing to hold elections at the designated day, there has been much diversity of opinion. On the one hand it has been claimed that a direction in the statute as to the time of holding the election is vital, so that it cannot be held at a later day. The better view seems to be that the words of the charter should not be regarded as iruindatory^ but rather as a direction (or " directory "), which, if not followed, may be carried out at a later day. The time prescribed, in that view, is not of the essence of the direction, (c) At all events, if the corporation proceeds to elect officers at a later day, and they enter upon their duties, they become de facto officers, and the corporation will be bound by their acts.^ 1 Ex parte Willcocks, 7 Cow. 402. ^ Matter of Long Island R. R. Co., 19 2 Rex V. Spencer, 3 Burr. 1827 ; New- Wend. 37. line V. Francis, 3 Term R. 189. ^ Ebaugh v. German Reformed Cliurcli, 3 ^a;;;a?-fe Murphy, 7 Cow. 153 ; Matter 3 E. D. Smith, 60; Lovett v. German of Chenango Co. Mutual Ins. Co., 19 Wend. Reformed Church, 12 Barb, 67 ; Partridge 635. V. Badger, 25 Id. 146. * Ex parte Desdoity, 1 Wend. 98. (n) In New York it is now provided by It is a general rule that in taking action statute that the pledgor may vote the stock which as a body they are authorized to take, if it stands in his name on the books of the the stockholders can only act at a corporate corporation. Laws of 1892, ch. 687, § 20. meeting. Duke v. Markham, 105 N. C. If the corporation itself owns a portion 131 ; Cook on Stock and Stockholders and of the shares, the right to vote upon them Corporation Law, §§ 625-27. is suspended until they are transferred. {b) Laws of 1892, cli. 687, § 27. Vail V. Hamilton, 85 N. Y. 453 ; Am. Ry. (c) Beardsley v. Johnson, 121 N. Y. Frog Co. V. Haven, 101 Mass. 398. 224, i CORPORATIONS. 365 The doctrine of disfranchisement of members has a very limited application to stock corporations. To disfranchise would be to forfeit property freqnently of high value. This power is but rarely conceded to such a corporation, except so far as it is used as a remedy for non-payment of shares subscribed for or, it may be, for non-payment of assessments. The corporation is not obliged to resort to this proceeding, but may sue in the ordinary way to collect the amount of the subscription. The remedy is cumulative. It is also to a certain extent alternative, so that if the stock is forfeited, no action will subsequently lie to re- cover on the contract. The courts are averse to forfeitures, and make it a rule that there shall be no forfeiture of stock, unless the power to forfeit is expressly conferred by the legislature.^ The doctrine of amotion as distinguished from disfranchisement is applied to directors and trustees of stock corporations as well as of other corporations, there being no forfeiture of stock in- volved. There are in State legislation restraining laws to prevent these officers from using their positions to the injury of the corpo- rations, and from abusing their trust. They act in a fiduciary character, while the corporation itself holds its property in trust for the stockholders. III. Power to make hy-laivs. — A " by-law" is a regulation made by the corporation for the purpose of more perfectly carrying on its business, or performing the powers granted in the charter. The power to make by-laws may be expressly conferred, or im- plied from the general authority granted by the legislature. When made by a municipal corporation, they are commonly termed " ordinances." They must be reasonable, and not con- flict with the general law, nor with the general scope of the charter.^ Among other restrictions, they are not allowed to impose a forfeiture,^ though they may inflict a penalty for the purpose of enforcement ; nor can they by by-law grant a director a remunera- tion for attending a directors' meeting, as the directors cannot be properly regarded as servants.* The power is sometimes dele- gated by statute to a select body to make the by-laws. This will deprive the corporation at large of the power, except as to such matters as are not named in the statute.^ A by-law in general 1 Matter of Long Island Railroad Co., * Dunston v. Imp. Gas Company, 3 B. 19 Wend. 37. & Ad. 125. 2 Hoblyn v. The King, 2 Bro. P. C. ^ The King v. Westwood, 2 Dow & 329. C. 21. 3 Kirk V. Nowill, 1 Term R. 118. 366 THE LAW OF PERSONS. restraint of trade is void, (a) This remark does not apply to a mere regulation of trade, such as that no person shall slaughter animals within the walls of a city.^ {h) This rule is modified in England by the effect given to a custom, particularly in cities, e. g.^ in London, whereby trade may be validly restrained. The court construes with strictness the power to make by-laws, particularly where they are enforced by a penalty. The rule of construction may be illustrated by examples. A power to make by-laws to remove " dust, ashes, rubbish, soil," &c., from a street, does not include a by-law directing the removal of snow.^ (c?) The same general principle is adopted in construing the by-law itself. Thus, a by-law declaring one who made a temporary obstruction in the streets of a village punishable by fine, was determined not to be violated by one who erected a substantial addition to his house, which encroached upon the footway.^ On a similar prin- ciple, where a railway company had power to make a by-law enforceable by a "penalty or forfeiture," it was decided that a by- law which required a passenger to obtain a ticket in adv^ance, and to exhibit his ticket, and deliver it when required by the company, or else pay the fare from the place where he originally started, was void, because this double payment could not be regarded as a " penalty or forfeiture." ^ A by-law may be partly valid though partly void, if the void part is distinct and separable from that which, standing by itself, is valid.^ A by-law is in its nature legislative rather than administrative. This proposition is illustrated by a city ordinance. If a city make a by-law prohibiting an act, and still the act be done by a stranger, and a person is injured, he will have no action against the city. This rule has even been carried so far as to relieve the city from responsibility for the misfeasance of its own officers or agents in carrying out the ordinance. It is assumed to be exercising a kind of quasi sovereignty in such a case.^ (d) This rule has been 1 Pierce v. Bartrum, Cowper, 269. ^ Queen v. Dickenson, 7 E. & B. 831. 2 The Queen v. Wood, 5 E. & B. 49. « Chilton v. London & C. Ry. Co., 16 See also Jennings v. Great Northern Ry. M. & W. 212. Co., L. R. 1 Q. B. 7; Dearden v. Towns- s Reg. v. Lundie, 8 Jur. N. s. 640. end, Id. 10. ® Ogg v. City of Lansing, 35 la. 495. (a) So also an ordinance which tends (h) Cronin v. People of the State ot to create a monopoly is invalid, unless the N. Y., 82 N. Y. 318 ; cf. Chaddock v. Day, municipality has received an express grant 75 Mich. 527. of power from the legislature to confer such (c) Cf. Village of Carthage v. Frederick, a privilege. City of Chicago v. Runipff, 122 N. Y. 268. 45 III. 90; Gale v. Village of Kalamazoo, {d) Kies v. Erie Citj% 135 Pa. St. 144 ; 23 Mich. 344 ; City of Brenham v, Bren- Wright v. City Council of Augusta, 78 ham Water Co., 67 Tex. 542. Ga. 241. See also Maximilian v. Mayor, CORPORATIONS. 367 applied to officers executing sanitary regulations,^ and to the acts of a fire department, etc.2 The principle cannot be properly ex- tended to cases where a city or other municipality is under a duty to do an act for tlie protection of individuals, sudi as to keep the streets in repair, in which case it will be liable as well for the negligence of contractors as of servants.^ (a) IV. Power to make contracts. — A corporation has power to make such contracts as are either expressly allowed in its char- ter or fairly to be implied from the language used. Unless there be some statutory provision to the contrary, the directors or trustees make the contract, without being bound to ask the consent of the stockholders.* Where an inquiry arises as to any authority, a preliminary question, as already shown, may be con- sidered, as to its being ultra vires. Leaving this out of view, the most important point will be as to the matter of implied powers. It is a general rule that any im- plied authority will be conceded whicli is reasonably necessary and proper for the exercise of the powers expressly granted. Thus, a corporation having power to do a particular business may without any express authority borrow money and give its note.° A serious difficulty existed in the common law as interpreted in England as to the use of a seal. The conclusion of the courts was that a seal was absolutely necessary, with some slight and unimportant exceptions. The cases are very numerous in which the distinctions were drawn, and the rules highly inconvenient in practice. The American courts have reached more rational con- clusions. The necessity of a seal here has been made to depend on the nature of the contract., and not upon the person who makes it, so that where an individual must use a seal, a corporation must, but need not otherwise.^ Thus, where a natural person makes a deed, he must use a seal ; so must a corporation. Where, on the other hand, an individual makes a promissory note, a seal is omitted ; so it may be in the case of a corporation. A seal on a corporate obligation, where it is unnecessary, does no harm. The law, by this theory, is greatly simplified, and the complexity of 1 Ogg V. City of Lansing, suiira. 5 Curtis v. Lpavitt, 15 N. Y. 9. 2 Heller V. Maj'or, &c. of Seilalia, 53 ^ This mlj has been adopted by statute Mo. 159 ; Hayes v. Oshkosh, 33 Wis. 314. in England as to trading companies. See 3 Storrs V. City of Utica, 17 N. Y. 104 ; 8 & 9 Vict. c. 16, § 97, continued in 30 & Allentown v. Kramer, 73 Pa. St. 406. 31 Vict. c. 131, § 37. As to gas companies, * Beveridge v. New York Elevated R.R, see 23 & 24 Vict. c. 125, § 20. Co., 112 N. Y. 1. 62 N. Y. 160 ; Jolly's Adm'x v. City of (a) Pettengill v. City of Yonkers, 116 Hawesville, 89 Ky. 279 ; Dillon on Muni- N. Y. 558. cipal Corporations, (4th ed.) § 974, et scq. 3C8 THE LAW OF PERSONS. having- one rule for natural persons and another for corporations as to the same subject-matter is avoided, (a) As a corporation has no physical, but merely an ideal existence, it must necessarily make contracts through agents. The general principles of the law of agency become applicable to it. A letter written by a cashier of a bank upon its business is deemed to be a letter from the bank itself.^ A difficulty has arisen in the case of directors of a corporation, as to whether notice to one of the board not at the time attending a meeting is a notice to the corporation itself. It is not doubted that notice to the board while in session is notice to the corpora- tion ; but notice to an individual member is not notice to the corporation, unless he was in fact an agent for the corporation, such as the cashier of a bank.^ Qualified power to make contracts may be conferred by the charter, — as, for example, to execute a mortgage upon land with the assent of a specified number of the members. In such a case the restrictions of the statute must be observed, otherwise the act will be idtra vires, and void. Y. Capacity to commit a tort. — It is, after much controversy, a settled rule of law that a corporation may commit a wrong for which it may be made to respond in damages in the same manner as an individual may be. Any different rule would work mani- fest injustice, as persons carrying on business might become incor- porated to evade responsibility for wrongful and injurious acts. No sufficient reason could possibly be given why partners conduct- ing a newspaper should be responsible for a malicious libel, while a corporation conducting the same business should not be. Ac- cordingly, a corporation may be held liable for an assault,^ nuisance, trespass, libel,* fraud,^ false imprisonment,^ and con- version of property.' There has been more difficulty in the judicial mind with the case of malicious prosecution than with the other cases. Those who 1 New Hope Bridge Co. v. Phoenix ^ Whitfield v. So. East. E'way Co., Bank, 3 N. Y. 1.56. E. B. & E. 15. 2 The Fulton Bank v. The New York & ^ Ranger v. Great Western R'way Co., Sharon Canal Co., 4 Paige, 127 ; National 5 H. L. Cases, 72. Bank v. Norton, 1 Hill, 572 ; Bank of ^ Moore v. Metropolitan R'way Co., IT. S. V. Davis, 2 Id. 451. L. R. 8 Q. B. 36. 3 Eastern Co.'s Railway Co. v. Broom, ' Giles v. TaflF Yale R'way Co., 2 E. & 6 Exch. 314. B. 822. (n) A late statute in New York pro- by the proper officers of the corporation vides that an instrument duly executed in iinder their private seals, shall be deemed the corporate name of a corporation, which to have been executed under the corporate shall not have adopted a corporate seal, seal. Laws of 1892, eh. 677, § 13. coRroRATioxs. 369 have doubted the capacity of a corporation to commit such an act, have argued that a corporation aggregate is incapable of malice or motive. The correct course, however, seems to be to pay attention to the nature of the act done, which, if without excuse is deemed to be malicious. Thus, in the case of an individual, if there be no probable cause for the prosecution, an action for malicious prosecution may be brought against the prosecutor, the malice being inferred. The same principle may fairly be applied to a corporation acting without any probable cause, (a) Malice is a mere legal fiction in such a case. There would be much more difficulty in a case where aclual malicioua intent was a necessary ingredient. ^ VI. Capacity to acquire lands and other property and to dis- pose of the same. — Assuming that there are no restraining words in the constituting law (or charter), a corporation may, for all purposes incident to its business, acquire by its own act pei'sonal property as freely as an individual. It may also take personal property by will.^ There are statutes in a number of the States of a restraining nature as to bequests. Those in Xew York, being applicable to real estate, are considered below.-'^ The particular charter or law under which the corporation is organized should also be examined. The power of a corporation to acquire and dispose of real prop- erty will be considered under the following heads : (1) The power of a corporation to take land by conveyance or to acquire it in any other manner except by will ; (2) the power of acquisition by will or devise ; (3) the right of disposal. (1) A corporation may, at the common law, in the absence of any statutory restriction, acquire land, as it may personal prop- erty, so far as it may be necessary to carry into effect the powers conceded to it. The capacity to acquire land, in other words, may be treated as incidental to the powers expressly granted.* 1 This question was considered in the decision of the question was not necessary House of Lords by Lord Bramwell in to the disposition of the case, though Abrath v. North Eastern R'way Co., L. R. they treated it as a grave question. 11 App. Cases, 247. His reasoning was 2 Sherwood v. Am. Bible Society, 1 opposed to the view that an action of ma- Keyes, 561 ; s. c. 4 Abb. App. Dec. licious prosecution would lie against a 227. corporation, since proof of acfAial ill will 3 j^^^-^g of i848, ch. 319 ; Laws of 1860, was a necessary ingredient in the case. ch. 360. What he said in very distinct words was * ll'Cartee v. Orphans Asylum Soc, 9 not taken up by the other judges, as the Cow. 437. (a) Reed v. Home Savings Bank, 130 Springfield Engine & Threshing Co. v. Mass. 443 ; Jordan v. Ala. Great Southern Green, 25 111. App. 106 ; Carter v. Howe Ry. Co., 74 Ala. 85 ; Boogher v. The Life Machine Co., 51 Md. 290 ; Williams v. Association of America, 75 JIo. 319 ; Planters' Insurance Co., 57 Miss. 759. 24 370 THE LAW OF PERSONS. Tlicre were enacted at an early day in England restraining statutes, termed statutes of " mortmain," which restrained the acquisition of land in any case, unless by special license from the king. The object of these statutes was to more effectually Avork out a rule of the feudal system. By feudal law, if an owner of laud died, the heir could not take possession of the land without paying a sum of money to the king, called a " relief." This be- came an acknowledged source of royal revenue. It could not be applied to corporations, as they were then, in the eye of the law% immortal. As a practical equivalent, corporations were required by this legislation to obtain a royal license before they could safely acquire land, and the king on granting it could exact a sura of money equivalent, in his view, to the "relief" which would ha\e been likely to accrue to him in case the land had been owned by a natural person. It is a mistake to suppose that the mortmain acts were exclusively grounded in a jealousy of the Christian church, or even primarily. They were aimed at all corporations, whether religious or secular, for the special reason already stated. The mortmain acts have not been generally re-enacted m the States of this country. The special reason which led to them in England does not, as a matter of course, exist here. As far as there are restrictions upon the acquisition of land, they rest upon a different ground, perhaps upon a well-grounded apprehension that they may become formidable to the State. There is, how- ever, general restrictive legislation in the State of Pennsylvania. The more usual practice is to allow the acquisition of land, but to limit the amount in value or, it may be, in extent. If the amount in value be exceeded, the conveyance is not void, so that the grantor can reclaim the land. The question of transgression of the law can only be raised by the State in an appropriate pro- ceeding.^ The value referred to in the constituting law is that existing at the time of the acquisition of the land. If the value increases even enormously, there is no violation of the statute.^ Foreign as well as domestic corporations, if not restrained, may acquire land. A corporation, being a person, may act beyond the limits of the State creating it. A corporation may acquire land incidentally, as where, being authorized to loan money, and the loan being secured by mort- gage upon land, the mortgage is foreclosed. The corporation 1 In New York it is an action by the ^ Bogardus v. Trinity Church, 4 Saudf. Attorney-General. If he does not cause Ch. 633. the land to be forfeited the title remains in the corporation. CORPORATIONS. 371 may then become proprietor through the foreclosure. It is some- times required by law that the land be sold by the corporation within a fixed time after its acquisition. On this point the charter or constituting statute should be consulted. Again, the corporation may acquire land by aggressive acts of wrong, acquiesced in by owners for the time prescribed by law. Such an act is technically termed "•' disseisin." In the same man- ner a right to make use of another's land, such as a right of way, may be acquired by prescription. (2) The right to take land by will, or, stated in another form, the right to " devise " land, did not exist in the common law, except in certain localities by custom. To remedy this defect in the law, a statute was passed in the reign of Henry VIII., known as the Statute of Wills,i giving the general power to devise land, but omitting corporations from the class of " devisees," or per- sons wlio could take land by will. It thus is a rule that, as a general principle, a corporation cannot take land by will. The rule, however, must be stated with some qualifications and exceptions. The first qualification to the rule is, that while a corporation cannot take directly by will, it may, in some cases, where there is no prohibitory legislation, become a beneficiary under a trust. It was a rule of law long before the Statute of Wills, that a per- son might take a trust interest in land by will, though he could not take a legal estate in the land itself by that means. For example, an owner of land might, by common law, convey it to another to hold in trust for himself, and then, being no longer strict owner of the land, but rather being owner of a trust estate, he could devise that, and the devisee would ])e an assignee of such trust estate. The only point of difficulty is whether this rule could be applied to a corporation. There is no prohibition in the English Statute of Wills, (34 & 35 Henry YIIL, c. 5,) acting upon corporations. At most, there is but an exception., which may fairly be claimed not to change the common law. The point then is, under what circumstances can a corporation take a trust estate by will ? The answer to this inquiry is found in the law of charitable trusts. The Court of Chancery, from an early day, has enforced charitable trusts in land created by will, whether the land was held for corporations, or by individual trustees for specified purposes. It is not proposed to develop the law of charitable trusts in this place, but only to point out how a corporation may become a devisee. The law of charities is a branch of equity 1 32 Hen. VIII., c. 1 ; and 34 & 35 Id. c 5, to be construed together. 372 THE LAW OF TEESONS. iurisprudencG, and is found in equity reports and treatises. Other corporations (no* charitable) cannot be devisees, and a devise in o-eneral to such a corporation is void. H the corporation is made a trustee by a will, it may be that while the devise is void, the trust will be valid. In such a case, the court will appoint a trustee in place of the disabled corporation.^ The following provisions in the New York statutes relating to devises to corporations may be referred to : — 1. The general words of the statute law are : ^'- No devise to a corporation shall he valid unless such corporation be expressly authorized by its charter, or by statute, to take by devise." ^ This, it will be seen, is a prohibitory clause, and quite different in its effect from the mere exception in the English Statute of Wills. There seems to be no room for a charitable corporation to take land, except by express provisions of law. 2. Certain charitable corporations are expressly authorized by law to take land by will in trust. These are trusts to literary incorporated institutions, including incorporated colleges, for the following purposes : to establish and maintain an observatory or observatories, to found and maintain professorships and scholar- ships, to provide and keep in repair a place for the burial of the dead, or for any other specific purposes comprehended in their respective charters. Cities and villages are also allowed to take property in trust for specified purposes, and also the trustees of common schools. Such trusts may be created by grant or will in both real and personal estate.^ 3. There are several important general statutes prescribing formuljB for the organization of classes of charitable corporations, enabling corporations so organized to take land by will under specified terms. A leading one of this class is the "Act for the incorporation of benevolent, charitable, scientific, and missionary societies." * The same general principle is found in the act for founding rural cemetery associations,^ and in the act for estab- lishing private and family cemeteries.® In this last case, trustees are selected by the testator, and become incorporated in a mode prescribed by the act. " Library companies " have power to take in the same way,''' also clubs for social and recreative purposes ; ^ 1 Sonley v. Clockmakers' Co., 1 Bro. 5 Laws of 1847, ch. 133. Q^ Q 81. ® Laws of 1854, ch. 112; amended by 2 2 R. S. 57, § 3. Laws of 1871, ch. 68. 3 Laws of 1840, ch. 318, also Laws of ' Laws of 1853, ch. 395. 1841, ch. 261. ^ Laws of 1865, ch. 368 ; Laws of 1875, * Laws of 1848, ch. 319, and amenda- ch. 267. tory acts. See Rev. Stats, vol. iv. p. 1922, et seq. (8th ed.). co::roHATioNS. 373 societies for the i)i'eveiition of cruelty to children,! also religious societies.^ This is but a partial enumeration, (a) 4. There is also inserted in various special acts of incorpo- ration of particular societies the right to take by devise. These are very numerous, and cannot, with profit, be particularized. In most of these cases there is a limitation upon the amount or value of the land to be taken, or perhaps a requirement that the land be sold within a brief period after acquisition. A practical suggestion of value may here be made. It is fre- quently the case that a will must be drawn without an opportunity to examine the specific provisions of the laws constituting the corporation. It is for this reason wise, under such circumstances, whenever there is doubt, to insert a clause in the will directintj- the real estate to be treated as personal property. In this case, in the view of the law, it becomes personal estate under the doc- trine of equitable conversion, and the provision may sometimes be valid in that aspect, when it would be void as applicable to real estate. Where tlie circumstances of the case admit of it, the charter should always be consulted. 5. The rule laid down in the New York statutes that a cor- poration cannot take land by devise without express authority, applies to foreign as well as domestic corporations, if the land be situated in New York. Still, if the foreign law permits such a corporation to take land by devise, this is a sufficient compliance with the New York statute. Again, if the foreign law does not permit the corporation to take land by will, but does permit it to take personal property in that way, a direction in the will to sell the land and convert it into money will be carried into effect by the New York courts. 6. Reference must here be made to certain restrictions upon the power to devise land to corporations, of which there are two forms : one, of a broad and general nature, made with the view that the just and reasonable expectations of near relatives shall not be overlooked in devising or bequeathing property to charitable insti- tutions, and including personal as well as real estate ; the other, more precise and narrow, confined to particular corporations, and prescribing an interval of time between the execution of the will and the testator's death. 1 Laws of 1875, ch. 130. 2 Laws of 1813, ch. 60. (a) These statutes have been changed (Ch. 563 of the Laws of 1890, as amended and added to by later enactments, which, by ch. 687, of the Laws of 1892) should however, it is impracticable to refer to in be consulted. An important act also is detail. In addition to amendments relat- ch. 701 of the Laws of 1893, respecting ing to the particular laws mentioned in gifts for charitable purposes. See post, the text, the General Corporation Law p. 636. 374 THE LAW OF PERSONS. The leading statute of the first class is ch. 360 of the Laws of 1860: "No person having a husband, wife, child, or parent shall by his or her last will and testament devise or bequeath to any benevolent, charitable, literary, scientific, religious, or mis- sionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one half, and no more)." In determining the amount of one half, tlie widow's dower and the debts are to be first deducted. If the testator divides his estate among several corporations, etc., they cannot in the aggre- gate take more than one half.^ This law does not repeal other restrictions upon the capacity to take by devise, but is in its nature cumulative. The other case of inability to, take by devise is created by a statute of 1848 (ch. 319, § 6), which is applicable to "benevolent, charitable, scientific, and missionary societies." This law provides that no person leaving a wife or child or parent shall leave to an institution organized under that act more than one fourth of his or her estate, and tliat no such devise or bequest shall be valid in any will which shall not have been made and executed at least tivo months before the testator's death. It will be observed that a strong distinction is made in this law between wills so far as they contain provisions in favor of specified charitable, etc., societies, and those that do not. In the one case, the will, so far as it contains the charitable pro- visions, must have been executed at least two months before death, while in other respects the will may be made at any time before death. This provision is apparently conceived in a spirit of apprehension that undue influence may be exercised upon testators towards the close of life to induce them to make testamentary provisions in favor of charitable institutions. It is taken in substance from an English statute, enacted in the reign of George 11.^ In a large number of instances since the statute of 1848, special charters have been granted to charitable institutions by the legis- lature " subject to all the provisions of law relating to devises and bequests by last will and testament." It has been held that this clause subjects the charter to the rules of the law of 1848, and that such a society can take nothing by a will which is not executed 1 Chamberlain v. Chamberlain, 43 condemned in most vigorous terms in 2 N. Y. 424. Palgrave's History of Normandy and Eng- 2 9 Geo. 11. c. 36. This statute prin- land, 263. cipally affects real estate. Its spirit is C0KP0RATI0N3. 375 at least two months before the testators death. ^ (a) The restric- tion applies, even though the testator leave no wife, child, or parent.- Foreign corporations are not aftected by this jjrovision, it being in fact not applicable to all domestic corporations, but only to a certain specitied class.^ When a corporation has no capacity to take land by devise, the gift to it will be void. The same rule applies in New York, if its capacity is exceeded. The case does not resemljle that arising under the statutes of mortmain in a conveyance where the corj>o- ration is owner, except as against the State proceeding judicially for a forfeiture.* This doctrine assumed great importance in the case of a large bequest and devise to Cornell University. The contestants of the will having shown that the property of the University already equalled the limit provided in the charter, the gift was declared to be void.^ (3) As a general rule, a corporation has power to convey such property as it may own. Such a power is an incident to owner- ship. It will have the power to convey, though it be chartered only for a term of years, at the end of which its capacity to hold land will cease. A conveyance of the entire interest in the land will be valid, if made during its existence. It is said to have the perfect ownership of the land for the purpose of a conveyance, though it has a defeasible interest for the purpose of enjoyment.^ It is in special instances restricted from conveying on two general grounds : one by a rule of the law of trusts, the other by the terms of some statute. A corporation as well as a private person holding land for a specific purpose of a charitable nature is as a rule disabled from conveying the land free from the trust, ^ Kerr v. Dougherty, 79 N. Y. 327 ; main acts in England have the same effpct Lefevie I'. Lefevre, 59 N. Y. 434 ; Stephen- here as in the common law, in allowing sun V. Short, 92 N. Y. 433. the corporation to take the property and ^ Stei)henson i'. Short, supra. The case hold it by a defeasible title until proceed- of Jones V. Habersham, 107 U. S. 174, 177, ings are instituted by the sovereign power is not opposed to this view, the language for a forfeiture. His remarks are adverse of the statute in that case not being the to that view; still, nothing was really de- same. cided, except that, under the legislation 3 Hollis V. Drew Theol. Sera'y, 95 regaiding wills, if the amount of property N. Y. 166. bestowed exceed the limitations of law, the * Chamberlain v. Chamberlain, 43 excess is void, so that any one who would N. Y. 424, 439. have been interested in the property, had s Matter of McGraw, 111 N. Y. 66. there been no will, can raise the point of There is in the opinion of Pfxkham, J., invalidity. in the Court of Appeals, an elaborate dis- ,6 Nicoll v. N. Y. & Erie R. E. Co., 12 cussion of the point whether the provisions N. Y. 121. of acts in this country resembling mort- (rt) In the matter of Kavanagh, 125 N. Y. 418. 376 THE LAW OF PERSONS. except to one who purchased for a vahiable consideration and without jiotice of the ti'ust. It is a general rule of law that trus- tees of charities should never alienate the trust estate without the sanction of the court.^ Application may be made to the court by the attorney -general who is assumed to represent the public in- terest in the case.^ There are decisions holding that this doctrine does not in principle apply where the property is not given 07i a specific trust. It is then held for the general purposes of the cor- poration, and may be conveyed, or its form be changed. In other words, the property is held in a fiduciary character, though the specific form of ownership, whether personal or real, may from time to time be changed, as long as there is nothing in the charter to forbid it.^ Instances of statutes forbidding alienation of land by religious corjjorations are certain acts passed in the reign of Queen Eliza- beth. These are cited in the commentaries of Blackstone.* It is assumed by the New York courts that these statutes were adopted by the colonists of New York as a part of their common law, and have become a part of the existing common law of the State, so far as they have not been changed by legislation since the organi- zation of the State.^ Under this theory religious corporations must now apply to the legislature for the requisite authority to sell their land in any case where the purchase money does not inure to the benefit of the corporation. In the case where the corporation is to receive the benefit, a change in the general law permits the land to be sold under direction of the Supreme Court of the district or the County Court of the county where the land is situated, (a) VII. The right and capacity of a corporation to sue and to he sited. — It is a reasonable deduction from the capacity of a cor- poration to acquire rights under contracts and otherwise, that it should have the power to present its rights in court for enforce- 1 Hill on Trustees, 462, 463. Id. c. 11 ; 43 Id. c. 9. These extend the 2 A statute in England, known as Sir provisions of 1 Eliz c. 19, which referred Samuel Eomilly's Act, allows a petition to grants made by bishops and archbishops to be resorted to. 52 Geo. III. c. 101 i i?e to other ecclesiastical and eleemosynary Parke's Charity, 12 Sim. 329. corporations. 3 This seems to be the effect of Wet- ^ jy^ fjuyter v. The Trustees of St. more v. Parker, 52 N. Y. 450, though the Peter's Church, 3 Barb. Ch. 119 ; on ap- propertv there was personal. peal, 3 N. Y. 238 ; M. A. Baptist Church < 2 Bl Com. 320, 321. The statutes v. Baptist Church in Oliver St., 46 N. Y. are 13 Eliz. c. 10 ; 14 Id. c. 11 & 14 ; 18 131, 142, 143. («) For the procedure in such cases, see may apply for leave to mortgage its real Code of Civ. Pro. §§ 3390-3397. Matter property Laws of 1890, ch. 424, amend- of Church of the Messiah, 25 Abb. N. C. ins ch. 60 Laws of 1813. Matter of 354. In the same manner the corporation Churcli of the Messiah, supra. CORPORATIONS. 377 ment. No technical obstacle is in its way, for it is a person, and may appear in court in its corporate name, however numerous its membership may be. It is immaterial whether it be a foreign or a domestic corporation, though a foreign corporation may, if a State see fit, be placed under some restrictions, not applicable to domestic corporations, such as being required to give security for costs chargeable to it in case its suit is unsuccessful. The rule includes municipal as well as private corporations. So a State of the Union, a foreign State, or a monarch may sue in a corporate capacity. If a foreign nation sue in our courts, it must submit itself to the usual rules applicable to plaintiffs in actions.' Under these rules a foreign sovereign might sue in a court of equity as well as of law.^ For example, he might bring an action here to protect from invasion his right of issuing coin or paper money.^ No distinction is made in the English courts in this respect between a monarchy and a republic* The minister of a foreign nation does not so represent the nation itself that he can bring an action in his own name to recover national property.-^ A State of the United States may sue in the Federal or State courts in a proper case.^ The right of a corporation chartered in one State to sue a citi- zen or corporation of another State in the Federal courts is guaranteed by the United States Constitution ; ' and a corporation created by the laws of one State may maintain an action in the Federal courts of another State.^ It is a presumption which the courts will not allow to be rebutted, that if a corporation has a legal existence in a State, its corporators are citizens of that State for the purpose of availing itself of this principle.^ It has been further decided that a corporation chartered in a foreign country may be treated as an alien,^^ and for the same purpose, it would seem, its members might be presumed to be aliens. ^ Republic of Peru p. Weguelin, L. R. Illinois, 26 Wend. 192 (Senator Veh- 20 Eq. 140. Planck's opinion), and 2 Hill, 159 (Briox- ^ King of Spain v. Hullett, 1 CI. & F. son's, J., opinion). 333. ' Art. III. §2. 2 Emperor of Austria v. Day and Kos- ^ Insurance Co. v. "The C. D. Jr.," 1 suth, 2 Giff. 628; s. c. 3 De G. F. & J., Woods, 72 ; Nat. Park Bank v. Nichols, 217. 4 Bis. 315 ; Williams v. Missouri K. &. T. « United States v. Prioleau, 2 H. & M. R. R. Co., 3 Dill. 267. 559 ; United States v. McRae, L. R. 8 Eq. ^ This point at one time was a matter 69 ; United States v. Wagner, L. R. 2 Oh. of great uncertainty, but is now settled as App. 582. stated in the text. Ohio & M. R. R. Co. s Baron Penedo v. Johnson, 29 L. T. v. Wheeler, 1 Black, 286 ; Ins. Co. v. N. s. 452. Francis, 11 Wall. 210; Railroad Co. v. 6 As to the right of a State of the Union Harris, 12 Id. 65 ; Railway Co. v. Whitton, to sue in the courts of a sister State, see 13 Id. 270. State of Illinois v. Delafield, 8 Paige, 527 ; ^^ Society, &c. v. New Haven, 8 Wheat. S. c. under name of Delatield v. State of 464. 378 I'HE LAW OF PERSONS. The liability of a corporation to he sued is not governed in all respects by the same principles as the right to sue. The case of domestic corporations, foreign corporations, and foreign states will be considered separately. A domestic corporation may be sued in the courts of the State where it is chartered, or in the Federal courts, embracing the State of its origin, in the cases allowed by the United States Constitution. The proceedings in this case are not substantially different in an ordinary action from those which prevail in the case of a natural person. A successful party may obtain judg- ment, issue an execution, and sell the property of a corporate debtor, as in the case of an individual debtor. The creditor cannot sell the corporate franchise in this manner. This can only be reached by a proceeding in a court of equity. Corporations are in modern times largely treated as holding their property in trust, so that the most important litigations to which they are subject are in courts of equity. Courts of that class have the power to deal with the intricate questions involved through the medium of receivers and other officers, and by means of such orders and directions as are flexible and calculated to secure the rights of creditors with a due regard to the interests of shareholders and others interested in the corporate property. The details of this subject must be sought in local State statutes and in treatises and reports in equity. A foreign corporation could not, at common law, be sued in the courts of another State in regular form, since it could not be found there. It was considered to be always a non-resident defendant if sued in another State, incapable of leaving the State of its origin. ^ This general rule has been modified in many States by statutes authorizing the corporation's property to be seized and appro- priated to the payment of its debts. Such a proceeding has for its object the appropriation of property within the State rather than the rendering of a judgment enforceable in another State,^ (a) 1 Lathrop v. Union Pacific Ry. Co., 1 2 Pennoyer v. Neff, 95 U. S. 714. MacArthur, 234 ; Matter of M 'Queen v. Middletown Mfg. Co., 16 Johns. 5. («) The doctrine that a foreign corpo- rations are admitted to do business only ration is without the jurisdiction of every upon the condition that they shall desig- State except the State wherein it is or- nate some agent or perhaps some public ganized has been modified by statutes in officer to receive service in their behalf, many States to the extent of allowing If an action is begun in this manner, service of process upon representatives of the court acquires jurisdiction, and may such a corporation doing business within render a judgment valid and capable of the State. St. Clair v. Cox, 106 U. S. being enforced upon any property within 350. the jurisdiction. Gibbs v. Queen Ins. In not a few States, also, foreign corpo- Co., 63 N. Y. 114; Ex parte Schollen- COIiPOKATlOXS. i79 The statutes of New York upon this subject are to he found in the Code of Civil Procedure.^ The question of the liability of a foreign sovereign or govern- ment to be sued has not to any extent been presented in this country, though it has frequently been passed upon in the English courts. In a number of cases this has been due to the tem- porary presence of a foreign king in England. It is there declared to be a general rule that no action is maintainable in an English court against a foreign sovereign for anything done, or omitted to be done, in his public capacity as representative of the nation of wliich he is the head.^ This rule is applied even though the sov- ereign is also a British subject.^ The Khedive of Egypt is not a sovereign prince within this rule.* An important qualification of this rule has been made when a foreign government places funds in the hands of an agent in Eng- land to pay a contractor the amount due under a contract. Such a transaction, if unequivocal, might be regarded as an assignment (in equity) to the contractor, or a species of trust in his favor which a court of equity would administer.^ This exception will 1 See §§ 432, 707, & 1780. i The Charkieh, 28 L. T. N. s. 513. 2 Matter of De Haber and Queen of 5 Lariviere v. Morgan, L. R. 7 Ch. Portugal; Wadsworth and Queen of Spain, App. 550; on appeal, L. R, 7 H. L. 423. 17 Q. B. 171. This last decision reverses the lower court. ^ Bi'unswick v. King of Hanover, 2 H. L. Cases, 1. berger, 96 U. S. 369 ; Van Dresser v. Oregon Ry. & Xav. Co., 48 Fed. R. 202. Such a judgment would also be entitled to full faith and credit in another State. Lafayette Ins. Co. v. French, 18 How. U. S. 404; Pringle v. Woolworth, 90 N. Y. 502. If the corporation failed to comply with the statute, it would not, it is believed, be permitted to assert its non- compliance in order to avoid the jurisdic- tion of the courts, and service made on an agent or the prescribed public officer would be held sufficient. Ehrman v. Teu- tonia Ins. Co., 1 McCrary, 123 ; Hager- man v. Empire Slate Co., 97 Pa. St. 534. It is stated positively by many authori- ties that in order to be valid elsewhere, a judgment against a foreign corporation must show on its face that the corporation is doing business in the State where the judgment was rendered. Black on Judg- ments, § 910 ; Freeman on Judgments, §120&; St. Clair v. Cox, supra; Hen- ning V. Planters Ins. Co., 28 Fed. R. 440 ; Hazeltine v. Mississippi Val. Fire Ins. Co., 55 Fed. R. 743 ; Moulin v. Ins. Co., 24 N. J. Law R. 242. Nevertheless, it has been held in New York under the statutes of that State, that the court- ac- quired jurisdiction over a foreign corpora- tion having no office or property, and doing no birsiness within the State, by the service of a summons upon an officer temporarily in the State for pur- poses of his own. It was further stated that a judgment obtained upon such ser- vice would be valid for every purpose within the State, though its effect else- where was not discussed. Pope v. Terre Haute Car Jlanuf. Co., 87 N. Y. 137. See also Hiller v. Burlington, &c. Ry. Co., 70 N. Y. 223 ; Tuchband r. Chi- cago & Alton Ry. Co., 115 N. Y. 437. A contrary rule to that laid down in Pope V. Terre Haute Car Manuf. Co., supra, is maintained in Phillips v. Library Co., 141 Pa. St. 462. See also Jloulin v. Insurance Co., supra ; Newell v. The Great "Western Ry. Co., 19 Mich. 336 ; State v. Dist. Court for Ramsey Co., 26 Minn. 233. 3S0 THE LAW OF PERSONS. not be applied in favor of the holder of the bonds of a foreign government, though there be money in England in the hands of an agent which the foreign government has bound itself to direct him to apply to the payment of interest. In this last case there is no fiduciary relation between the agent and the bond-holders.^ To appropriate the fund would be an indirect mode of holding the foreign government responsible for the payment of its bonds in an English court. In these last two cases the foreign govern- ment did not appear in the action. It would seem that it might appear, if it saw fit, and submit to the jurisdiction of the court in appropriating the funds. It is a general rule that a State cannot be sued in its own courts without its consent. It may, however, upon grounds of justice and expediency, allow itself to be sued in certain cases, as lias long been the rule in England, by means of a proceeding termed " a petition of right." '^ By a similar course, claims against the United States are decided by the Court of Claims. Something resembling this is found in some of our States. There was a provision of great breadth in the United States Constitution, as at first adopted, permitting an action or suit to be brought by individual plaintiffs in the United States courts against a State.2 This provision was construed by the Supreme Court of the United States to permit an individual citizen of one State to bring an action against a State of which he was not a citizen in the Federal Court.* This decision led to the Eleventh Amend- ment of the Constitution, as follows : " The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign state." The plain effect of this clause is to prevent a direct action or suit against the State by a citizen either of this country or of a foreign country, A controversy of great moment has arisen as to the point whether this clause prevents proceed- ings against the agents of the State who, in obedience to a law of tlie State, assume to violate the obligation of a contract claimed to have been made between the State and individuals. The Supreme Court of the United States, by a narrow majority, has decided that an action might be brought against the agents of the 1 Twycross v. Dreyfus, L. R. 5 Ch. two or more States ; between a State and Div. 605. citizens of another State, . . . and between 2 See ante, p. .3. a State or the citizens thereof and foreign 3 Art. III. § 2. The words are that States, citizens, or subjects." tlip judicial power of the United States * Chisholm v. Georgia, 2 Dall. 419. shall extend "to controversies between CORPORATIONS. 3S1 State in such a case, notwithstanding the constitutional provision, as that would not be an action against the State. If a tax col- lector or other State officer takes the property of a private person under an unconstitutional law, he cannot shield himself from liability, since such a pretended law is in truth not a law ; so that i\\Q action is really against him as if he had not been an ofhcer.i This principle will not permit a suit to be brought nominally against a State officer, which is in reality a suit against the State ; as if the object be, for example, to determine the obligations of the State on certain State scrip.^ A suit to compel State officers to do that which a State statute requires them to do is not a suit against the State in the sense of the Constitution.^ VIII. Special questions as to the powers of corporations. — (1) The question of status. — Under this topic will be considered two principal points : first, the domicile of a corporation ; second, the capacity of a corporation to act beyond the limits of the State creating it. It is a rule of American law that a corporation is domiciled in the State where it is created.^ It cannot, if a trading corporation, hold a meeting of stockholders beyond the State limits.^ («) The rule in English law is different, as it allows the domicile of a trading corporation to be determined by the place where the principal business is carried on, " where it has the centre of its aff"airs" {derMittelpimkt der Geschafte'), even though bevond the territory of the State where the corporation is created. In a recent case the English court inquired on this basis whether an English corporation was domiciled in Italy, and, in the same con- nection, whether a corporation was domiciled in Calcutta.^ Leaving this question out of view, the general rule would be 1 Poindexter v. Greenhow, 114 U. S. Black, 286; B. & 0. R. R. Co. v. Glenn. 270; White v. Greenhow, Id. 307; and 28 Md. 287; Blackstone Manuf. Co. v. other cases (called the Virginia Coupon Inhab. of Blackstone, 13 Gray, 488. Cases). 5 Ormshy v. Vermont Copper Min. Co., 2 Hagood V. Southern, 117 U. S. 52. 56 N. Y. 623. In re Ayers, 123 U. S. 443. 6 Cesena Sulphur Co. v. Nicholson, L. 3 Rolston V. Missouri Fund Com'rs, 120 R. 1 Exch. Div. 428 ; Calcutta Jute ^lills U. S. 390. Co. V. Nicholson, Id. See also Attorney- 4 Bank of Augusta v. Earle, 13 Pet. Generals. Alexander, L. R. 10 Exch. 20. 519; Ohio & M. R. R. Co. v. Wheeler, 1 (a) A corporation chartered by several tion could' hold meetings of its stockholders States with the same capacities and powers in any one State, so as to bind the corpora- has been held to have a domicile in each tion in respect to its property everywhere. State, County of Allegheny v. Cleveland, Graham v. Boston, etc. Ry. Co., 118 U. S. etc. Ry. Co. 51 Pa. St. 228. In the ab- 161. sence of statutory provision, such a corpora- 382 THE LAW OF PERSONS. as to the local place of residence of a trading corporation within the state of its domicile, that the principal place of administration must be regarded.^ Where the inquiry is as to other corpora- tions, such as churches or charitable corporations, the general rule is that they reside where their functions are to be discharged. So that a church organized for work in the city of New York has its residence there.^ The existence of a foreign corporation is recognized in the courts of other States. The capacity to enter into legal trans- actions in such a case must be determined by an examination of the law constituting the corporation, as well as of the country where the transactions take place. A State may prevent a foreign corporation from entering into a contract which it might allow in the case of a domestic corpora- tion. This principle applies as between the States of the Union. A corporation chartered in Ohio is in New York a foreign corpo- ration. A State of the Union may impose conditions upon a corporation chartered elsewhere as to business transacted w4thin its limits. These must be observed, and a contract made without observance of them will be void,^(a) Thus, if the provision were that a foreign Corporation, before doing any business in the State, must duly execute a power of attorney appointing an agent, upon whom all legal process may be served in suits against the corpo- ration, a contract made without such an appointment would be illegal and void.* A statute requiring an act to be done after commencing business, such as filing a specified instrument within thirty days after that time, would not prohibit the corporation from continuing business after the time had expired, even though it had failed to comply with the statute.^ A law passed by a State legislature prohibiting a foreign cor- poration when sued in its courts from removing the case under the provisions of the Act of Congress applicable to the subject into the United States courts, is unconstitutional and void, and the ^ Keynsharu Blue Lias Co. v. Baker, 2 * Tn re Comstock, 3 Sawy. C. Ct. 218 ; H. &C."729; Taylor i;. The Crowland Gas Semple v. Bank of British Columbia, 5 & Coke Co., 11 Exch. 1; Adams v. Gt. W. Sawy. 88. R. R. Co., 6 H. & N. 404. s'lSTorthwestern Mut. Life Ins. Co. v. 2 Dicey on Domicil, 111, 112. Overholt, 6 Cent. L. J. 188. 3 Lamb v. Lamb, 13 Bankr. 'Res. 17. (a) Union Cent. Life Ins. Co v. Thomas, void unless it is plain the legislature so in- 46 Ind. 44; Dudley v. Collier, 87 Ala. 431. tended. Toledo Tie, etc. Co. v. Thomas, A distinction is made by some authorities 33 W. Va. 566 ; Sherwood v. Alvis, S3 between executed and executory contracts. Ala. 115 ; Morawetz, Private Corporations, Farrior v. New Eng. Mort. Co., 88 Ala. § 665. 275. The contract will not be declared CORPORATIONS. 3S3 removal may be made regardless of the law. Still, if a law should be framed so as to revoke the license of a foreign corporation to do business within the State if it made such a removal, the law would be valid, and the corporation would have to elect between withdrawing from the State and complying with the law. This rule rests upon the proposition that as the State has the right to exclude foreign corporations, the Federal courts will not inquire into the reasons for the State's action, or into the means of enforcing it.^ (2) Corporatiotis as trustees. — It was formerly a mooted ques- tion whether a corporation could be a trustee. It is now well settled that it can be. Any other view is based on a mere techni- cality. If a trading corporation, it is a trustee as between itself and its shareholders. It may also hold property in express trust, as has been shown in the case of charitable corporations. More- over, in modern times corporations are expressly created for the purpose of acting as trustees for third persons. Of these there are many examples in the State of New York, having large capital and transacting a great amount of fiduciary business. These cor- porations, called Trust Companies, act as guardians for wards, so far as administering estates are concerned, a* trustees to pay over income to beneficiaries, as trustees of railroad mortgages in behalf of bondholders, and in other analogous transactions. Com- panies of this class are placed under the control of the superin- tendent of the banking department, and are required to make periodical reports to him, and to submit to an examination by competent experts, and to deposit with him as a guarantee fund ten per cent, of their paid up capital stock, (a) Companies of this class have proved highly useful to the community, and, with few exceptions, have been managed with fidelity and success. (3) Construction of corporate charters. — It is a general rule of law that a corporation possesses no powers except those which are specifically granted, or which are incidental to specific grants. This general rule is declared by statute also in some States ; e. f/„ in New York. Whenever privileges are granted to a corporation, they are to be strictly construed ; nothing passes but what is granted in clear and explicit terms.^ The principal difficulty is in determining what powers are incidental to specific grants. A few instances may be mentioned. Thus, a corporation has an implied power to accept a bill of J Doyle r. Continental Ins. Co., 94 ^ People y. Newton, 112 N. Y. 396. U. S. 535. {a) See Laws of 1892, ch. 689, § 14. 3S4 THE LAW OF PERSONS. exchange or make a promissory note based upon a debt contracted by it in the course of its business.^ This rule could not be ap- plied to a note given outside of its legitimate business. It must affirmatively appear that it was made in the course of its business.^ This rule is applied to a municipal corporation as well as to one of a private nature.^ A corporation has an implied power to borrow money to use in its legitimate business, and to give its note or draft on that account.* It may, of course, pay its lawful debts, and may to that end make a general assignment in trust for its creditors, unless prohibited by statute.^ (a) A trading corporation may, as a trustee for its stockholders, bring an action in their behalf to cancel spurious certificates of stock. ^ It cannot, however, as a rule, use its funds to sustain another corporation, (h) A corpora- tion having power to insure lives has an incidental power to invest its property (held as a protection for the insured) in approved securities, such as suitable bonds and mortgnges." If, however, a corporation be restricted by statute to a par- ticular mode of doing business, it must follow that method. If it have authority to loan only upon bond and mortgage, any other investment will be void.^ This is true both of the security and the loan itself.^ Though some of these cases seem severe and harsh in their operation, they would appear to be sound, as long as the view prevails that a corporation is a creature of limited powers. Section IV. The Visitation of Charitable Corporations. — The word " visit," as here used, means the right of one or more per- sons known as visitors, to examine into the condition of the cor- poration, to search for abuses and irregularities, and to correct them if found to exist. In some instances their action is invoked by persons interested in the corporate affairs. If the corporate 1 Moss V. Oakley, 2 Hill, 265 ; Part- 6 n. Y. & N. H. R. R. Co. v. Schuyler ridge v. Badger, 25 Barb. 146. 17 N. Y. 592. 2 McCuUough V. Moss, 5 Den. 567. "^ Farmers' Loan & Trust Co. v. Clowes, 3 Halstead v. Mayor, &c. of N. Y., 3 3 N. Y. 470. N. Y. 430. 8 New York Firemen Ins. Co. v. Ely, * Curtis V. Leavitt, 15 N. Y. 9. 2 Cow. 678. 5 Hurlbut V. Carter, 21 Barb. 221. ^ Life & Fire Ins. Co. v. Mechanic Fire Ins. Co., 7 Wend. 31. («) Such assignments are frequently be upheld, if valid by the laws of its prohibited, when the corporation is insol- domicile, even though executed in New vent. In New York, see The Stock Cor- York. Vanderpoel v. Gorman, 140 N. Y. poration Law, § 48. In the absence of 563. express words, a foreign corporation is not (b) Cf. Holmes v. Willard, 125 N. Y. regarded as within the terms of this pro- 75. hibition, and an assignment by it would CORPORATIONS. 385 body has become inactive or dormant, it should be stimulated to action. If it is acting extravagantly and without due warrant, it should be restrained. Visitation, in its strict sense, is applicable to charitable and ecclesiastical corporations. It is not necessary to consider the case of ecclesiastical corporations, there being none in this country. The " visitation " of charitable corporations is derived from the doctrine of foundations and "founders." Tlie word "founder" is used in two senses in English corporation law. One meaning refers to the person who in the outset supplies the property to carry on the corporate business ; the other refers to the king or other authority that gives legal existence to the corporation. No particular words are necessary to create a visitor. An authority to one to inspect the foundation and correct what he may find amiss, makes him a visitor. The necessity of a visitor arises from the fact that charitable institutions are in their nature per- petual, and in the lapse of time abuses may arise. " Visiting" is not confined to corporations, but may extend to unincorporated trustees. The more common case found in the law books is the visitation of corporations. There may be a series of founda- tions made by different persons, so that one may have an original design upon which later foundations are grafted. In such a case the one who first supplied the funds would be deemed the founder, unless there may be special circumstances varying the rule. Tlie king, in England, has in many instances established a charitable foundation. The Lord Chancellor, in such a case, becomes a visi- tor, as I'epresenting the king. He does not in such a case hold the Court of Chancery, but has an authority resembling that of a visitor on a private foundation or an endowment. In other cases, the visitatorial power vests in the founder, and on his death passes to his heirs ; but if he leave no heirs, it de- volves upon the king. The authority may be delegated to others by the founder. The fundamental principle is, that the owner of the property has the right to oversee within certain limits the disposition that may be made of it. It is common for the founder to lay down rules for the manage- ment of the institution. These are commonly called statutes. It is a part of the business of the visitor to see that these " statutes" are observed. These statutes are frequently in England of long standing, often whimsical in their nature, and poorly suited to modern conditions of life. Unless contrary to public policy, or illegal in their nature, they will be enforced, the will of the founder, though long since dead, being still followed. Some 25 386 THE LAW OF PEESONS. remarkable instances of this rule are found collected in a work called " The Dead Hand." i A distinction in the law of visitation of corporate charities is to be taken betvv^een the case where the funds belong to the cor- poration for its general purposes, and where thcj are vested in it for special purposes, or, in other words, held on special trusts. The distinction is so important that illustrative examples will be useful. Let it be supposed that a testator simply bequeaths to a college ten thousand dollars. No restriction is placed by him upon the use of the money. The corporation may use it for any legitimate purpose. It holds the property in a fiduciary character, but not on any special ti-ust. On the other hand, let a testator give a fund to be invested, of which the income shall be used to found a particular professorship, or establish a scholarship to be filled only from time to time by beneficiaries bearing his own name. There is now a special trust. These two cases will now be treated separately. (1) Charitable funds held for general purposes. — A prelimi- nary remark may properly be made as to the meaning of the word "charitable," as applied to corporations, and also applicable to trusts under the care of trustees, not incorporated. The word 1 This book was written by Sir Arthur hundred years ago. Other cases still Hobhouse, now Lord Hobhouse, a law- more peculiar might have been cited, yer of great distinction, an English judge, Sometimes the statutes encourage wild and a member of the judicial committee acts on the part of the students, as in Sir of the Privy Council. (London, 1880.) He John Deane's charity in Wilton, County of refers to the case of Bishop Pursglove, who Chester, A. D. 1557, where the scholars founded a school in Hull in the year 1560. were directed by the founder to "bar out His scholars were to range from those who the schoolmaster " a week before Easter had not yet learned to speak plainly to and Christmas. those who could read Horace and Cicero, It has been suggested by leading writers and write Latin verses. The school is on this topic, that the rules of law should divided into four forms, and the studies be more flexible than at present, and that of each form were prescribed by the bishop while the views of ' ' founders " or donors in minute detail. The whole teaching, should be observed when their plans are substantially, is to be done by the master reasonable or practicable, yet that the in person, beginning with teaching the proper court should have power to modify children to pronounce and sound their them where there is clear reason to justify letters, and ending with the highest work, such action. See "The Dead Hand," He must be teaching ten hours per day in p. 229. Any scheme of this kind should be the summer and eight in the winter, with adopted with much caution, as it might only five weeks' vacation. The scheme of result in diminishing or perhaps extin- the bishop still prevails, leading to a guishing charitable gifts or bequests. In deadly feud from time to time between this country, reference would have to be the master and the governors of the char- made in altering the charter of a charitable ity, who threaten to dismiss him if he corporation to the prohibitions of the United does not follow literally the plan of in- States Constitution as to the impairment struction and discipline laid down three of the obligation of contracts. CORPORATIOXS. 387 " charitable " has long been in use to designate trusts for public as distinguished from private purposes. There is in a charity some assumed element of public utility. Although in existence from the earliest period (derived in all probability from the Roman law), they assumed special prominence towards the close of the reign of Queen Elizabeth, owing to a statute passed at that time making an enumeration of them, and providing a special judicial mode of redressing abuses in their management.^ This special tribunal was auxiliary to the Court of Chancery. After a time it became obsolete, and the entire jurisdiction was exercised by the Court of Chancery. The enumeration of exist- ing charitable institutions was very imperfect, so that the court has established new ones from time to time as occasion required, having in them the essential element of public utility. One highly important distinction between a private trust and a charit- able trust is, that while the former can only be made for a limited period, varying in the different States, charitable trusts may be made perpetual; so that a fund may be established to produce a perpetual income to be devoted from time to time to the purposes of the charity. Assuming now that property is given to a charitable corpora- tion for its general j'^urposes^ the visitatorial power which may be vested in the corporation will include both the internal man- agement of its affairs and the disposition of its property. In other words, it is visitor both over the beneficiaries and over the property, though as its relation to the property is a fiduciary one, the court in a plain case of diversion of the property to ille- gitimate uses, would interfere. (2) Special trusts. — In this case the powers of the visitors are greatly circumscribed. A general statement is, that while the corporation may control internal management, — as, for example, pass resolutions, hold examinations, confer degrees, etc., — 3'et when any question of a breach of trust arises, the Court of Chan- cery may give redress, without reference to any opposing action of the visitor. The court does not proceed by way of appeal, but has an inherent power to redress the breach of trust. The great case on this subject. Green v. Rutherforth,^ was disposed of by Lord Hardwicke, and has ever since been followed. The visitor may be the founder, or his heirs, a special individual appointed, or a corporation, and either a public, ecclesiastical, or lay corpo- ration. In every case, the inquiry is the same ; namely, Is there a special trust ? If so, has it been violated ? If the public at large is interested, the attorney-general will present the matter 1 43 Eliz. c. 4 (A. D. 1601). 2 1 Ves. Sr. 462. 388 THE LA.W OF PERSONS. to the court. If an individual is injured, as if a professor ap- pointed during- good behavior, and having a fixed stipend from a special fund, is removed improperly by the visitor, the court will interfere on his own application, and restore him to his rights.^ The jurisdiction of the visitor, limited as already stated, is in general absolute and without appeal upon the principle that in those societies error of judgment or even the cliance of partiality or injustice is a less evil than the duration of contention.^ The visitor proceeds in a summary and informal manner; still the great principle must be followed that a person is not to be con- demned without an opportunity to be heard. In some of the States there are statutes permitting an appeal from the sentences of visitors. In general, however, the subject remains substantially as at common law. A wcU-lvnown example of an appeal is found in Massachusetts in the instance of the Andover Theological Seminary.^ The cases cited in the note involved the question whether the visitors proceeded according to law in the removal of Professor Murdoclc, one of the professors in the institution. The subject of visitation is frequently applied to the manage- ment of colleges and other institutions of education. Only its general principles can be adopted in this country, owing to the difference between the organization of such institutions in England and in the United States. In tlie English colleges the corporation consists of the teaching and governing body itself. There no board of trustees exists as is usually the case here. The visitor is called in occasionally to hear an appeal or to quiet dissension. He is frequently but a single person. He does not act directly in the management of the institution, but rather con- trols the acts of others, and keeps them witliin the requirements of the statutes. He is not the corporation, but is set over it. On the other hand, the management of colleges here is as a rule con- fided to persons who are not the teachers or actual governors, but are called trustees. These form the corporation. The officers have no self-perpetuating power, and as a rule hold office at the 1 The cases in England upon this point 435. For cases in which a cKaimant pre- are now very numerous and uniform. In sented his own claim without the inter- addition to Green v. Paitherforth, already vention of the Att'y-Gen'l see Thomson v. cited, there may be examined Att'y-Gen'l University of London, 10 Jur. N. s. 669 ; V. Corporation of Bedford, 2 Ves. Sr. 505 ; Dangars v. Rivaz, 28 Beav. 233. Att'y-Gen'l v. Middleton, Id. 327 ; Att'y- '^ St. John's College v. Todington, 1 Gen'l V. Lubbock, 1 C. P. Coop. 15 ; Att'y- Burr. 159, 2^^^ Lord Mansfield, p. 199. Gen'l y. Browne's Hospital, 17 Sim. 137; ^ Murdock, Appellant, 7 Pick. 303; Att'y-Gen'l v. Di.Kie, 13 Ves. 519; Att'y- also Murdock v. Phillips Academy, 12 Gen'l y. Magdalen Coll., 10 Beav. 402; Pick. 244, construing stat. of 1823, ch. 50, Att'y-Gen'l v. St. Cross Hospital, 17 Beav. passed January 17, IS'24. CORPORATIONS. 389 pleasure of the trustees. Under such circumstances, the power of visitation, being vested in the trustees, consists principally in supervising the conduct of their own officers or employees, in lay- ing down rules for their action, in accordance witli any statutes of the founder. As visitors, their action would be final in the same way as in England. The funds are administered by the trustees subject to the supervisory power of the court. Where a new professorship or scholarship is founded, it is the duty of the trustees to apply the funds as pointed out by the founder, in con- formity with the original foundation. If there be no such regu- lations prescribed by him, a general gift may be devoted to the general purposes of the institution.^ Section V. Judicial Control of Corporations. — Although " visitation" in its technical sense has no application to business corporations, still they are liable to judicial control in case of abuse of power. In this class of cases there are specific remedies, such as a quo warranto^ an information in the nature of a quo warranto, or a writ of scire facias. When a corporation refuses to act, a mandamus may be resorted to. For abuse of trust, the courts of equity may give redress. Remedies of the first class are obtained in a court of law, and are sometimes termed " pre- rogative writs," as being set in motion by the sovereign power in the State. Scire facias is a term derived from the words used at the com- mencement of the old writ in Latin. It may be resorted to either where there is an original defect in the charter, as where it was obtained by fraud, or where a legal corporation, in full pos- session of powers, abuses them ; a quo icarranto is properly resorted to where the corporation is imperfectly organized, but nevertheless continues to act as a corporation.^ This writ is quite technical in its form, and in modern times the practice is to resort to an" information in the nature of a quo icarranto'^^ which is much simpler.^ The main object of the proceedinc; is to try the right of the corporation to exercise the powers which it claims ; 1 The foundation of Girard College in ^ ^^i information is an accusation ex- Philadelphia is an instance where detailed hibited against a person for a criminal rules are prescribed by the founder. These offence. It differs from an imlictment are in part set forth in the report of the which is found by a grand jury in that it case in the Supreme Court of the United is only the allegation of the party who States, where various questions concerning files it, e.g., the. attorney-general. It is the foundation were litigated. The City allowable in this class of cases on the of Philadelphia was made trustee and ground that the usurpation of power is in visitor. Vidal v. Girard's E.xecutors, 2 the nature of a criminal offence. Leave of How. U. S. 127, 129-136. the court to file it must in general be 2 Grant on Corporation.s, 296. obtained. 390 THE LAW OF PERSONS. and if it appear to have no right, then to declare the result, which may be the forfeiture of the charter. In many of the States tlicse proceedings are regulated by codes of procedure. The substance of the remedies referred to is re- tained, but the methods are simplified. ^ There are other remedies to enforce a claim against a corporation, which may result in its dissolution. Tiiese will be considered hereafter. Remedies also exist against the officers of a corporation for mal- feasance in office for abuse of trust as well as for misleading third persons who may be induced to trust the corporation or perhaps to purchase its stock or other property by reason of fraudulent representations. This topic is of especial importance in the case of stock corporations. A large part of the business of such cor- porations is managed by boards of managers, directors, or trus- tees. To them great pecuniary interests are frequently confided, which are not infrequently abused. Independent of statute, the remedies to be sought by the owners of the funds will be those applied by general rules of law to defaulting trustees. Creditors may also have a standing in court to consider the funds as held 171 trust for the payment of their claims, in which case the directors, etc., may be held personally accountable to them. It is a general principle of law that, if the directors exercise their functions for the purpose of injuring the corporate interests, they are personally liable for any loss sustained.^ In the discussion of this subject it is necessary to consider the relation of corporate trustees or directors towards the corpora- tion, their position towards third persons, the rights of third persons against the corporation for the misconduct of its trustees or directors, and finally the remedies existing in favor of the cor- poration against its trustees or directors for their negligent or wilful misconduct. (1) The relation of corporate trustees to the corporation. — There are two aspects in which the relation of directors and trus- tees to the corporation may be regarded ; one is, that of agents, and the other that of strict trustees. Their duties in the charac- ter of agents would closely resemble those of other agents, and would be governed by the general rules of the law of agency. It is a settled rule, that if they exercise their functions for the purpose of injuring the corporate interests, they are personally liable.^ '■ See New York Code of Civil Pro- by tlie regents of the university or by act cedure, §§ 1797-1803. These sections do of the legislature, nor to a municipal or not apply to an incorporated library other political corporation. § 1804. society, nor to a religious corporation, nor 2 Att'y-Gen'l v. Wilson, 1 Cr. & Ph. 1. to a select school or academy incorporated ^ l^l. CORPORA.TIOXS. 391 In order to be regarded as strict trustees, they must have the title to the property. In such a case, their liability could only be en- forced in equity at the suit of the corporation or others represent- ing it, e.g., a receiver. Special and summary remedies are some- times provided by statute, as where an officer will not surrender documents or pay over moneys to the corporation. Such reme- dies are usually deemed to be cumulative, and do not displace the ordinary right of action for breach of official duty.i Referring now more particularly to trading corporations, it has been held to be a great and broad principle of justice, applicable to all systems of law, unless there be evidence to the contrary, that the governing body of a corporation cannot use its funds for any purpose other than those for which they were contributed. Any powers given to the governors, whether by statute or other- wise, are to be construed vvith reference to this principle.^ If the directors use the funds for unauthorized transactions,' they cannot retain the benefit of them to their own use, unless with the consent of the shareholders, after the particulars of the transaction have been fully explained to them.^ A director holds fiduciary relations to the company, and in any transaction between him and the company, is bound to communicate all that knowledge of its affairs which he could have acquired in the due discharge of his duties. If he buy its obligations at a discount without having observed this rule, he cannot enforce them in full, but can only claim what he paid for them with interest.* {a) Directors are liable for losses occasioned by gross neglect.^ {b) This rule cannot be extended to cases where tlie misfeasance was committed in the director's absence and without his knowledge.*^ (c) Presence at a meeting of the directors where a breach of trust is committed without dissent by a particular director is deemed to be an active participation by him in such breach of trust.''' 1 JIayor, &c. of Lichfield v. Simpson, * Ex parte Larking, L. E. 4 Ch. D. 8 Q. B. 65. 566. 2 Pickering v. Stephenson, L. R. 14 ^ Ov^erend & Gurney Co. v. Gibb, L. R. Eq. 322. 5 H. L. Gas. 480. 3 General Exch. Bk. v. Homer, L. R. ^ Land Credit Co., &c. v. Fermoy, L. 9 Eq. 480. R. 5 Ch. App. 763. 7 Power V. O'Connor, 19 W. R. 923. {a) Bulkley v. Whitcomb, 121 N. Y. corporation against its officers to recover 107. damages caused by mere error of judgment [h) Hun V. Gary, 82 N. Y. 65 ; Wallace is not maintainable. Holmes v. Willard, V. Lincoln Savings Bank, 89 Tenn. 630 ; 125 N. Y. 75. BrinckerhofT v. Bostwick, 88 N. Y. 52 ; (c) Movius v. Lee, 30 Fed. R. 208. Cf. Marshall v. F. & M. Savings Bank of Al- Williams v. McKay, 46 N. J. Eq. 25. exandria, 85 Va. 676. An action by a 392 THE LAW OF PERSONS. (2) The position of the trustees or directors towards third per- sons. — Directors may make themselves liable to third persons by any words or acts on their part which constitute a contract by them. For example, they may sign notes which in legal view pur- port to bind themselves instead of the corporation.^ So they may warrant to third persons that a particular person has authority to act as agent for the company, when he has no such authority .2 A representation to that effect which turns out to be untrue would be construed to be such a warranty. This principle cannot be extended to a statement as to a rule of law. A person cannot be supposed to warrant what the rule of law is concerning a particu- lar transaction. It follows that a letter signed by directors and addressed to a bank, requesting it to honor checks when drawn in a particular manner, is not a representation that the directors had any authority to overdraw the account of the company, nor does it import any undertaking that the directors would be personally liable, if the bank did not pay the checks.^ The directors may be liable to a third person for the publication of false reports whereby the latter, relying upon them, sustains injury, — as if, for example, he had become a stockholder in reliance upon the statements.* Where the directors make an erroneous state- ment of profits, but without bad intent, they will not in general be liable.^ Questions of this kind frequently arise in connection with the publication of a prospectus stating the organization and prospects of some new adventure. The general rule is, that no material mis-statement or even concealment is proper. The public should have the same opportunity of judging of everything material which the projectors of the undertaking themselves possess.^ (a) The great object of a prospectus is to invite original shareholders to unite themselves with the proposed undertaking. If such a shareholder is misled to his injury by the fraudulent statements of the directors, he has his right of action. This doctrine cannot be extended to one who purchases shares from the original subscriber, there being no direct connection between such a person and the 1 Datton V. Marsh, L. R. 6 Q. B. 361. 453 ; Cullen v. Thomson's Trustees, 4 2 Cherry v. Colonial Bk. of Australasia, Macq. H. L. Cas. 424, 440. See also 38 L. J. (P. C.) 49. Davidson v. Tulloch, 3 Id. 783. 3 Beattie v. Lord Ebury, L. R. 7 Ch. ^ Jackson v. Turquand, L. R. 4 H. L. App. 777 ; on appeal, L. R. 7 H. L. Cas. Cas. 305. 102. 6 Cent. Ry. Co. of Venezuela v. Kisch, 4 Clarke v. Dickson, 6 C. B. n. s. L. R. 2 H. L. Cas. 99. (a) Cf. Brewster v. Hatch, 122 N. Y. Arnison v. Smith, L. R. 41 Ch. D. 348; 349 ; Morgan v. Skiddy, 62 N. Y. 319 ; Knox v. Haynum, 67 L. T. N. s. 137. CORPOKATIONS. 393 signers of the fraudulent prospectus.^ If the directors, in making the statements in question, act in good faith, they will not be liable. The cause of action is grounded upon deceit. It is a per- sonal action, and if the director die without having been charged, his executors are not liable, unless the estate of the deceased had been benefited by the deceit.^ Instead of positive false statements the directors may fraudu- lently conceal facts which, if they had been known, would have influenced a subscriber to the stock in making a subscription. It is very doubtful whether an action will lie in that case. There are but few cases in which concealment will be construed to be fraudu- lent. It is certainly so in some special contracts, such as insur- ance or suretyship ; but in ordinary cases, one party may lawfully refrain from disclosure.'^ (a) The principles to be followed in disposing of a case of this kind are those which are applicable to an ordinary action for damages for deceit.* Where the statement is capable of two senses, one of which is true and the other un- true, it will lie with the plaintiff to show that he took it and acted upon it in the sense in which it was untrue.^ It will not be neces- sary to show that he acted solely on the untrue statement. It will be sufficient if that were material and influenced his conduct.^ The statement must be known by the defendant to be false, or he must have had no reasonable ground for believing it to be true.'(&) The case of Peek v. Derry cited in the note contains a thorough exposition of this subject, particularly as to the point whether a statement made by a person who has no reasonable ground to believe it to be true is a fraud.^ (c) 1 Peek V. Gurney, L. R. 13 Eq. 79; c. 131, § 38, requires disclosure in certain on appeal, L. E. 6 H. L. Cas. 377. The specified cases. This statute was intended point is decided in the appellate court, for the protection of shareholders, not for pp. 396-400, per Lord Chelmsford, and bondholders, etc. Cornell v. Hay, L. R. pp. 410-413, per Lord Cairns. The cases 8 C. P. 328. of Bagshaw v. Se3miour, 18 C. B. 903, * Arkwright v. Newbold, L. Iv. 17 Ch. and Bedford v. Bagshaw, 4 H. & N. 538, D. 301. allowing the assignee of shares to sue, ^ Smith v. Chadwick, L. R. 9 App. Cas. were overruled. 187. 2 Peekv. Gurney, L.R. 6 H.L. Cas. 377. 6 Edgington v. Fitzinaurice, L. R. 29 3 The rule is stated in this way by Lord Ch. D. 459. Cairns. Mere non -disclosure of facts, un- '' Peek v. Derry, 37 Id. 541. less such non-disclosure have the effect of ^ peek v. Derry, supra. See opinion making the disclosed facts absolutely false, of Cotton, L. .!., pp. 567, 568. Also of will not suffice. L. R. 6 H. L. Cas. 403. Hannen, J., p. 578, and ol Lopes, L. J., The English statute of 1867, 30 & 31 Vict. 585. (a) Crowell v. Jackson, 53 N. J. Law, (c) This case was reversed on appeal 656. (Derry v. Peek, L. R. 14 App. Cas. 337), (i) See Cole v. Cassid}-, 138 Mass. 437 ; and the view taken that a false statenieiit Hubbard t>. Weare, 79 la. 678; Chatham made carelessly and A\ithout reasonable Furnace Co. v. Moffatt, 147 Mass. 403. grounds for belief in its truth did not, if 304 THE LAW OF PERSONS. Care must be taken in applying these rules not to confound an expression of opinion with a statement of facts, (a) There is a vast difference between words expressing the strongest confidence that a specified enterprise will be successful, and an assertion that profits in a commercial sense had actually been made. It should also be considered whether a person is likely through inexperience to be misled by the prospectus.^ Where the language of the prospectus has a plain and clear meaning, it must be con- strued by the judge, and not by the jury.^ (3) The rights of third persons against the corporation for the misconduct of its trustees or directors. — The party injured may, in certain cases, look to the corporation instead of the dii-ectors. As they may be agents for the company, their acts of a wrongful or injurious nature may bind the corporation, on accepted rules of the law of agency.^ If the corporation had profited by the fraudulent acts of the directors, this participation in the results of the wrong might amount to a confirmation of their acts, (h) In the case now in hand of fraudulent prospectuses, the injured party, instead of proceeding against the directors, may prefer to rescind the contract. This is an accepted remedy by one who has been fraudulently induced to subscribe to original shares. The action would be brought against the company instead of the directors, (c) The contract to purchase in such a case is void- 1 Bellairs v. Tucker, L. R. 13 Q. B. D. 3 Barwick v. English Joint-Stock Bank, 562, 577, and cases on the last-named page. L. R. 2 Exch. 259, is a leading case, and 2 Moore u. The Explosives Co., 56 L. J. frequently cited in later cases. See (Q. B. ) 235. opinion of Willes, J. believed in good faith to be true, amount believing them to be so, or unless the im- to fraud, tliough it might be evidence of it. pression was intentionally conveyed by the This decision is followed in Glasierv. Rolls, person making the re})resentation that L. R. 42 Ch. D. 436, and Angus v. Clifford he had actual knowledge of their truth, [1891], 2 Ch. 449, and seems to have led though conscious he had none. See also to the passage of the statute known as the Robertson v. Parks, 76 Md. 118. Directors' Liability Act, 1890 (53 & 54 Vict. {a) Robertson v. Parks, supra. c. 64), establishing the liability of direc- (b) See Bosley v. National Machine tors and promoters for untrue statements Co., 123 N. Y. 550. made in prospectuses, etc., unless such (c) Bosley v. National Machine Co., statements, not purporting to be made on svpra ; Vail v. Reynolds, 118 N. Y. 297 ; the authority of an expert or of a public Scott v. Snyder Dynamite Projectile official document or statement, are made Company, Limited, 67 L. T. N. s.. 104 ; under the belief that they are true, for Karbcrg's Case [1892], 3 Ch. D. 1. It has which belief there must have been reason- been held that several subscribers, induced able grounds. The doctrine maintained by the same fraudulent representations, in Derry v. Peek is criticised by Sir Fred- have such a common interest that they erick Pollock in 5 Law Quarterly Peview, may join in an action as co-complainants p. 410 (Oct. 1889). Cf. Wakeman v. to set aside their subscriptions. Bosher Dalley, 51 N. Y. 27, where it is said that v. R. & H. Land Co., 89 Va. 455. Cook an action of deceit cannot be maintained on Stock and Stockholders and Corpora- unless the representations were known to tion Law, § 156. be false, or unless there were reasons for CORPORATIONS. 395 able, and not void.^ The injured party should, within a reason- able time, strive to ascertain the facts, and after ascertaining them, proceed without delay .^ In the English cases there is a feature of great importance, not usually found here, and which makes the decisions to some extent inapplicable. This is the principle of unlimited liability/ on the part of the shareliolders of many corporations for the debts of the company. The legal effect of this rule is, that a share- holder is deemed to be a partner with the other shareholders. Accordingly, he cannot sue the company for damages for fraud, that remedy not being available as between partners.^ This point received thorough consideration in the great case of the failure of the City of Glasgow Bank in 1878. In American law, the shareholder, in general, is not liable beyond the capital con- tributed by him, though he may be in special cases. Where he is not so liable, he may, for the purposes of an action against the company, be regarded as a stranger. Under the English theory, " such an action (deceit) is 7'eally not against the corporation as an aggregate body, but is against all the members but one," viz., the plaintiff, to throw upon them the plaintiff's share of the cor- porate liabilities.* One defrauded in subscription to stock by the company is accordingly restricted to an action to rescind the sub- scription. This proceeds upon the ground that the fraud so vitiated the contract that the subscriber is entitled to claim, if he will, that there was no subscription. But the right to rescind may be lost if the rights of innocent third parties have intervened.^ The defrauded subscriber may thus be bereft of all remedy. In some of the States, if a bank become insolvent, the share- holder may not only lose his share, but be liable in addition to an amount equal to the share. This rule is applied to national banks. The same question might apparently then arise as was presented in Houldsworth v. City of Glasgow Bank ; that is, whether one who had been induced by fraud to subscribe would have an action against the company, or whether he could resist, by means of rescission, his contribution to the fund to pay credi- tors. There is no reason to doubt that while the corporation is carrying on business (" a going concern ") and apparently solvent, the shareholder may sell his share and so escape further liability.^ 1 Oakes v. Turquand, L. R. 2 H. L. * Per Lord Selrorne, in Houldsworth Cas. 325. V. City of Glasgow Bank, supra, p. 329. 2 Wilkinson's Case, L. R. 2 Ch. App. & Tennent v. City of Glasgow Bank, 536. L. R. 4 Api). Cas. 615. 3 Houldsworth v. City of Glasgow ^ Tennent v. City of Glasgow Bank, Bank, L. R. 5 App. Cas. 317. supra, p. 622. 396 THE LAW OF PERSONS. (4) Remedies whieh the corporation may have against its directors for their negligent or toilful misconduct. — The corpo- ration, having been made liable by the fraud and other acts of misconduct of the directors, may have a remedy against them. The stockholders of a corporation may, at least in some cases, ratify the act of a director though guilty of a breach of duty, and such a director may vote a ratification in his character of stock- holder, even though he owns a majority of the shares, and thus confirm his own voidable act as director, where he does not act oppressively, and the charter permits him to acquire the stock. ^ A director is not a trustee, in the technical sense of that word, unless he has the title to property. He is as between himself and the company an agent or servant.'^ He is in a fiduciary position, however, and cannot profit at the expense of the corporation.^ The wrongful act of one director, committed by him without the knowledge or consent of his associates, is not to be imputed to them, but is personal.^ If a director be excluded from acting as such by his associates, he is entitled to an injunction.^ The court, having jurisdiction over the acts of trustees and directors, considered as a matter of fiduciary obligation is the Court of Chancery.^ In New York the whole subject is reduced to statutory form. The court may compel the directors to account for their official conduct, and to pay over to the corporation itself or to its credi- tors, as the circumstances of the case may require, any property which they have wrongfully applied to their own use, or have wasted in any manner. At the same time, the director may be suspended from office for abuse of trust, or he may be removed. The court may direct the proper board to supply the vacancy, or if there be no such body in existence, direct the removal to be reported to the governor, who may, with the consent of the Senate, fill the vacancy.^ The court also has a statutory power to set aside unlawful transfers of the corporate property, except as against purchasers in good faith, as well as to restrain such 1 Northwest Transportation Co. v. ^ McKay's Case, L. R. 2 Ch. D. 1 ; Beatty, L. E. 12 App. Cas. 589. The Pearson's Case, 5 Id. 336. court said: "Great confusion would be * Cargill v. Bower, 47 L. J. (Ch. D.) introduced into the affairs of joint-stock 649 ; Land Credit Co. of Ireland v. Lord companies if the circumstances of share- Fermoy, L. R. 5 Ch. App. 763. holders voting in that character at general 5 Pulbrook v. Kichraond Con. alining meetings were to be examined, and their Co., L. R. 9 Ch. D. 610. votes pi-actically nullified if they also ^ Needham i'. Rivers Pro. & Jlan. Co., stood in some fiduciary relation to the L. R. 1 Ch. D. 253. company." p. 600. '' Code of Civ. Pro., § 1781. 2 Per James, L. J., in Smith v. Andei'- son, L. R. 15 Ch. D. 247. CORPOKATIONS. 897 as are apprehended. An action for the last-named pui-poses may be brought not only by the attorney-general, but as well by a creditor or some officer of the corporation.^ (a) A joint-stock company, wiiose directors are appointed for a definite period, has no inherent po^ver to remove them before the expiration of that period.^ There are other restrictions upon directors. An important one is, that they shall not pay dividends upon the stock of the com- pany except from profits. All who participate in such an act are made liable to the corporation or its creditors for the amount imlawfully diverted in this manner. Independent of statute, and on general principles of law, it is contrary to the duty of directors to pay dividends out of capital. Such an act is ultra vires, as it diminishes the funds on which creditors have a right to rely.^ The courts hold a very strict hand over directors in thus making them jointly and severally liable for the amounts paid.'* (J)) In some of these cases, stress was laid on the fact that in the constituting instruments, division of profits only was allowed. But there is a broader view. Persons intrusted with capital with a view of using it to make profit, violate their trust when they return the capital to shareholders in the guise of profits, and 1 Code of Civ. Pro., §§ 1781-1782. These rules are subject to some exceptions in the case of religious or charitable corpo- rations, § 1804. 2 Imperial Hyd. Hot. Co. v. Hanipson, L. R. '23 Ch. D. 1. 3 ]\Iacdougall v. Jersey Imp. Hotel Co., 2 Hem. & M. 528. * In re Oxford Ben. Building Society, (a) Under these sections the attorney- general may bring suit, without a relator, and whenever in his opinion the public interest demands it, to remove trustees from office, and to compel them to account for property transferred in violation of their duty. People v. Ballard, 134 N. Y. 269. (b) It is a general rule that stock- holders cannot in the first instance sue the directors for a past or threatened breach of duty to the corporation. The corporation is the proper party plaintiff, for in contemplation of law it alone re- ceives the injury. In case the corpora- tion has been dissolved, or is being wound up, the receiver or official liquidator should sue. L. R. 35 Ch. D. 502 ; Leeds Estate, &c. Co. V. Shepherd, L. R. 36 Ch. D. 787 ; Salisbury v. Metropolitan R'way Co., 22 L. T. N. s. 839 ; Ranee's Case, L. R. 6 Cli. A]ip. 104 ; riitcroft's Case, L. R. 21 Ch. D. 519 ; Evans v. Coventry, 8 De G. M. & G. 835 ; In re Nat. Funds Ass. Co., L. R. 10 Ch. D. 118. If, however, a proper demand that suit be brought has been made by the stock- holder, and refused by the governing body of the corporation, or if it is apparent that such a demand would be useless, owing to the relation of the guilty officers to those in control, the stockholder may then bring suit in his own behalf and that of all other stockholders similarly situated. Greaves V. Gouge, 69 N. Y. 154; Brinckerhoff i-. Bostwick, 88 N. Y. 52 ; City of Chicago V. Cameron, 120 111. 447 ; Nathan v. Tompkins, 82 Ala. 437 ; Davis v. Gem- mell, 70 Md. 3.^6 ; Eschweiler v. Stowdl, 78 Wis. 316 ; Pomeroy Eq. Jur. §§ 1091, et seq. 398 THE LAW OF PERSONS. thus subvert the purposes of the trust. Such an act manifestly requires the assent of the shareliolders. It is not necessary that the directors should intend to commit a fraud. It is enough that they intend to do an act which is in its nature substantially a fraud.^ Moreover, creditors who have naturally looked to the capital as a source from which their claims should be paid, have a right to insist that it should not be dissipated by a direct act of abdication of the trust on which the capital is held, (a) Section YI. Dissolution. — A corporation, like a natural per- son, may cease to exist. Its existence may be terminated by the death of its members without filling vacancies. It may also be dissolved by act of the legislature, or by a surrender of corporate rights, or by judicial decree. These various modes will now be considered separately. I. £1/ death or removal of all its 7nembers. — This is a disso- lution because the corporation has ceased to have the power of holding corporate meetings for the purpose of filling vacancies and so continuing its existence.^ A new charter may, however, be granted, which will operate as a revival of the former corpora- tion, so that the new corporation will become the owner of all the former franchises and property.^ A similar effect, suspending the existence of the corporation, might be produced if so many of the members should die or be removed from office that there would not be a sufficient number to hold a legal meeting. This obstacle could be removed by an act of the legislature authorizing a lesser number to form a quorum and fill the vacancies. II. Bi/ act of the legislature. — This mode of dissolution has a wide scope in England, as an act of Parliament is said to be boundless in its operations, although in general it would be deemed unjust and impolitic there to dissolve a corporation without good reason. In the United States a constitutional question is in- volved, owing to the provision in the United States Constitution that no State shall pass any law impairing the obligation of contracts.* In applying this rule to cases as they arise, a distinction must be taken between a public or municipal and a private corporation. A municipal corporation is in its essence a mere instrument of local government. Its charter may accordingly be altered at the 1 Ranee's Case, opinions of James and 2 pp^ ^ Moms, 3 East, 213. Mellish, L.JJ.,L.R. 6 Ch.App. 113-124. 3 Mayor, &c. of Colchester v. Brooke, Also Remarks of the Master of the Rolls, in 7 Q. B. 339. L.R. 10 Ch. D. 118, 128 ; approved in 35 * Art. I., § 10, cl. 1. Id. 502, 512. (a) See post, pp.405, 411, 412. CORPORATIONS. 399 pleasure of the supreme authority in the State, though it mig-ht be that its property should continue to be appropriated to public uses. The case is very different with private corporations. The acts of incorporation and acceptance constitute a contract between the State and the corporators. This cannot be destroyed nor altered by the legislature, unless there be a special power to that effect reserved by the State, — a case to be hereafter considered. It is not material that no money is paid by the corporators for the charter, nor that the trustees receive no pecuniary benefits. It is enough that the persons whom the trustees represent may derive a benefit from it. These principles are fully set forth in the celebrated " Dart- mouth College Case." i The college had been chartered by the King of England during the colonial period. It was placed by him under the control of a board of trustees having self-perpetu- ating power. After the Revolution, the State of Xew Hampshire attempted to subvert the old organization by a statute whicli the college did not accept. This act was declared by the court to be unconstitutional and void. This decision met with much oppo- sition, it being maintained by some of the State tribunals that an act of incorporation ought to be deemed a law^ and so in its nature repealable, rather than a contract and for that reason irrepealable. The answer to this view made by Mr. Mason in his argument for the college seems very strong. If this be a laiv, where is the necessity or propriety of acceptance of it by the corporators ? Must a law, after it is duly enacted, be accepted or assented to by an individual in order to make it binding on him ?2 After the decision of the Dartmouth College Case a practice grew up to the following effect : Either to insert in the charter of incorporation a clause giving the legislature full power of amendment or repeal, or to enact a general law of the State applicable to all future incorporations, or, for still greater cau- tion, to insert a similar clause in the State constitution.^ Such a clause forms a part of the contract between the legislature and the corporation, and subjects the charter to amendment or repeal at the will of the legislature.* Even with this reservation of such power, an arbitrary repeal of a charter, interfering zvith 1 Dartmouth College v. Woodward, 4 * Peik v. Chicago & N. W. R. R. Co., Wheat. 518. 94 U. S, 164 ; C. B. & Q. R. R. Co. v. 2 Dartmouth College Case, as separately Iowa, Id. 155 ; Schenectady, &c. Plank printed, p. 68. Road Co. v. Thatcher, 11 N. Y. 102, 108, * See, for an illustration, Constitution 109. of N. Y.. Art. VIII., sect. 1 (last clause). 400 THE LAW OF PERSONS. rights of property^ would be unreasonable and unjust and contrary to the constitutional safeguards for the protection of such rights. III. Surrender of corporate rights. — A corporation may be dissolved by surrender, assuming that the surrender is accepted ly the State. If a charter is to be treated as a contract, the cor- poration has duties as well as rights. It cannot by its own fiat dissolve the contract. So a corporation may surrender its charter by implication, as, for example, where a new charter is accepted inconsistent with its then existing incorporation.^ IV. By adverse judicial decree. — (1) Under the common laiv. The proceeding for this purpose is a writ of scire facias or an information in the nature of a quo ivarranto, already explained. Sufficient cause for the proceeding is either the usurpation of a right or power, — e. g-, when a literary college at Geneva, N. Y., assumed, without legal ground, to establish a medical college in the city of New York ; ^ suffering an act to be done which defeats the end for which the corporation was instituted ; ^ acts of neglect causing injury, such as that of a turnpike company permitting its road to fall into such a state of decay as to be dangerous or inconvenient to travellers ; ^ non-compliance with the requirements of the charter by neglect or design, even though there be no bad or corrupt motives.^ In these cases, it will be no answer to the proceeding that any person injured will have a remedy by action. It is important to remark that a violation of corporate duty or a breach of the charter does not of itself dissolve the corporation. There must be a judicial proceeding. None but the " people," through their proper ofiQcer, can claim that the charter is for- feited. An individual cannot set up the forfeiture as a defence to an action brought against him by the corporation to enforce a legal liability. This rule applies even though the charter provide that on the performance or non-performance of an act the cor- poration shall be ipso facto dissolved. These words are construed to mean dissolution at the election of the State through a judicial proceeding, (a) 1 This mode of dissolution is called in ^ The People v. The Trustees of Geneva the statute-book in New York "voluntary College, 5 Wend. 211 ; and see People v. dissolution," meaning that it is at the will Utica Ins. Co., 15 Jolins. 358, 383. of the corporation, but still under the ^ People t'. Bank of Hudson, 6 Cow. 217. sanction of the State ; Code of Civ. Pro. * People v. Bristol, &c. Turnpike Co., §§ 2419-2431. Certain corporations are 23 Wend. 222. excepted. See §§ 2420, 2431. See also & People v. Kingston & M. Turnpike 2 R. S. 467, §§ 66-89. Road Co., 23 Wend. 193. («) See Application of Brooklyn El. Brooklyn, 78 N.Y. 524 ; Matter of Brook- Py. Co., 125 N. Y. 434, and compare lyn, Winfield, & Newtown Ry. Co., 72 Brooklyn Steam Transit Co. v. City of N. Y. 245. CORPORATIONS. 401 Courts of equity may in their administration of the law of trusts appropriate the property of insolvent corporations to the payment of their debts. This is readily done through the medium of a receiver, who under the direction of the court will bring actions or submit to be sued, collect tlie assets, and devote them to the use of the creditor. This may result practically in the dissolution of the corporation. (2) Dissolution as a statutory remedy. In the great mul- tiplication of corporations in modern times, and the ease with which they are formed under general laws, it will readily happen that many will turn out to be formed for impracticable and visionary purposes, or, after having had a temporary business success, will fail, and become insolvent. The attention of legis- latures is naturally turned to methods whereby they can be summarily dissolved or "wound up," and their affairs finally settled. A marked instance of this mode of proceeding is " The Com- panies Winding up Acts " of the English Parliament.^ 1 25 & 26 Vict, c. 89, called "The Companies Act of 1862," with auiendatory acts. The powers and liabilities of com- panies under this act depend both upon the articles of association among the mem- bers and the provisions of the Act of Parliament incorporating them. Re Cam- brian Peat, Fuel, & Charcoal Company, Limited, 31 L. T. 773. The company is required to be registered under a name iu a prescribed way, whereupon it obtains a certificate from the registrar, which is conclusive, so that its incorporation can- not be successfully impugned. Oakes v. Turquand, L. R. 2 H. L. Cas. 325 ; Peel's Case, L. R. 2 Ch. App. 674. Companies under this act may be in- corporated for any lawful purpose. § 6. Tlie liability of members may be limited at the pleasure of the members, so that there shall be no liability beyond the shares subscribed. This is called a com- pany with liability ' ' limited by shares. " It must be publicly registered in a pre- scribed registration office wath the word "limited " as the last word in its name. The liability of members may be " lim- ited " in another way, which is to fix in the articles of association an amount in addition to their shares for which they un- dertake to be liable. This is called a company "limited by guarantee." § 9. The word "limited" in this case must also be the last word in the company's name, and there must be a registration as prescribed by law. Finally, the members may, if they will, be organized on the prin- ciple of unlimited personal liability. § 10. It is plain that, under these provisions, "the winding up" of the various cor- porations in case of dissolution will have quite a different meaning. In the strictly limited corporations, the shareholders will only contribute in case they have not paid up their original subscriptions, and then only to the extent of sums not yet paid. In the other cases, the shareholders will be required to contribute in addition whatever their articles of association may provide for. Accordingly, those are "con- tributories " to the payment of the debts of the company who have in some way bound themselves by contract either di- rectly to the creditor or with the corpora- tion that has contracted with the creditor. Bright V. Hutton, 3 H. L. Cas. 341. The list of contributories includes all wlio have agreed to become members, and not entitled to rescind the contract on the ground of fraud. In re Scottish Petro- leum Co., L. R. 23 Ch. D. 413. The sub- scriber is bound to take the shares he subscribed for and to pay money or money's worth. Forbes & Judd's Case, L. R. 5 Ch. App. 270. Persons holding shares as trustees mav be liable, although 26 402 THE LAW OF PERSONS. There is also important legislation on the same general subject in the State of New York, resembling in some of its methods the English Winding up Act of 1862, and amendatory statutes. There are three principal cases under the New York statutes: — 1. A majority of the directors may petition for a dissolution of the corporation on the ground that its property is not sufficient to pay the just demands against it, or for other reasons beneficial to the stockholders. 1 In certain specified cases there may be a petition by those in favor of dissolution, though the directors are equally divided in opinion.^ The contents of the petition and the mode of proceeding under it are specifically marked out. The question is heard before the court or a referee. If the facts war- rant it, an order is entered dissolving the corporation. The assets are administered by a receiver. All sales or transfers after the filing of the petition, or judgments confessed, whether to pay or secure debts, or for other considerations, are void as against the receiver or creditors.^ their names are entered on the share register as trustees. Bell's Case, L, K. 4 App. Gas. 547 ; also other City of Glasgow Bank Cases. Past shareholders are also liable under specified circumstances. Hel- bert V. Banner, L. R. 5 H. L. Cas. 28. The corporation having been "wound up," the court may sanction a scheme for reconstruction and the transfer of remain- ing assets to a newly-formed company. In re Imperial Mercantile Association, L. R. 12 Eq. 504. Other companies besides those formed under the act itself, such as one incor- porated by special Act of Parliament, may be "wound up" under this statute, but not a company wholly unincorporated. Jn re Bradford Nav. Co., L. R. 10 Eq. 331 ; Ee Imperial Anglo-German B'k, 26 L. T, 229. "Never having come into existence, it cannot be wound up." The general grounds for " winding up " are that the business was not commenced promptly or that the object of the organ- ization is impracticable or impossible, or that it is insolvent. There may also be a voluntary application by shareholders. A creditor who cannot get his claim paid is in general entitled to a winding up or- der, though in special cases, where this proceeding would not on the whole be beneficial, or for other reasons, the order may be refused. In re Heme Bay Water- works Co., L. R. 10 Gh. Div. 42. Public interests may also intervene to prevent it. If the order is granted, " liquidators " are appointed to take possession of the assets, and protect them. The liquidator is in substance a statutory receiver, who brings actions, carries on the business, sells prop- erty ; and the order maj' be so drawn that he will not be required to apply to the court for directions. The details of the law are very nume- rous, and the decisions extensive. The whole scheme appears to be in the nature of a special act of bankruptcy embracing corporations and appropriating their as- sets of every sort to the payment of their debts, with the additional remedy of call- ing on the shareholders in certain cases for contribution to pay the company's debts. («) 1 Code of Civ. Pro., § 2419. 2 Id. § 2420. 3 Id. § 2421-2431, both inclusive. As to the receiver, see § 1810. See also 2 R. S. 467, §§ 66-89, which are still probably applicable to a receiver in case of volun- tary dissolution. («) The Companies Act, 1862, was panics Acts, 1862 to 1886, are cited to- amended and supplemented by the "Com- gether as the "Companies Acts, 1862 to panies (Winding up) Act, 1890," 53 & 1890." 54 Vict. c. 63. This act and the Com- CORPORATIONS. 403 2. There are several cases in which a dissohition may be had by creditors seeking to enforce corporate obligations, as where the corporation has remained insolvent for one year, or neglected or refused for a year to pay its notes or otlier evidences of debt, or sus- pended its ordinary and lawful business for one year. In case the corporation has banking powers or power to make loans on pledges or deposits, or to make insurances, there may be an application of this kind, not only when it becomes insolvent, but when it has violated any provision of law binding upon it. In this class of cases the attorney-general proceeds, in the first instance, though if he omit to do so a creditor or stockholder may take proceed- ings which will enable him, with the leave of the court, to proceed for a dissolution. Stockholders and directors, so far as they may be made personally liable, may thereupon be joined by the plain- tiff in the same action, or may be proceeded against separately. The dissolution is brought about substantially in the same way as in the case of voluntary dissolution.^ 3. Special provisions applicable to the dissolution of particular kinds of corporations, so far as they may exist, are not inter- fered with by the general methods already described. The details must be sought in the respective statutes. The word amahjamation has been sometimes used in con- nection with the dissolution of corporations, and should be ex- plained. " Amalgamation " is not a legal word. In a recent case the court said : " It is difficult to say what the word ' amalgamate ' means. I confess at this moment I have not the least conception of what the full legal effect of the word is. We do not find it in any law dictionary, or expounded by any competent authority." ^ It may, however, be assumed to mean the dissolution of one or more corporations, and the transfer of property and franchises to another. The term appears to have grown up from a practice prevailing in unincorporated joint-stock companies created by deed executed by the members, whereby one company would coalesce with the other. It is established law, that unless the deed pro- vides for amalgamation it cannot take place without the consent of all the members.^ The language of the deed must be clear. Even the word " amalgamate " will not be sufficient to impose upon a subscriber to the original company the duty to take stock in the new organization.'* If amalgamation take i)lace without 1 Code of Civ. Pro., 1785-1796. ^ /„ re Era Assurance Society, 30 L. J. 2 Per Wood, V. C, in In re Empire Cli. 137. Assurance Corp., L. K. 4 Eq. 341, at p. * In re Empire Assurance Corporation, 347. L. R. 4 Eq. 341 ; Dougau's Case, L. R. 8 Ch. App. 540. 404 THE LAW OF PERSONS. authorizing words, it will be ultra vires, and a dissenting share- holder will not be bound, though the others assent.^ Leaving out of view now mere societies, it ^vould seem that corporations could not amalgamate without legislative power. If legislative authority existed when the corporations were chartered, a subse- quent amalgamation would bind dissentient shareholders, as they might be assumed to have assented to it when they made their subscriptions.^ (a) Y. Effect of dissolution. — This must be regarded in two aspects: (1) In a court of common law. (2) In a court of equity as aided by statutes. (1) In a court of common law. In the early common law, a corporation was regarded from the point of view that its rights and liabilities depended upon the continuance of its technical existence as an artificial person. If a natural person died, his existence was, to a certain extent, prolonged by the presence of heirs or executors or administrators to represent in court his various rights and liabilities. Should he die without heirs, his lands escheated to the State as " ultimate heir" (idtimus ]ia:res). On the other hand, in the case of a corporation, the fee simple was supposed to vest in the corporators in their politic or cor- porate capacity created by the " policy of man," and to such vesting the law annexed an implied condition that if the body politic were dissolved, the grantor might re-enter upon the land and repossess himself of his former estate.^ The personal prop- erty belonged to the king, as succeeding to all goods without an owner. So on technical grounds, no action could be brought by a creditor to recover a debt, as there was no " person " that he could sue, and for a like reason debts due to the corporation were extinguished. Strictly speaking, if an action were pending when a corporation was dissolved, it would instantly terminate. Rules such as these are to the last degree technical and subversive of substantial justice. (2) In courts of equity and hy statute. — The old common law doctrine is practically obsolete. In most cases, the corporation would be regarded as holding its property in trust for those ^ Clinch V. Financial Corp., L. R. 4 sembling amalgamation are granted under Ch. App. 117. certain circumstances to an official liqui- 2 Earl of Lindsey v. Great Northern dator or receiver. R'way Co., 10 Hare, 664. See also 25 ^ \ Co. Litt. 13 b. & 26 Vict. c. 89, § 161, where powers re- fa) The term " consolidation " is employed in the United States in much the same sense as amalgamation is in England. CORPORATIONS. 405 whom it represented. In tne case of a commercial corporation, it would be a trustee for shareliolders and creditors. («) In the case of a charitable corporation, it would be a trustee for those whom the founders had designated. It is a settled rule in equity that no trust shall fail for want of a trustee. Accordingly, on the dissolution of a corporation, the court, if the trust be a permanent one, may designate a new trustee, or if that be the better course, may close up the affairs and distribute the property among the proper beneficiaries. Statutes are enacted in the various States in aid of this theory, and facilitating the exercise of this jurisdiction.^ An analogous inquiry has been raised, when land is acquired by a corporation in full ownership, by eminent domain for a par- ticular purpose, and that purpose is no longer practicable, whether it can be devoted to some other purpose. It is decided that in such a case there is no reversionary interest in the grantor.^ Notwithstanding dissolution, the legislature may revive or reno- vate the corporation, or may substitute a new one in its place. There is a distinction between the two cases. The revival restores the corporation with its former rights and duties. A strictly new corporation would not represent the old one. When a contro- versy arises as to which result has taken place, it must be decided as a matter of interpretation, regard being had to the intent of the legislature as well as of the corporators.^ DIVISION II. — Special Rules applicable to Stock Corporations. The phrase " stock corporations " is here used to embrace all corporations having a capital consisting of shares susceptible of separate ownership. These have largely taken the place of part- nerships in business transactions, as the capital of small owners may thus be readily aggregated, and at the same time, in case of disaster, they will be able to escape unlimited personal liability. 1 Angell & Ames on Corporations (11th 3 Bellows v. Hallowell & Augusta Bank, ed.), §§ 779 and 779 a. 2 Mason, 31, 43, 44. 2 Heyward v. Mayor of New York, 7 N. Y, 314. (a) Cole V. Millerton Iron Co., 133 N. trol and dispose of as a natural person Y. 164. While admitting that corporate may, if done in good faith. Hospes v. assets should be devoted to the payment of Northwestern Car MTg Co., 48 Minn. 174; corporate debts to the exclusion of the Wabash, etc. Ry. Co. v. Ham, 114 U. S. claims of stockholders, some authorities 587; Fogg v. Blair, 133 Id. 534; Clark v. refuse to place the principle upon the Bever, 139 Id. 96 ; Gould v. Little Rock theory of a trust, contending that corporate M. R. & T. Ry. Co., 52 Fed. R. 680. capital belongs to the corporation to cou- 406 THE LAW OF PEESONS. The shares also have this advantage, that an assignment of them has no effect ui)()n the continuance of the organization, while in an ordinary partnership, an assignment would work its dissolution. Section I. Suhscrlptions for Stock and Assessments. — There are two instances under this head, — one, where the company is already organized, and the other, where it is projected. In the first instance, if a subscriber on the one hand agrees to take and pay for stock, and the company to supply it, the transac- tion has all the usual elements of a contract.^ The second instance presents greater difficulties. The cor- poration not yet being formed, there is no true contract when the subscription is made. It must be regarded as an offer to contract, which is accepted by the corporation on its organization. Still, it is the prevailing view that even while the transaction is imperfect or inchoate, it cannot be withdrawn.^ (a) The advantage to be derived from membership in the company is a sufficient considera- tion for the subscription. A promise to " take " a specified number of shares will be sufficient, as there is implied in the use of the word " take " a promise to pay for them.^ The subscription paper may refer to the charter, in which case it would in contemplation of law become incorporated into it. When the corporation is organized, an action will lie on the subscription.* It is not material that no cash payment was made when the subscription was re- ceived, unless that was made necessary to its validity by statute, nor is it necessary to give any notice that an action will be brought.^ In fact, the ordinary rules of the law of contract prevail. The subscriber becomes a stockholder when the shares are apportioned to him, though no certificate of stock has been issued to him. The certificate is only evidence of title.^ It is frequently the case that the corporation has by law the 1 Angel] & Ames on Corporations ( 11th ^ Buffalo & N. Y. City R. R. Co. v. ed.) § 517. Dudley, 14 N. Y. 336. 2 Lake Ontario & C. R. R. Co. v. ^ Lake Ontario, &c. R. R. Co. v. Mason, Mason, 16 N. Y. 451 ; Schenectady, &c. 16 N. Y. 451. Plank Road Co. v. Thatcher, 11 Id. 102. e Burr v. Wilcox, 22 N. Y. 551 ; Buf- 3 Spear v. Crawford, 14 Wend. 20. falo & N. Y. City R. R. Co. v. Dudley, 14 N. Y. 336, 347. {a) See Minneapolis Threshing Machine the inchoate contract, even though there is Co. V. Davis, 40 Minn. 110. The contrary no want of consideration. If the agree- is maintained by several authorities. See ment is a mere promise to subscribe, and Athol Music Hall Co. v. Carey, 116 Mass. not an actual subscription, it is not an offer 471 ; Hudson Real Estate Co. v. Tower, which the corporation when formed can 156 Mass. 82; Auburn Bolt Works v. accept. Lake Ontario Shore Ry. Co. v. Shultz, 143 Pa. St. 256. The theory on Curtiss, 80 N. Y. 219 ; Morawetz on Cor- which these decisions are based is that porations, § 49. there is no promisee capable of enforcing COKPORATIOXS. 407 right to forfeit the stock in case the subscription money is not paid. This is but a cumulative remedy, the corporation not being bound to resort to it. It cannot, however, bring an action to recover the subscription after having forfeited tiie stock, since there would be an inconsistency between the two remedies. This rule will prevail, although the forfeiture was but for the non- payment of a fractional part of the subscription. Xo action will lie for the residue.^ A forfeiture once made is absolute and com- plete ; and the subscriber has no equitable claim upon the companv for any assumed excess of value of the stock above the amount due the company.^ A subscriber cannot escape liability on his subscrijition by a colorable transfer of his shares. While he may transfer his rijhts, he cannot by any such course divest himself of his liabilities. It was said in one case where the sale occurred after calls were made, but before they were payable, that the transferor ought still to be held liable, though the transaction was in good faith and the transferee a person pecuniarily responsible.^ Much more would this be true were he without means, for a contrary doctrine might result in the impairment of the corporate capital.* (a) It may happen in the case of a corporation organized under a general law that all the stock contemplated by the articles of association is not subscribed for. This is not material if there be sufficient subscriptions to organize the corporation.^ It may be urged as a defence to an action on the subscription that the company has without the subscriber's consent materially changed the articles of the association since the subscription was made. One party to a contract cannot modify it without the other's consent.^ If, on the other hand, the legislature alter the consti- tuting act under a reserved power to do so, the reservation is deemed to enter into the original act and to become a part of it, so that the subscriber is still liable.'^ When new stock is issued, 1 Small V. Herkimer Mfg. &c. Co., 2 ^ Schenectad}', &c. Plank Road Co. v. N. Y. 330, 339 ; see ante, p. 365. ; Thatcher, 11 N. Y. 102, 107. 2 Id. and Story on Equity (13th ed.) 6 B. C. & N. Y. R. R. Co. v. Pottle, 23 § 1325, and cases cited. Barb. 21. 8 See remarks of Johnson, J. in Sche- "^ Schenectady, &c. Plank Road Co. v. nectady Plank Road Co. v. Thatcher, 11 Thatcher, 11 N. Y. 102 ; Buffalo & N. Y. N. Y. 102. City R. R. Co. v. Dudley, 14 Id. 336, 354, * Nathan v. Whitlock, 9 Paige, 152 ; 355. Affg. 3 Edw. Ch. 215. (a) If the sale be made in good faith to Cromwell, 25 Barb. 413 ; Cole v. Ryan, a solvent purchaser, many authorities ex- 52 Barb. 168 ; Isham v. Buckingham, 49 onerate the transferor from liability for N. Y. 216 ; Morawetz on Private Corpora- calls made subsequent to the transfer. Bil- tions, § 159. In several States there are lings V. Robinson, 94 N. Y. 415 ; Tucker statutes upon the subject. V. Gilman, 121 N. Y. 189; Cowles v. 408 THE LAW OF PERSONS. existing shareholders are entitled to subscribe for it rather than strangers.^ The rules above stated are not to be extended to assessments made upon stockholders, after the stock lias been fully paid for. The corporation has no incidental or implied power to make such an assessment and sue a subscriber upon it. There must be an agreement to pay it or a statute justifying it.^ If a remedy by forfeiture is given, no other can be resorted to, unless the stock- holder expressly agree to pay the assessment, in which case the remedy is cumulative.^ The reason is that when a statute creates a new power and gives the means of executing it, it can be executed in no other way.* Section II. The Nature of Stock. — Stock is an interest apper- taining to a shareholder in the franchises and property of the corporation.^ While the corporation owns the land and other property, the stockholder has an interest in the nature of a thing in action. It is not negotiable, like a promissory note, but simply assignable.*^ It is, however, personal property, even though the corporation own principally real estate. The leading rights which a stockholder possesses are to receive the dividends, to participate in the election of managers or directors, to hold the corporation to the performance of the trust, and on dissolution to receive a proportional share of the corporate property, which would, in that event, on final adjustment belong to the stockholders free from all trust of the corporation. The ownership of stock is commonly evidenced by a certificate. This is a statement by the corporation that the holder is entitled to a specified number of shares. It is commonly stated in the certificate that the shares are transferable to another on the return of the certificate properly indorsed. The certificate may be transferred in an informal manner by merely writing the name of the owner on the back of it and delivering it in that condition to a purchaser. Tliis confers on the latter by implication an authority to write over the indorsement a power of attorney authorizing a transfer of the stock to whomsoever he will. In that way, the old certificate being surrendered to the corporation, a new one may be taken out in the name of the trans- feree. If the corporation improperly refuse, it can be required to make tlie transfer on its books by an action in equity. If the owner of the indorsed certificate does not have the transfer made, 1 Gray v. Portland Bank, 3 Mass. 364. ^ Germain v. Lake Shore & Mich. So. 2 Angell & Ames on Corporations (llth Ry. Co., 91 N". Y. 483. ed.) § 544. 6 Mechanics' Bank v. N. Y. & N. H. 8 Id. § 548. R. R. Co., 13 K Y. 599. * Andover Turnpike Corp. v. Gould, 6 Mass. 40. 44. COEPORATIONS. 409 the former owner remains the apparent or technical owner, but would hold the stock in trust for the person beneficially entitled to it. The apparent owner alone could vote at an elec- tion for directors. The dividends would be declared in his name, though he would be required to account for them to the beneficial owner. Special rules sometimes exist as to transfer, such as that it cannot be made until all indebtedness to the corporation is paid. Such a rule may be prescribed by statute, or by an authorized by- law.i In the latter case, the purchaser of the stock must at the time of the purchase have had either actual or constructive notice of the by-la w.^ (a) Section III. The Poiver of the Corporation over its Stock. — Where the amount of stock is fixed in the charter, the corpora- tion cannot increase it. A general agent, who assumes to in- crease it, could not do so, even though he issued it to a purchaser acting in good faith.^ Certificates of this kind, having no real but yet an apparent existence, would be cancelled on proper ap- plication by a court of equity .* This remark is consistent with the proposition that the company might be liable in some other form for the act of its agent, e.g., for damages.^ Where, however, there is no restriction upon the issue of stock, the corporation may increase the number of shares. Such an act, if the capital be not increased, is, so to speak, a dilution of the property. If the capital originally consist of 10,000 shares of $100 each, representing ^1,000,000, and the corporation acquire 8500,000 more capital, an increase of 5,000 shares leaves the capital the same as before, and if understood by persons interested, harms no one. Accordingly, the company may properly, in such a case, make dividends in stock.^ So if not prohibited, a corpora- tion may buy its own stock, or receive it in payment of a debt, and hold it as being still in existence, and reissue it." Stock is sometimes of different grades, such as common stock, and preferred stock. The effect of this distinction is to cause 1 McCready v. Rumsey, 6 Dner, 574. 5 N. Y. & N. H. R. R. Co. v. Schuyler, 2 Morawetz on Private Corporations, 34 N. Y. 30. § 203. 6 Williams v. Western Union Tel. Co., 8 Mechanics' Bank v. N. Y. & N. H. 93 N. Y. 162. R. R. Co., 13 N. Y. 599. ^ City Bank of Columbus v. Bruce, 17 * N. Y. & N. H. R. R. Co. v. Schuyler, N. Y. 507 ; Taylor v. Miami Co., 6 Ohio, 17 N. Y. 592. 17G. {a) Driscoll v. West Bradley & C. M. N. W. R, (la.) 61 : Bank of Africa v. Co., 59 N. Y. 96. Also see Hammond v. Salisbury Gold Mining Co. [1892] A. C. Hastings, 134 U. S. 401; Farmers' & 281 ; Bishop r. Globe Company, 135 Mass. Traders' Bank of Bonaparte v. Haney, 54 132. 410 THE LAW OF PERSONS. dividends to be paid to the latter in preference to, or if necessary, to the exclusion of the former. A power to create preferred stock is not necessarily implied from a power to issue capital stock.^ A corj)oration may, probably, at the outset divide its stock into two classes on this basis, giving sufficient publicity to its action, so that no one may be misled.^ It is quite otherwise, when ordinary shares have been issued on the usual basis of equality among shareholders. It is then beyond the power of the corporation to establish a preferred class, except by the assent of the shareholders. This assent may be shown either by express words, or by such acts on the part of the stockholders as lead to an inference of assent, — such as unreasonable delay in objecting to the issue, where strangers have relied on the validity of the corporate acts.^ Were it not for the case cited, it might be claimed with much show of plausibility that preference shares are merely a mode of paying interest exclusively from profits, payable before dividends to regular stockholders.* There is no implied power in a corporation to reduce the capital stock. This it can only do when authorized by statute.^ Section IV. The Rights of Stockholders. — (1) To vote for directors. — This topic has already been sufficiently considered in another part of this chapter.^ (2) To receive dividends. — These are properly payable from the profits. It has already been stated that it is beyond the power of the company to reduce its capital by paying dividends from it, even though the stockholders consent. There are also statutory prohibitions to be noted. When a dividend is declared, it is deemed to be detached from the shares, and when payable it becomes a debt due from the corporation to the stockholder. They belong to those who are stockholders at the time when they are declaimed." Prior to the declaration of dividends, the profits are a part of the property of the corporation, and they cannot be considered separately from the stock. Accordingly, a sale of shares carries with it by impli- 1 Hutton V. Scarborough Hotel Co., ^ Strong u. Brooklyn Cross Town R. R. 11 Jur. N. s. 551. Co., 93 N. Y. 426. This rule would lead 2 This seems to be the effect of Har- to the conclusion that independently of rison v. Mexican Railway Co., L. R. 19 any prohibitory statute, a corporation Eq. 358. would have no power to make dividends 3 This subject is discussed with much out of capital, as that would be a reduction fulness and ability in Kent v. Quicksilver of capital. Flitcroft's Case, L. R. 21 Ch. Mining Co., 78 N. Y. 159. A number of D. 519. cases are collected and distinguished on ^ ^inte, pp. 362-364. page 181 of the report. 7 jones v. Terre Haute R. R. Co., 57 * Henry v. Great Northern Railway N. Y. 196 ; Hyatt v. Allen. 56 N. Y. Co., 27 L. J. Ch. 1. 553. \ CORPORATIONS. 411 cation dividends subsequently declared, but not those previously declared, the declaration having separated them from the general property of the company. Holders of preferred shares are entitled to Ije paid their guar- anteed dividends and all arrears, before the holders of C(nnmon or non-preferred stock are entitled to anything. There is nothinf' in law to prevent the creation by the legislature, or by the com- pany at the time of its organization, of a series of preferred stock, such as first preferred, second preferred, etc. Each of these might have dividends in their proper order, either of the same or of varying amounts, the first having always in payment a preference over the second, etc. Dividends of a prescribed amount are sometimes guaranteed by another corporation, as in the lease of a railroad, where the lessee guarantees dividends to the stock- holders of the lessor company. If the corporation, being under a duty to pay preferred dividends, divert the funds from the preferred to the common stock, interest must be paid on the arrears.^ (3) The right of a stockholder to call the directors and corjyo- ration to account for mismanagement, etc. — The stockholder is to be regarded as having an interest distinct from that of the corporation. He may, under certain circumstances, claim the interposition of the court to prevent the corporation from dealing in an unauthorized w^ay, and from diverting the capital from its appropriate uses.^ This doctrine is founded upon the notion that the corporate property is held in trust by the corporation, and thus a court of equity may control it as a trustee. It is a very common thing when a trustee will not preserve trust property, and, for example, will not bring or defend an action after rea- sonable request, for the cestui que trust to bring the action and to make the trustee defendant.^ This principle was applied in the case of Dodge v. Woolsey.^ The facts were that an illegal tax was imposed upon a bank. The corporation would not resist its collection. A suit was brought to prevent the collection of the tax against the bank itself, the directors, and the tax collector, and it was maintained.^ The directors will also be liable to a stockholder in some instances in their individual capacity, either for wasting the 1 See the case of Boardman v. L. S. & * 18 How. U. S. 331. M. S. R. R. Co., 84 N. Y. 157. ^ See also March v. Eastern R. P. Co., 2 A leading case upon this point is 40 N. H. 548 ; Pratt v. Pratt, Read, & Co., Dodge r. Woolsey, 18 How. U. S. 331. 33 Conn. 446. 3 Bate V. Graham, 11 N. Y. 237 ; Hagan v. Walker, 14 How. U. S. 29. 412 THE LAW OF PERSONS. funds or depreciating the value of the stock by improper means,'- or by a fraudulent breach of trust.2 While they are liable for losses, even though not wilful, if they occur through theii- gross neglect and inattention, they are not responsible if they have exercised ordinary care.^ Additional remedies are given by stat- ute. Thus, in New York, if dividends in a monied corporation are made from capital instead of income, the directors are per- sonally liable, (a) The fact that the stockholder received such a dividend will not bar the action, if he did not know that the diversion of capital was taking place.* (4) Bights of stockholders in case of the dissolution of the corpo- ration. — If the corporation be dissolved, the debts being first paid, the remaining assets belong to the stockholders. The directors thereupon become trustees for the management of the property with a view to its ultimate division among the stockholders.^ In making distribution, any debt due from a stockholder is treated as assets of the corporation, and deducted from his share. The object is to equalize the distributive shares of all the stockholders in the fund after payment of all debts due by them to the corporation.^' The stockholder may in such a case assign his interest, and his assignee will have the same rights against the corporation as he himself would have had, had he remained owner. This matter is usually regulated in the various States by statute, in accordance with the principles already stated. Section V. LiaUlity of the Corporation^ Stockholders^ and Directors to Creditors. — But little additional need be said as to the liability of the corporation. As has already been stated, it is liable (where the doctrine of ultra vires does not prevent) much in the same way that a natural person would be. It can be sued upon its contracts and its torts, and judgment obtained in the same general way. In addition to this, when it becomes insolvent, the remedies allowed in the law of trusts will be ap- plicable, the property being a trust fund for the payment of its debts. The principles of equity jurisprudence will be applied to the case. Statutory remedies must also be considered in the respective States. As a general rule, stockholders will not be liable to the creditors 1 Robinson v. Smith, 3 Paige, 222. ^ Angell & Ames on Corporations (11th 2 Cunningham y. Pell, 5 Id. 607. ed.) § 779a, and cases cited; Curran v. 3 Scott V. Depeyster, 1 Edw. Ch. 513; State of Arkansas, 15 How. U. S. 312. ante, p. 391. ® James v. Woodruff, 10 Paige, 541, * Gaffney v. Colvill, 6 Hill, 567. aff'd in 2 Den. 574. (a) See Stock Corporation Law, Laws of 1892, ch. 688, § 23. COEPORATIONS. 413 of the corporation from their private estate. Statutes may, how- ever, impose either a partial or unlimited personal liability. Thus the National Banking Act provides for a partial personal liability. In some instances unlimited personal liability is imposed for the payment of certain debts, as, for example, for the wages of em- ployees (a). Trustees or directors may become liable to creditors for personal wrongful acts or negligence causing injury. There is sometimes a statutory liability, as, for instance, for not filing a prescribed report. (5) (a) See Stock Corporation Law of New York, § 54. (b) The New York statute is found in the Stock Corporation Law, §§ 30 and 31. The policy of the legislation concerning the creation of corporations has been quite ditlerent in New York from that of the Eng- lish Companies Act, 1862. Ante, p. 401. By that and amendatory statutes a single scheme has been adopted in England ap- plicable to all business corporations formed for lawful purposes. In New York, on the contrary, there have been in the past many distinct methods of incorporation provided for in separate statutes, which were en- acted to meet the divei'se ends which the incorporators might have in view. Many corporations were formed under the act of 1848 and amendatory acts (ch. 40, Laws of 1848), known as the " Manufacturing Cor- poration Act." In 1875 a general scheme known as the " Business Corporation Act " (ch. 611, Laws of 1875), was enacted, but this did not repeal the law of 1848, nor the other numerous acts for the creation of stock corporations, such as the laws relat- ing to monied corporations and to railroad and other transportation companies. Besides laws for the incorporation of stock corporations, there were separate stat- utes for the creation of religious, social, charitable, and benevolent organizations, and distinct rules provided for their ad- ministration, their power to acquire land, their visitation, and dissolution. In 1890, and again in 1892, by the recommendation of the Commissioners of Statutory Ke vision, it was endeavored to simplify, and to a certain extent codify, the various general corporation acts then in force. This legislation resulted in several acts of a wide scope and application. By the Gejieral Corporation Law (ch. 563 of the Laws of 1890, as amended by ch. 687 of the Laws of 1892) all corporations are divided into four classes : ilunicipal cor- porations, stock corporations, non-stock corporations, and mixed corporations. Stock cor[iorations are in turn divided into monied, transportation, and business corporations, while non-stock corporations are divided into religious and membership corporations. Mixed corporations, which may or may not have capital .stock, are either cemetery, library, co-operative, board of trade, or agricultural and horti- cultural corporations. The General Cor- poration Law is applicable to all domestic corporations, and provides in a general way for their administration and internal government, leaving the details of organi- zation to be prescribed bj' other laws. Another act of especial importance is the Stock Corporation Law (ch. 564, of the Laws of 1890, as amended by chs. 2, 337, and 688 of the Laws of 1892). This act applies to all corporations having capi- tal stock divided into shares, except that the first article does not apply to monied corporations. Its provisions are confined for the most part to the general powers of such corporations, to subscriptions for stock, its issuance and transfer, and to the rights, duties, and liabilities of stock- holders and directors. The provisions re- lating to the organization of stock corpor- ations are found in special acts passed at the same time. These are the Banking Law, the Insurance Law, the Railroad Law, the Transportation Corporations Law, and the Business Corporations Law. The classes of coqjorations to which the first four of the above named acts apply, appear from the respective titles of these acts. The Business Corporations Law (ch. 691 of the Laws of 1892) was designed to take the place of the Manufacturing Cur- 414 THE LAW OF PERSONS. poratiou Act of 1843 and the Business Corporation Act of 1875, both of which were repealed by the amendments to the General Corporation Law in 1892. Under this comprehensive statute, all business or other industrial corporations may be organ- ized, except that no corporation can be formed under it for the purpose of carrying on any business which might be carried on by a corporation formed under any other general law of the State authorizing the formation of corporations for the purpose of carrying on such business. Notwithstanding these numerous changes, the various statutes for the organization of religious, charitable, and benevolent cor- porations, and also those for the creation of what are now known as mixed corporations, still remain as they were, except in so far as the provisions of the General Corporation Law or of the Stock Corporation Law may be applicable. It may be stated, gen- erally, that these provisions apply only when not conflicting with other corporate laws. BOOK II. THE LAW OF PERSONAL PKOPERTY. PART I. PROPERTY IN GENERAL AND THE LIMITATIONS TO ITS OWNERSHIP. CHAPTER L THE NATURE OF PROPERTY. The origin of the right of property is to some extent specu- lative, and is differently regarded by writers on jurisprudence. Some have considered it from the point of view that property originated with mere occupancy or possession by an individual man, who maintained his right by persistency of occupation, losing his entire right when his possession ceased. Others, more philosophically, have endeavored to trace the right historically, and to show as a matter of fact what were the earlier forms of ownership, seeking for them among tlie older features of Roman law, and in India and among the tribes of Germany. Research and inquiry have thus been carried to a great extent, and have led to solid and satisfactory conclusions. The right of property must be regarded as primarily founded in the family relation, and in particular in that relation in the patriarchal state. This presupposes social relations and some amount of law or public opinion to uphold its existence and to prevent its subversion. As between the members of one and the same family of whom a patriarch may be supposed to be the head, the natural respect and reverence due from the various members to such a head may have sufficed. In reference to strangers, as, for example, to other heads of like families, there must have been in the early days something resembling our modern notions of international law, whether by compact or tacit understanding, 416 THE LAW OF PERSONAL PKOPEKTY. leading to mutual respect of personal and property rights. As after a while tliese separate interests merged into a larger com- munity, ideas were expanded to meet the new circumstances, and rights of property began to assume the form which is recognized to-day. There are still in the East communities of archaic origin which continue their ancient institutions, and sliow that property was not held at first individually, but m common, and that common ownership Idy a village community is much older than individual ownership. The village community is to be regarded as a larger community, of which the patriarchal family is the unit.^ Mr. Maine finds much support for this theory in the Hindoo village community. These remarks are especially applicable to land, for movable property appears to have been at an early day the sub- ject of individual ownership, and perhaps to some extent led the way to individual ownership in land. Very close attention has of late been given to the study of the vil- lage community in Germany by writers of the school of Von Maurer. A compendium of results may be found in an essay by Morier, contained in a series entitled " Systems of Land Tenure in Various Countries," published by the Cobden Club.^ A number of asso- ciated families in Germany held land divided into three divisions termed a " mark." There were the mark of the village, the " com- mon mark," and the " arable mark," or cultivated section. The families dwelt in the village, and held the " common mark " in a species of undivided ownership, while the "arable mark" was cultivated separately by the respective families. There would thus appear to be sei^arate ownership there side by side with undivided ownership. It is difficult to say which is the earlier, undivided or separate ownership. The undivided ownership is not to be confounded with communistic ownership. This last involves ownership by the village as a corporation, so that no one individual has any separate or exclusive interest; while an undi- vided interest is capable of separation and exclusive enjoyment. The weight of evidence is strong to the effect that among the Teu- tonic races communistic ownership did not prevail, although the common mark was owned without division .^ 1 This subject is fully developed by Sir and valuable work entitled " Early History Henry Sumner Maine in his various works, of Land-Holding among the Germans," also by G. L. Von Maurer, in Germany. Boston, 1883. The theory which he sup- 2 Chap. V. (p. 279), on " The Agrarian ports is fortified by the citation of a great Legislation of Prussia during the Present mass of authorities, not merely from text- Century," by Sir Robert B. D. Morier. writers, but from original sources of in- 3 This point is clearly brought out by formation. Mr. Denman W. Ross in his very scholarly THE NATURE OF PROPERTY. 417 It seems possible to take this view: as to all that property which could only be made available by tillage, or regularly recur- ring human labor, sejmrate ownership existed from the earliest assignable period ; while from the land which was set apart as yielding spontaneous products, — such as pasture-ground or forest, — the property was held without division. This division would follow the natural law, that steady and persistent labor is not undertaken without a reasonably sure prospect of reward. Man being substantially the same being in all ages, the labor required to till arable land could only, if free, be obtained by securing to the workman the exclusive enjoyment of the products of his labor. This separate ownership did not preclude regulations of tlie mode of cultivation, tending to produce uniformity. Nor is it altogether inconsistent with a method of new assignments of land from time to time among the proprietors, which is said to have prevailed at an early date, and which could be made in such a way as to secure an equivalent for the products of past labor. The great law at all events is recognized that no crop will be planted and tilled miless at least between the time of planting and maturity separate and exclusive possession is recognized, and separate and exclu- sive enjoyment of the product of labor is secured. It is much that the progress of the Teutonic races for more than a thousand years has been away from communism, and even from undivided interests towards separate and exclusive ownerships.^ The modern inquiries upon the origin of property have this sur- passing advantage over those that formerly prevailed, in that they account both for the notion of individual property and the growth of social regulations tending to foster and protect it. As far as we can wrest from antiquity its secrets, separate ownership is at least coeval with undivided ownership. Separate ownership is from the outset also the mistress of the future, and tends to undermine and overthrow undivided ownership, and practi- cally succeeds everywhere, except in the sluggish East, where archaic systems still linger, though apparently doomed to swift decay .^ 1 The distinctions and the resemblances many. A great debt of gratitude is dne to between the Hindoo village as still snb- Jlr. Maine for bringing this class of sub- sisting, and the Teutonic village of early jects to the attention of scholars both in days, as well as that which existed in Eng- England and America, land, are fully discussed by Sir Henry ^ Village-Communities, p. 24 : " India Sumner Maine, in his work on " Village- is gradually losing everything which is Communities," Lectures 3d, 4th, and 5th. characteristic of it." The only chance of It would seem that more light might be retaining even a knowledge of Sanskrit is shed on the subject in hand from a still in the reactive inQuence of Germany and more close and minute examination of the England. early institutions of England and Ger- 27 418 THE LAW OF PERSONAL PROPEETY, The word " property " has two quite distinct meanings in law, leading to much confusion in the minds of students. In one sense, it means the subjects of ownership, — the lands and houses, or the ships and other movable articles capable of ownership. In another and more technical sense, it means ownership itself, — the interest a specified person may have in the houses and goods in question. In the one sense, it is objective and refers to out- ward and physical things ; in the other, it is abstract and has no reference to particular objects. A single instance of each mean- ing may be cited ; when a distinction is taken between real prop- erty and personal property, the subjects of ownership are referred to, that is, as to their nature, whether movable or immovable ; when on the other hand, " property " is said to be absolute or quali- fied, ownership is plainly regarded. In this book, the word " ownership " will be for the most part employed, instead of " property " when the second of the two significations is intended. CHAPTER II. THE DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY. The object of this chapter is only to point out in a general way the difference between the two kinds of property, reserving the more minute consideration of personal property to later chapters. The importance of the distinction is largely due to the fact that the two kinds of property are governed by different systems of law. Eeal property is largely developed out of the feudal system, which has no relation to personal property. The latter grew up to a considerable extent from the customs of merchants (lex merca- toria). It is largely influenced by the Roman law, and by usages not merely in England but in other parts of Europe. Much of it has been worked out by decisions of the courts within a compara- tively few years. The law of real property is in its theory anti- quated, though modified by the necessities of modern times. It is local in its nature, and must be studied, where minute knowledge is required, in rules locally prevailing in the State where the land is situated. It is accordingly a leading rule that a conveyance or will of real property, wherever made, must comply with the forms prevailing in the place where the land is situated ; while a sale of personal property is in general governed by the law of the place where the sale is made, and a will of the same kind of property by the law of the place where the testator is domiciled at the time of his death. Even the Roman law, though largely assimilating the rules governing real and personal property, distinguished for some pur- poses between movables and immovables. This is a distinction based on the inherent difference between the two kinds of things. Some branches of law are thus peculiar to immovables, such as the law of "servitudes" or rights which an owner of land or an indi- vidual may have in the immovable property of another. The general idea of real property is that it is immovable,— a portion of the earth, or something connected witli it or attached to it. Still, there are exceptional things, which in fact are movable, but for lesal reasons are deemed to be real, such as title deeds of an estate, 420 THE LAW OF PERSONAL FKOPERTY. doves in a dove-house, fish in a fish-pond, etc. Personal property on the other hand, is in general movable. There are, however, certain interests in land classed among chattels and deemed to be personal, — the principal instance being a lease for a definite number of years. The reason for this is historical and technical. Such interests originate in contract, and a contract is personal. Although a lease at present is an estate in land, yet its origin in contract is not lost sight of, and in tliis way it is for many pur- poses personal property. Reference must also be made to a rule of equity jurisprudence, that an owner may so impress his intent or purpose upon property as by a mere direction, to convert it from one species of property to the other, without any actual change of ownership. Thus a testator may by his will direct his land to be sold and converted into money. It will then for many purposes be deemed to be money at the monnent of his death. So if he directed in the same manner his money to be laid out in land, it w^ould for many purposes be regarded as land, although it remained in the form of money. This is "known as the doctrine of "equitable conversion." In some cases, a rule of law restores the property to its original character. This is termed " reconversion." The details of this subject may be found in works on equity jurisprudence. Frequently a question arises whetlier the attachment or aimexa- tion of an item of personal property to land gives it the character- istics or qualities of real property. This question properly belongs to the law of real property where it is treated under the title of "Fixtures." CHAPTER III. THINGS NOT THE SUBJECT OF PRIVATE OWNERSHIP. It is the general rule of law that things are capable of owner- ship. Such a theory is highly desirable since it tends to prevent rival and hostile claims and public disorder, as well as to promote efficiency in the production of wealth ; still, there are certain items of much intrinsic importance that are not regarded as the subject of private ownership. It is proper for tlie sake of clearness to distinguish between those things which are not usually the subject of private owner- ship, but which may become so by appropriation or occupancy, and those which cannot be acquired by a private person, at least by his own act. Of the former class are wild animals, precious stones or other articles found on the seashore, soil washed upon the shore of land already under private ownership (alluvion), and the like. The other class of things, and these are referred to in the present chapter, are the air, running water, the sea, and the seashore below a prescribed line and also property permanently devoted to public or religious uses and declared by law to be inalienable. Of these, some are incapable of appropriation from the necessity of the case or by the common consent of mankind ; others by the local law of the country where the things in ques- tion may be. This subject is a branch of the Roman law, and is treated in the Institutes of Justinian.^ As to instances of the first class, he says : "The following things are by natural law common to all, — the air, running water, the sea, and consequently the seashore, . . . all rivers and harbors are public, so that all persons have a right to fish therein. The seashore extends to the limit of the highest tide in time of storm or winter. Again, the public use of the banks of a river, as of the river itself, is part of the law of nations ; con- sequently every one is entitled to bring his vessel to the bank and fasten cables to the trees growing there and may use it as a rest- ing place for the cargo as freely as he may navigate the river itself. But the ownership of the bank is in the owner of the adjoining 1 Book II., Tit I. 422 THE LAW OF PERSONAL PEOPERTY. land, and consequently so too is the ownership of the trees which urow upon it. Again, the public use of the seashore, as of the sea itself, is part of the law of nations , consequently every one is free to build a cottage upon it for purposes of retreat as well as to dry his nets and haul them up from the sea. Bat they cannot be said to belong to any one as private property, bat rather as subject to the same law as the sea itself with the soil or sand which lies be- neath it." ^ Much of this passage is a summary of the common law, though it is not true in that system that all rivers are public, nor that a navigator upon public waters can fasten cables to trees, etc., belonging to riparian owners. While bays and harbors and the beds of navigable rivers may be public, yet the legislature frequently appropriates them to the use of private owners, as by authorizing the construction of wharves, etc., or grants, perhaps, a right to plant and cultivate oysters on the bed of navigable waters within its jurisdiction. It may also be remarked that water itself from a running stream may sometimes become the subject of private appropriation, as for example, in the form of ice cut and stored in ice-houses. Such ice has all the qualities of property. It may even be the subject of larceny .^ In the case cited, the ice was not private property while in the river from which it was taken. It was also a rule of the Roman law that property devoted to sacred or religious purposes was not the subject of individual ownership. This principle was carried very far. If property was once regularly consecrated it became inalienable, except that if movable it could be sold for the redemption of captives, the sup- port of the poor in time of famine, and the payment of church debts. Finally, land could be made, as it were, quasi sacred by its full owner burying a dead body in it, or by being buried in it himself. It was not fully " sacred" in this case, for it remained private property, but could not be diverted from the purpose to which it had been put.^ There is no such doctrine in the common law. Private prop- erty cannot be withdrawn from commerce in this manner, except in accordance with the law of " charitable trusts," to be hereafter noticed. 1 Moyle's Translation, Oxford : Claren- and closely resembling religious purposes, don Press, 1883, vol. 2, p. 36. Justinian says in another place that 2 Ward?;. The People, 6 Hill, 144. "there is very little difference between 8 1 Moyle's Institutes, note 8, p. 185. public and sacred things." (7th Novel of Tlie underlying thought here seems to Justinian.) have been that these purposes were public CHAPTER IV. THE QUALIFICATIONS OP OWNERSHIP. These are derived from theories concerning the welfare or the interest of the State, or in other words, from the view that, under the circumstances, private ownership should not exist, or if it does exist, that it should be subverted in the particular instance. In this way ownership may be abridged or destroyed on the occur- rence of some act or event, without any fault of the owner, but on public grounds. In such cases there is a limit to the generally absolute character of ownership. Still, ownership continues in full force until the decisive event happens. The instances that may be grouped together under this general statement are these : (1) Theft, or other wrong-doing whereby ownership is subverted ; (2) taxation ; (S) eminent domain; (4) public necessity ; (5) the police power. These will be treated under separate sections. Section I. Theft or other Wrong-doing. — It is a settled rule that in general an owner cannot lose his ownership without his consent.^ The prominent excei)tion to this rule is the transfer of money, or its equivalents, including bank bills, bills of exchange, promissory notes, and checks payable to order and endorsed in blank by the payee, or similar instruments payable to bearer. These last three must be transferred before they arc due, and all must be taken by a person paying value and acting in good faith. This statement does not include bills of lading of goods, nor cer- tificates of stock in incorporated companies. It must be confined to instruments containing promises to pay money. There is a distinction to be taken between a case of theft or other purely wrongful act, and that of fraud. By the term " fraud," is now meant tlie case where the owner intends to trans- fer the ownership, but is induced to do so by fraudulent represen- tations. In this case there is the element of consent on his part, and until the transaction is repudiated the title is vested in the defrauder. Should he accordingly transfer to an innocent pur- 1 Saltus V. Everett, 20 Wend. 267. 424 THE LAW OF PERSONAL PROPERTY. chaser, the title would pass to the latter, and the sole remedy of the former owner would be to proceed against the defrauder. This rule would not be changed though the statutes of a State made the fraud a felony. There is a class of cases where, upon a purchase and sale of goods, it is mutually agreed that the title shall not pass until the goods are paid for.^ The agreement may provide for the pay- ment by instalments. Assuming that such partial payments are made, still the apparent purchaser will have no title until full payment is made, (a) The question may then arise, whether before full payment he can transfer to another the ownership of the chattel itself. The better opinion is that he cannot, and that the most that he can do is to put the purchaser in his own position, even though the latter act in good faith and pay full value. (5) It would be perfectly lawful for a State to provide by law that the " seller," under such circumstances, should take certain steps to insure publicity, such as to file the certificate of sale in a speci- fied public office, under the penalty, if he fail to do so, of losing the ownership in favor of a derivative purchaser acting in good faith ((?). The general principles above stated will not prevent an owner from abandoning goods by a decisive act, and tlms losing owner- ship. Section II. Taxation. — In American law, there is a general power of taxation vested in each State in analogy to a like power in English law, as well as a specific power lodged by the terms of the United States Constitution in the general government. The one power is implied ; the other is express. In general, there is no restriction found in the State constitutions upon the power to tax. It can properly be exercised only for some public purpose. It 1 Ballard v. Burgett, 40 N. Y. 314; Bigelow v. Huntley, 8 Vt. 151; Sargent V. Metcalf, 5 Gray, 306. (a) Benner v. Puffer, 114 Mass. 376 ; criticised as leading to confusion. Benja- Nichols V. Ashton, 155 Mass. 205 ; Thorpe min on Sales (Oorbin, 4th Am. ed.) §§ 358- Brothers & Co. v. Fowler, 57 la. 541 ; 360. A rule contrary to that stated in Mack V. Story, 57 Conn. 407 ; Cole v. the text is found in the following cases. Mann, 62 N. Y. 1 ; Bean v. Edge, 84 N. Y. ]\IeCormick i;. Hadden, 37 111. 370 ; Van 510. Duzor V. Allen, 90 111. 499 ; Vaughn v. (h) Some authorities draw a distinction Hopson, 10 Bush, 337 ; Forrest v. Nelson, between a conditional sale and a condi- lOS Pa. St. 481 ; Lincoln v. Quynn, 68 tional delivery, holding in the latter case Md. 299. that if the delivery is made the condition (c) See in New York, Laws of 1SS4, is waived, and the title vests absolutely ch. 315 ; Rev. Stats, p. 2522, as amended in the vendee. Comer v. Cunningham, 77 by ch. 632 of the Laws of 1892, and ch. N. Y. 391 ; Parker v. Baxter, 86 N. Y. 684 of the Laws of 1893. 586. This distinction has, however, beea THE QUALIFICATIONS OF OWNERSHIP. 425 would be in the highest degree unjust to tax the community for the benefit of a particular individual. If, however, the purpose be public, the power, in the absence of special restriction, is unlimited, since the occasions that may require the exercise of the taxing power cannot be foreseen. A single locality, such as a city or town, may be taxed without extending the taxation else- where. There are reasons requiring taxation in some instances to be limited in its area, as where the object is to further some local improvement ; and such taxation is constitutional. ^ There is a single restriction upon State power to tax found in the United States Constitution to the effect that no State shall witiiout the consent of Congress lay any imposts or duties on imports or exports, except what may be absolutely necessary for executin*"- its inspection laws.^ In regard to taxation by the United States government, there are special rules and some restrictions found in the 8th and 9th Sections of Article I. of the Constitution. If these restrictions are violated, the law is void. Where the taxing power is lawfully exercised, the person taxed may be deprived of his property without any violation of principle, since taxation is necessary to political existence. The individual taxed is assumed to receive an equivalent for the property of which he is deprived in the benefits to be derived from good government and the due administration of law. The distinction between the power of taxation and the right of eminent domain is stated in the next section. Section III. Eminent Domain. — The meaning of this expres- sion is the right of a State or of the United States, as the case may be, to take property for public purposes. This, again, is a power inherent in a State. It may be necessary to exercise it for protection and defence in time of war, or for the welfare of the people in time of peace. A similar power was exercised under the Roman law.^ The law of " eminent domain " is in no respect founded upon feudal principles. It applies both to real and personal property. It has its foundation in the theory that in the presence of imperative public interests private rights of property must give way. Still, this rule is not to be pressed so far as to lead to con- fiscation. The individual owner should be compensated for liis loss, so tliat •' eminent domain " in actual practice is but little more than a compulsory transfer for value. 1 Peoples. Mayor of Brooklyn, 4 N. Y. * The 7th Xovel of Justinian. Provi- 419 ; Town of Guilford v. Supervisors of sion is made in this case for taking prop- Chenango County, 13 Id. 143. erty of the Churcli for the use of the State, 2 Art. I. § 10, cl. 2. and an indemnity is provided for. 42G THE LAW OF PEIISONAL PROPERTY. The obligation to provide compensation is secured by clauses both in the United States and State Constitutions. The language used is, >' nor shall private property be taken for public use with- out just compensation." 1 This clause, as found in the United States Constitution, is only intended as a restraint upon the action of Congress, and not upon that of the StatesP- It is on this ac- count that a like clause is found in various State Constitutions, in order to bind State legislatures. The distinction between the right of eminent domain and the power of taxation is to be carefully noted. Taxation is based upon contribution between the members of the community or of a class of persons ; eminent domain is founded upon the idea that the State takes from an individual more than his share of the public burdens. Taxation falling upon a class of persons is appor- tioned among them according to some rule of apportionment. On the other hand, " eminent domain " operates upon an indi- vidual without reference to any amount imposed upon any other individual.^ Eminent domain can only be exercised by or under sov- ereign authority, i. e., by a State or by the United States. Its exercise is partly a legislative and partly a judicial matter. In other words, there are always two possible inquiries in this class of cases : one is, whether the proposed use for which the prop- erty is to be taken is in its nature public or private ; the other, whether an exigency has arisen in which the right should be exercised. The determination by the legislature of the first inquiry in favor of the use being public may be reviewed by the courts ; * that of the latter, is final and conclusive.^ (a) This principle was applied to a statute allowing rural cemetery associations to take land compulsorily. It was held to be void, as the use was deemed by the court to be private, and not public.^ It is not, however, necessary that the use should benefit the entire people of a State or of the nation, as the case may be. It is enough if it promotes, for example, the industrial power or resources of a considerable number of the inhabitants, or in any i Art. V. of Amendments. * Talbot v. Hudson, 82 Mass. 417 ; 2 Withers v. Buckley, 20 How. U. S. Matter of Deansville Cemetery Associa- 84. tion, 66 N. Y. 569. 3 People V. Mayor of Brooklyn, 4 N. Y. 5 Matter of Fotvler, 53 N. Y. 60. 419, 424 ; Howell v. City of Buffalo, 37 ^ Matter of Deansville Cemetery Asso- N. Y. 267. ciation, 66 N. Y. 569. (a) Matter of Application of Union Water Works Co. v. Bird, 130 N. Y. Ferry Co., 98 N. Y. 139, 153 ; Pocautico 249. THE QUALIFICATIONS OF OWNERSHIP. 427 way indirectly adds to public convenience or even pleasure or recreation. But it will not be enough to justify a claim of emi- nent domain if the property to be taken is to remain under private ownership and control, and no right to the use or to direct the management of it is conferred upon the public' {a) However, the State may delegate the power to a local municipality, or even to a private corporation, such as a railroad or canal company, where the circumstances show that the use will be public in its nature. The mode of exercising this power should next be considered. A common form of expression is to call it a case of "condennia- tion." The property is said to be " condemned." This term will be used as occasion may require in the further course of this discussion. Proceedings to condemn property are regulated by law, and in some instances, as in New York, to some extent by constitutional provision. The New York constitution requires that the amount of compensation should be assessed bj a jury or by three com- missioners appointed by a court of record.^ Details will not be stated here, but must be sought in the particular act or class of acts applicable to the subject. Thus, in taking land, the statute some- times only allows a mode of use or easement to be taken ; in other instances, the entire ownership may be taken. It might happen in the last case that it would finally turn out that a portion of the land was not needed for the public purpose, although it had been fully acquired and paid for. As the ownership has vested in the body (e. ^., a city) acquiring it, it may be sold or disposed of in the same manner as other acquisitions. The principle on which compensation is awarded in condemna- tion proceedings is to make up to the former owner the loss sustained by him. It will accordingly be necessary to take into account the extent of the owner's interest which is to be " con- demned." If it be an easement, such as a right of way, as the entire interest of the proprietor is not taken, compensation will be made accordingly. Then if a second exercise of the power of condemnation were made over the same property, additional compensation must be made.^ It is a fundamental prerequisite to a claim for compensation under our law, that some property should be taken. The lan- guage of the constitutional provision is, " nor shall private 1 Matter of the E. B. W. & M. Co., 96 » Williams v. N. Y. Central E. R. Co., N. Y. 42. 16 N. Y. 97 ; State v. Laverack, 34 N. J. 2 Art. I. § 7. Law, 201. (a) Matter of the Split Rock Cable- Water Works Co, v. Bird, 130 N. Y. Koad Co., 128 N. Y. 408; Pocantico 249. 428 THE LAW OF PERSONAL PKOPERTY. property be taken for public use without just compensation." Accordingly, no claim for consequential damages can be made for the erection of public works in the vicinity of the property of the claimant, unless his property itself be taken. Thus, if a railroad company under public authority should lay its track in the bed of a navigable river, thus cutting off the approach of a riparian proprietor by boats to the river, he would have no claim for compensation from the company, as his propertij would not be taken.i ^^^ While the principle stated in Gould v. Hudson Riv. R. R. Company, just cited, is correct, there is room for doubt whether it was correctly applied. In a similar case in England, it was decided that the construction of an embankment along the river Thames in front of the land of a riparian proprietor, and prevent- ing his approach to the river, deprived him of a right of property for which compensation was due. Such an accessory right to the use and enjoyment of land was deemed itself to be land.^ A cognate question became of great importance in the construction of elevated railways in the city of New York. It was decided that, even conceding that the city owned the fee of the street, yet as it had, on opening a particular street, agreed that it should be forever kept open as a street for the benefit of the abutting property, the owners had an easement appertaining to their land which constituted " property," and which could not be taken or materially impaired in value by the railroad company without compensation.^ (6) 1 Gould V. Hudson Riv. R. R. Co., 6 IMcCarthy v. Metropolitan Bd. of Works, N. Y. 522. L. R. 7 C. P. 508. 2 Duke of Buccleucli v. Metropolitan ^ Story v. Kew York Elevated R. R. Bd. of Works, L. R. 5 H. L. Cas. 418; Co., 90 N. Y. 122; Arnold v. Hudson Riv. R. R. Co., 55 Id. 661. {a) This case has been often questioned, value of the part taken, but also conipen- and may properly be considered as over- satiou for the depreciation in value caused ruled. Kane v. New York Elevated Ry. to the remainder. Henderson v. N. Y. Co., 125 N. Y. 164; Rumsey v. New York Central R. R. Co., 78 N. Y. 423 ; Bohm & New Eng. Ry. Co., 133 N. Y. 79 ; s. c. v. The Met. El. Ry. Co., 129 N. Y. 576 ; 136 N. Y. 543. Cummins v. Des Moines & St. Louis Ry. (b) See also Lahr v. Met. El. Ry. Co., Co., 63 la. 397. What constitutes a 104 N. Y. 269 ; Abendroth v. Manhattan "taking" has been much discussed and Ry, Co., 122 N. Y. 1 ; Kane v. New York variously decided. The tendency of the El. Ry. Co., 125 N. Y. 164. In these later authorities is to regard any invasion cases the principle of the Story case was of a property right as a "taking," whether affirmed and its application extended. property is actually converted and the title It is a general rule, as stated in the text, thereto actually divested, or not. Eaton that purely consequential damages, such v. The B. C. & M. R. R., 51 N. H. 505 ; as those incidental to the occupation of Pumpelly v. Green Bay Co., 13 Wall. 166; the land of another, are not recoverable. Rigney v. The City of Chicago, 102 111. If, however, some property is taken, the 64; Sedgwick on Damages, §§ 1114-1124; owner is entitled to receive not only the Lewis on Eminent Domain, §§ 56-59. In THE QUALIFICATIONS OF OWNERSHIP. 429 Under these rules, it is well settled that no title to the i)rop- erty taken passes until compensation is actually made. It is not, however, necessary that the payment of comijensation sliould precede the public occupation. Payment should be made within a reasonable time. It is enough if an actual and certain rcmedv is provided whereby the owner may comi)el payment of his damages before he is required to part with his property. ^ No distinction in the foregoing statements is made between ]iro- ceedings for condemnation in behalf of a State and of tlie United States. The power of the United States to proceed directly in such a case has been sustained by the Supreme Court of the United States.^ It may also be a petitioner in a State court in the same general way as a private foreign corporation.^ This principle does not go so far as to compel a State to pay for land for the use of the United States,^ nor to justify proceedings under a State law insufficiently framed.^ It is assumed that a State cannot exercise the right of eminent domain so as to interfere with the paramount power of the United States. Still, there would seem to be notliing to prevent the taking from the United States, as a mere landed proprietor, of a portion of its domain within State limits.^ The State has no power under this rule to take one man's property and give it to another, even though it make full compen- sation.'^ This principle was applied to the case of a private road. 1 Matter of the Petition of United ° Darlington v. United States, 82 Pa. States, 96 N. Y. 227. St. 382. 2 Kohl V. United States, 91 U. S. 367. ^ United States v. R. R. Bridge Co., 6 3 Matter of the Petition of United McLean, 517. States, supra. '' Taylor o. Porter, 4 Hill, 140; Hoye * Trombley v. Humjjhrey, 23 Mich. v. Swan, 5 Md. 237. 471. several State.s, moreover, constitutions the owner is the effect produced upon the have been adopted or statutes passed giv- land by the impairment of the easement, ing compensation wdiere property is " in- Such an injury is therefore wholly conse- jured or damaged." quential. Bohm v. The Met. El. Ry. Co., In the development of the law of emi- supra. In ascertaining the extent of this nent domain, the word " property " has consequential injury, the benefits, if any, acquired a broader meaning than it at to the land, caused by the presence and first received. Thus, in the elevated rail- operation of the elevated road, must be road suits in New York, referred to in taken into account. Newman t'. JI. E. Ry. the text, it has been adjudged that the Co., 118 N. Y. 618 ; Bohm v. M. E.Ry.Co., right of an owner of land abutting on a supra;' Sutro v. M. Ry. Co., 137 N. Y. 592 ; street, to light, air, and access is an ease- Bischoff" v. N. Y. E. Ry. Co., 138 N. Y. 257. ment, and is property, and that any im- Further consequential injuries, such as pairment thereof is a taking within the those due to noise, vibration, etc., are not constitutional provision. As these ease- invasions of a property right to be compen- nients are not considered as possessing sated for under the rules of eminent do- value separately and apart from the land, main. American Bank Note (^o. v. N. Y. it follows that the real and only injury to E. Ry. Co., 129 N. Y. 252, 271. 430 THE LAW OF PERSONAL PROPERTY. The decision in Taylor v. Porter led to a provision in the New York constitution, providing a mode of laying out private roads.i When property has been obtained through the law of eminent domain for one public purpose, tliere is nothing to prevent its being again condemned for a paramount public purpose.^ Section IV. Public Necessity/. — By this expression is meant the sacrifice of private property for the public welfare, under such circumstances of overruling necessity that no compensation is required. This subject is frequently alluded to in the old law- books. Thus, KiNGSMiL, J., in the Year Books of Henry VII.^ says that, as to a thing which concerns the commonwealth, one can justify a trespass in order to take goods out of the house, when the safety of the goods is concerned, or to even break down a house for the same purpose. And so in time of war one can justify an entry into another's land to make a bulwark in defence of the king and the realm, and these things are justifiable and lawful for the maintenance of the commonwealth. Some years later, it is said by Shelly, J., that the "commonwealth" is to be preferred before " private wealth," since for the commonwealth one may suffer damage, so that, for example, a house shall be " plucked down " if the next house be on fire, and suburbs of cities shall be plucked down in time of war, for this is for the com- monwealth, and a thing that is for the commonwealth any one can do without being liable to an action.* These principles were followed in a famous case known as the Saltpetre Case.^ This general doctrine, so far as it may justify the destruction of property to prevent the spread of a conflagration, has been carefully considered in a number of cases, particularly in some growing out of the great fire in New York in 1835.^ It has been specifically decided that the destruction by public authority of private property to arrest a fire is not " taking property for public use," within the meaning of the Constitution.^ There is, how- ever, a statute upon this matter applicable to the city of New York, providing that if the city magistracy order a building to be destroyed to stop a conflagration, the owner of the building must be indemnified in a prescribed manner, unless it would, without such act, have been inevitably destroyed.^ This statute has been 1 Art. L, § 7. 3 Zab. (N. J.) 9; Hale v. Lawrence, Id. 2 Crosby v. Hanover, 36 N. H. 404 ; 590. See also Beach v. Trudgain, 2 Grat. Central Bridge Corp. v. Lowell, 4 Gray, (Va.) 219. 474. "^ McDonald v. Red Wing, 13 Minn. 3 21 Hen. Vll. 27. 38. * Year Book, 13 Hen. VII L fol. 15. 8 2 Rev. Laws, 368, 369 ; also. Laws 6 Part 12, Coke's Rep. 12. of 1882, ch. 410 (Consolidation Act), 6 American Print Works v. Lawrence, § 450. THE QUALIFICATIONS OF OWNERSHIP. 431 construed in several cases. It is decided tliat it only applies to the owner of the building, or some one having an interest therein, and accordingly would not extend so far as to protect the owner of goods stored in a building belonging to another person. Such a person would be left to the rules of the common law. In the course of the discussions growing out of these cases, it became important to consider the distinction between the cases where property was taken for " public use," so as to make com- pensation necessary, and where it was taken from necessity, so that the rule of compensation could not be invoked. Reference to these discussions will be found in a note. The true theory is, that most of the so-called cases of "necessity" are reallv a branch of the " police power " in a State, and may properly be placed under that head. No rational distinction can be drawn between the case where property is necessarily destroyed to pre- vent a conflagration, and where a destruction is made to prevent the spread of a disease or a pestilence. Each depends upon the principle that the " safety of the people is the supreme law." i An instance of the same kind is found in the case of persons travelling upon a public highway which is suddenly out of repair, going upon adjacent fields without permission of the owner. This is confined to the case where the obstruction is sudden and recent, e. g., a fresh fall of snow.^ This is held to be the exer- cise by an individual of a public right, finding its justification in necessity. If the obstruction is neither sudden nor recent, its existence is really imputable to the neglect of the public authori- ties, and so not necessary. Section V. Regulation or Destruction of private Property under the so-called " Police Power T — By the police power is meant that authority in the State which regulates private affairs, includ- ing the control and management of property, so as to make them 1 The old cases do not distinguish ac- Senator Verplanck, in Stone v. Mayor curately between the two classes of cases, of New York, 25 Wend. 157, 173, and Thus, the " Saltpetre Case " treats without also in the opinions of Bronson, J., and distinction the erection of bulwarks upon of Senators Sherman and Porter, in private land in time of war, and the de- Russell v. Mayor of New York, 2 Den. struction of property to prevent the spread 461. A note of the reporter to the last- of a fire. The former instance would now cited case on page 491 shows that the clearly be regarded as a case under the court in another cause, involving the same rule of eminent domain. Mouse's Case, question (Lawrence t;. The Mayor), adopted Part 12, Coke's Eep. 63, is an instance of the opinion of Bronson, J., above referred destruction under the doctrine of necessity, to, as a sound exposition of the law, and That was a case where, for the safety of thus sanctioned the ]>roposition that this jiassengers, heavy merchandise was thrown was not a case of taking private property overboard from a barge in a storm. The for public use within the meaning of the distinction between the two classes of Constitution, cases is clearly shown in the opinion of ^ Campbell v. Race, 7 Cash. 408. 432 THE LAW OF PERSONAL PllOPEKTY. consist with the public welfare. Sometimes it is exercised by the State itself, and again by municipalities, or by public officers, such as commissioners of highways. When properly exercised, private rights must yield to it. The general nature of the police power has been defined by the Supreme Court of the United States.^ While it is conceded to be difficult to render a precise definition of it, it is said to be clear that it does extend to the protection of the lives, health, and prop- erty of the citizens, and to the preservation of good order and the public morals. The legislature cannot divest itself of the power to provide for these objects. They belong emphatically to that class of subjects which demand the application of the maxim, salus populi suprema lex? I. The relation of the exercise of this power to constitutional pro- visions. — The attempted exercise of the police power in particular cases may be obnoxious on two constitutional grounds : one, that it is an invasion of a right of property, and another that the legal proceedings resorted to are not " due process of law." These will be considered separately. (1) There are opposing views as to the point whether the police power can properly so be exercised as to destroy vested rights of property. The question has been sharply presented as to prohibitory liquor laws acting upon liquor then in existence so as practically to destroy its value. In a New York case such legislation was held to be unconstitutional and void, as an un- authorized invasion of the right of property.^ On the other hand, the Supreme Court of the United States has decided that a State may forbid the manufacture and sale of intoxicating liquors as a beverage, within its territory, in the exercise of the police power, and further, may declare a brewery a common nui- sance because it produces an intoxicating liquor prohibited by law to be manufactured and sold.'* {a) (2) In the practical exercise of the police power, such methods of proceeding must be resorted to as are usual in judicial in- quiries. Property is not to be taken arbitrarily, or without due notice to the owners and a reasonable opportunity to be heard. Under this head, it has been decided that in a seizure of prop- erty under a police regulation, the law must provide for legal 1 Beer Co. v. Massachusetts, 97 U. S. 3 Wynehamer v. The People, 13 N. Y. 25, 33. 378. 2 Lake View v. Rose Hill Cemetery * Musjler r. Kansas ; Kansas v. Ziebold, Co., 70 111. 191. 123 U. S. 623. («) Kidd V. Pearson, 128 U. S. 1 ; Eileubecker v. Plymouth County, 134 IT. S. 31. THE QUALIFICATIONS OF OWNERSHIP. 433 notice to the owner of the nature and cause of tlie accusation, as well as of the trial of the question whether there has been a violation of law.i If the law should forbid the maintaining of an action by the property owner, it would be unconstitutionaL2 So if the owner's remedy be unreasonably clogged or hampered. ^ II. Instances of the valid exercise of the police power. These are very numerous ; some of them will be specified in this connection. (1) The licensing and prohibition of the sale of intoxicating liquors. This class of laws prevails in most, if not all, of the States. There is no doubt as to the power to regulate and license. The power to regulate, however, seems to imply the power to prohibit,* and there is no reasonable doubt of the constitutionality of prohibitory liquor laws acting in futuro. Sometimes the law assumes the form of prohibition under special circumstances, — as, for example, where a religious meeting is in progress.^ The more general form of license or prohibition is equally valid.^(a) (2) The prohibition of the manufacture and sale of substitutes for butter." (S) These have been termed " oleomargarine cases." (3) Requirements that physicians and mid wives report births and deaths.^ (4) Regulations respecting the drainage of land as related to public welfare.^ ^ Gi'eene v. James, 2 Curtis C. Ct. 187. 2 Preston v. Drew, 33 Me. 558. 3 Saco V. "VVoodsuin, 39 Me. 258. To the same general effect are Fisher v. Mc- Girr, 1 Gray, 1 ; State v. Snow, 3 R. I. 64. 4 Cronin v. The People, 82 N. Y. 318. 5 Com. V. Bearse, 132 Mass. 542 ; State V. Read, 12 R. I. 137. Cf. Dorraan V. State, 34 Ala. 216. ^ Thurlow V. Massachusetts, 5 How. U. S. 504 ; Fletcher v. Rhode Island, Id. {a) A State statute prohibiting the sale in original packages of liquor manufac- tured in and brought from another State was declared by the United States Supreme Court to be an invalid exercise of the police power because repugnant to the clause in the Constitution giving Congress power over interstate commerce. See Leisy v. Hardin, 135 U. S. 100, overruling Pierce V. New Hampshire, 5 How. U. S, ^504. See also Bowman v. Chicago, &c. Railway Co., 125 U. S. 465. These decisions led to the passage of a law by Congress to the 540 ; Pierce v. New Hampshire, Ic!. 554 ; State V. Wheeler, 25 Conn. 290 ; Jones v. People, 14 111. 196 ; Austin v. State, 10 Mo. 591 ; State p. Gurney, 37 Me. 156; Met. Board of Excise v. Barrie, 34 N. Y. 657. ■^ State V. Addington, 12 Mo. App. 214 ; Powell v. Pennsylvania, 127 U. S. 678. ^ Robinson v. Hamilton, 60 la. 134. 9 Donnelly v. Decker, 58 Wis. 461. effect that liquors imported into a State or Territory should upon their arrival be subject to the police regulation of such State or Territory, whether in original packages or otiierwise. 26 Stat. L. 313, ch. 728 (August 8, 1890) This statute was declared constitutional in I/i re Rahrer, 140 U. S 545. {b) Commonwealth v. Huntley, 156 Mass. 236 ; Penj)le v. Arensberg, 105 N. Y. 123 : Waterbury v. Newton, 50 N. J Law Rep. 534. 28 434 THE LAW OF PERSONAL PROPERTY. (5) Provisions in city ordinances requiring fire escapes.^ (6) Regulations concerning tlie speed of railroad trains through cities,^ (7) Prohibition of the pollution of reservoirs and the streams supplying them.^ (8) Restrictions on the sale of pistols other than army and navy pistols.* (9) Regulations as to the keeping of pool-tables for hire,^ (10) Prohibition of the disinterment of the remains of the dead.^ (11) Prohibition of the sale of opium except by medical menJ (12) Prohibition of the erection of wooden buildings in a city within' specified fire limits.^ (13) Prohibition of the sale of coal-oil not bearing a specified fire test.^ (14) Prohibition of the slaughtering of animals within pre- scribed limits. In this connection the " Slaughter House " cases in the Supreme Court of the United States should be referred to. The facts in substance were that the legislature of Louisiana, in a large district of 1154 square miles (including New Orleans, and containing a population of more than two hundred thousand people), granted to a corporation the exclusive right of having slaughter-houses, and required all cattle slaughtered in the dis- trict to be slaughtered there. It also prescribed pecuniary fees to be paid for each animal slaughtered, and allowed the company to retain certain parts of the animal itself. It was held that this was an exercise of the police power in itself perfectly lawful and in no way forbidden by the Thirteenth and Fourteenth Amend- ments to the United States Constitution. ^^ On similar ground, the legislature may provide that specified persons shall have exclusive power to remove dead animals from the streets of a city.^^ Moreover, it is lawful to confer exclu- sive privileges in other cases where public policy is involved, 1 Fire Dept, of N. Y. v. Chapman, 10 352 ; Aronheimer v. Stokley, 11 Phila. Daly, 377. (Fa.) 283. 2 Knobloch v. C. M. & St. P. R. R. 9 Wright v. C. & N. W. R. R. Co., 7 Co., 31 Minn. 402. 111. App."438 3 State V. Wheeler, 44 N. J. Law, 88. i" Slaughter House Cases, 16 Wall. 36. * Dabbs V. State, 39 Ark. 353; State Three of the judges dissented, each writing V. Burgoyne, 7 Lea, (Tenn.) 173. an opinion ; namely, Field, Bradley, ^ Com. V. Kinsley, 133 Mass. 678. and Swayne, JJ. They denied that this 6 In re Wong Yung Quy, 6 Sawy. was a police regulation, but said that it C. Ct. 442. was in the nature of a monopoly, and in '' State V. Ah Chew, 16 Nev. 50. contravention of the Constitution. 8 McKibbin v. Fort Smith, 35 Ark. " River Rendering Co. v. Behr, 7 Mo. App. 345. THE QUALIFICATIONS OF OWNERSHIP. 435 as where text-books are to be used in the common schools of the State.i (15) The State may on similar principles regulate modes of travel, as by requiring that locomotive engines shall sound whistles,^ or that flagmen shall be stationed at crussings,^ or that trains shall stop at way stations,^ and it may regulate the issue and taking up of tickets by common carriers.^ The power to regulate may be exercised to the inconvenience of adjoining owners.^ (16) " Police power " is largely exercised in the A'arious States through the medium of licenses to follow a trade, pursuit, or avo- cation, such as a license to keep a pool-table ; " to lawyers to practise ; ^ to keepers of private markets ; ^ to peddlers of sewing- machines ; ^^ to brokers in real estate ; ^^ and to hotel-keepers.^^ Similar principles are extended to market regulations ; ^^ also to auctioneers ; i* and to the regulation of packing-houses engaged in the packing of provisions.^^ (a) In some cases State interference has been rested on special grounds, as, for example, because the interests affected by it have received property under the rules of eminent domain, e. g., railways or highways, or because an exclusive privilege has been granted by the State, as in the case of public ferries. State regulation, however, is not limited by such facts as these. The police power may be relied upon in its broad form as stated at the outset of this discussion. As we have seen, one mode of exercising the police power is through the medium of a license. It is highly important to dis- tinguish between such a license and one required for revenue pur- 1 Baucroft v. Thayer, 5 Sawy. C. Ct. i" Machine Co. v. Gage, 100 U. S. 502. 676. 2 Pittsburgh, &c. R. R. Co. v. Brown, " City of Little Rock v. Barton, 33 67 Ind. 45. Ark. 436. 3D, L. & W. R. R. Co. V. East ^^ city of St. Louis v. Bireher, 7 Mo. Orange, 41 N. J. Law, 127. App. 169. * Davidson v. State, 4 Tex. App. 545. ^^ City of Bowling Green v. Carson, 10 5 Fry V. State, 63 Ind. 552. Bush (Ky.), 64 ; State v. Gisch, 31 La. 6 Textor v. B. & 0. R. R. Co., 59 Md. Ann. 544. 63 1* Goshen v. Kern, 63 Ind. 468. ^ Com. V. Kinsley, 133 Mass. 578. ^^ Chicago Packing, &c. Co. v. Chicago, 8 Wilmington v. Jlacks, 86 N. C. 88. 88 111. 22l'. 8 New Orleans v. Dubarry, 33 La. Ann. 481. (a) A statute fixing the maximum is constitutional. People v. Budd, 117 charpe for elevating grain is a legitimate N. Y. 1 ; on appeal, Budd v. New York, exercise of the police power over a busi- 143 U. S. 517. ness affected with a public interest, and so 43G THE LAW OF PERSONAL PROPERTY. poses. The latter is a mere revenue measure, and has in it no element of police regulation. It is but an exei'cise of the power to tax in a particular manner. But a license considered as a police measure cannot properly be treated as a mode of taxation. Only a reasonable amount should be exacted for the purpose of properly carrying out the provisions of the license law. This distinction is of great consequence in determining the power of a city by ordi- nance to regulate trades and occupations by means of licenses. It may be that when the object is to regulate exhibitions and places of amusement, a greater sum may properly be exacted under the police power than in the case of ordinary trades and occupations.! A license, thus regarded, is not a contract. It may be revoked at pleasure.^ (a) Accordingly, if one under a license purchases property to sell again, for example, pistols, he can be lawfully prohibited by a police regulation from selling after his license has expired, particularly if sufficient time was accorded to him to sell before the license expired.^ The true theory of such a license is that it is but a permission to do an act which without the per- mission could not be done.* There have been statutes in some of the States making discri- mination, in licensing trades or occupations, between their own citizens and those of other States. These may be void as trench- ing upon the provisions of the United States Constitution concern- ing the regulation of commerce.^ (h') The mere license to sell is not of itself a " regulation of com- merce," but a regulation of the privilege of selling.^ If, how- ever, any discrimination be made in favor of the products of the State as against those of other States, the law will be void.^ (c) Still, a mere license law operating upon citizens of other States solely may violate that other clause of the Constitution ^ which 1 This distinction is well stated, with ^ Stater. Burgoyne, 7 Lea (Tenn.), 173. citation of authorities, in No. Hudson * Carrier v. Brannan, 3 Cal. 328 ; County R. R. Co. v. Hoboken, 41 N. J. Metropolitan Boaid of Excise v. Barrie, 34 Law, 71. A tax on an avocation is said to N. Y. 657. be a true tax, in People v. Equitable Trust ^ Qjty of Marshalltown v Blum, 58 Co., 96 N. Y. 387, 396. It is added tliat la. 184 ; In re Watson, 15 Fed. R. 511. unless they ai'e imposed to restrain or reg- ^ Corson v. State, 57 Md. 251 ; Howe nlate some obnoxious trade or business, Machine Co. »;. Cage, 9 Baxter (Tenn.), 518. such taxes must receive the condemnation '' State v. Furbush, 72 Me. 493 ; In re of enlightened statesmanship. Rudolph, 6 Sawy. C. Ct., 295. ■^ Com. V. Kinsley, 133 Mass. 578. 8 ^.rt. IV., § 2, cl. 1. (a) Sprayberry i'. City of Atlanta, 87 (c) See Minnesota v. Barber, 136 U. S. Ga. 120. 313. {b) Crutcher v. Kentucky, 141 U. S. 47. THE QUALIFICATIONS OF OWNERSHIP. 437 secures to citizens of each State all privileges and immunities of citizens in the several States. ^ (a) Under the police power, a law may require that no citizen of the State shall he excluded from the equal enjoyment of the facilities supplied by the owners or lessees of theatres or other places of amusement by reason of race, color, or previous condition of servitude.^ {b') There are, of course, many miscellaneous regulations which may be justified under the police power. It would seem that it would be lawful, for example, reasonably to regulate in cities the height to which apartment or tenement houses should be constructed upon streets.^ The State in the practical exercise of the police power frequently vests it in a city or other municipal corporation. Many judicial questions are presented from that point of view. There can be no doubt as to the general propriety of such a delegation in matters of local importance. The inquiries will be in the main the same as where the State itself directly exercises it, with additional ques- tions as to the meaning and limitations of the vesting statutes. In other words, there will be two general inquiries : first, What power did the legislature intend to vest in the municipality ? This is a question of statutory interpretation or construction. Secondly, Is the power conferred lawful in its nature as a branch of the police power ? This last point will be determined by general rules governing police power, no matter by what authority it may be Qxercised.* III. Instances of the umvar ranted exercise of the police poiver. — A State cannot, under a pretended exercise of the police power, impose a restriction upon the individual citizen which does not in fact connect itself with police regulation.^ Every citizen has a general right to pursue a trade or business. If this be perfectly lawful and in no way injurious to the health or welfare of others, it would appear that it should not be prohibited, though it may be liable to just taxation. The act of a State legislature violating this doctrine may be idtra vires and void. 1 McGuire v. Parker, 32 La. Ann. 832. * See, for details, 1 Dillon on Jlunicipal 2 Penal Code of N. Y. § 383; People v. Corporations, chapter 12 (4th ed.). This is King, 110 N. Y. 418. a work of very Iiifrh merit and warmly 3 Dictum in People v. D'Oench, 111 commended to students. N. Y. 359, 361. ^ Matter of Jacobs, 98 N. Y. 98. (a) The granting of licenses to sell violating the Fourteenth Amendment. li(luor may be restricted in the discretion Trageser v. Gray, 73 >Id. 250 ; Welsh i'. of the legislature to a certain class, e. g., to The State, 126 Ind. 71. citizens of the United States of temperate b) See ch. 692, Laws of 1893, amend- habits and good moral character, without ing § 383 of the Penal Code. 438 THE LAW OF PERSONAL PROPERTY. It is quite plain that a legislature cannot by its own mere fiat make a particular matter a branch of the police power. The sub- ject to be regulated must be within the police power before the law is passed which regulates or suppresses it. Whether a particular law is justihed by the police power is purely a judicial question for the courts. It is a preliminary matter, and must exist as a basis for the law to control it. If that be so adjudicated, then the expediency of the exercise of the power in any i)articular instance is wholly a matter of legislative discretion. The sole question for the courts is, does the " police power " embrace the legislation in question. Under this rule the legislature has no power to prohibit the manufacture of cigars by tenants of tenement houses in their rooms.i A city ordinance conferred unlimited power on certain officials to grant or refuse leave to carry on public laundries in a city or municipality. In the exercise of this power, a discrimina- tion was made wholly against Chinamen. This was declared to be unlawful.'^ It is not within the police power to prohibit the manufacture or sale for food of any substitute for butter or cheese produced from pure, unadulterated cream or milk ; ^ though it would be lawful to prohibit the use of ingredients not necessary or essential to the manufactured article itself, with the view of giving it the sem- blance of butter. This would be a device to mislead or deceive which the legislature has the power to restrain.* Without citing additional instances, the general result is that while legislative power is broad and ample to regulate the acts of individuals, so as to promote the public welfare, and, in case of a conflict with individual interests and the public good, to cause the former to give way, yet the mere arbitrary exercise of restraint or regulation of individual acts is not to be tolerated, where such acts are innocent, and no public good is to be achieved by their restraint or prohibition. The " police power," though indispen- sable in a civilized country, is a dangerous one, being capable of great abuse, and no invasion of the liberty or property of a citizen should be allowed, unless public ends require it or would be apparently promoted by it.^ 1 Matter of Jacobs, 98 N. Y. 98. 678, upholding similar legislation ; also 2 Yick Wo V. Hopkins, 118 U. S. 356. ante, p. 433. 3 People V. Marx, 99 N. Y. 377. ^ Reference may be made, upon this * People V. Arensberg, 103 N. Y. 388, aspect of the subject, to People u. Gillson, See also Powell v. Pennsylvania, 127 U. S. 109 N. Y. 389. PART 11^ DISTINCTIONS PECULIAR TO PERSONAL PROPERTY. CHAPTER I. ATTRIBUTES OP OWNERSHIP, INCLUDING THE POWER TO USE, SELL, EXCHANGE, ETC. Various terms are used to indicate personal property. Amons^ these may be mentioned goods, chattels, wares, merchandise, and things (either in possession or "in action"). These words, for the most part, may be used indiscriminately. In the matter of the construction of written instruments in which they are found, — such as wills or statutes, — differences in their meaning may become important. The word " chattel " has a very broad and comprehensive meaning, including movable property in every variety of form. The phrase " thing in action " is used of rights from the point of view of their being enforceable in a court of justice, including both contracts and causes of action springing from a tort or wrong. Section I. The Poiver to sell or exchange. — It is a well-settled rule that the right of property in chattels includes the free and unfettered right on the part of the owner to make use of them and dispose of them as he may see fit, in the way of enjoyment or profit, unless his act be inconsistent with the public welfare. This clear right is secured by constitutional provisions. These have already been noticed while discussing the police power. The right to convey land did not exist under the feudal system. Under the relation of feudal lord and vassal, the land, tbough apparently transferred in full ownership or " in fee," was assumed to have been granted in confidence in such a way as to create a personal relation, so that the lord could not sell his interest, per- haps for a money rent or services, without the consent of the vassal, or the latter without the consent of the lord. This rule led to a practice, which was recognized in law, that the lord might law- fully exact from the vassal (grantor) a sum of money for allowing him to alienate or convey the property. This was termed a " fine 440 THE LAW OF PEKSONAL PKOPEETY. for alienation." A statute of great importance was enacted in the eighteenth year of Edvv^ard I. (Statute of Westminster IIl.),^ which permitted a sale so that a purchaser would hold the land bought by him of the " chief lord," and not of the vendor. The conse- quence was that on a second sale no " fine for alienation " could be exacted. The land was freely alienable. This statute does not pre- vent restrictions upon the assignment of a limited or partial inter- est, e. g.^ a lease. It has generally been re-enacted in this country. It has been decided in New York, where the statute prevails, that a clause in a conveyance reserving to a grantor a right to exact a sum of money on a sale by his vendee, is repugnant to the nature of the estate, and void.^ Such clauses frequently exacted as much as a quarter of the purchase-money oh a second sale, and were known as " quarter sales." No such general rule ever prevailed as to personal property. Without freedom of sale or exchange, ownership is not com- plete. Many movable articles are produced in great excess of the wants of the producer. To deny the right of sale would be to make the article comparatively valueless, and to check and em- barrass production. In case of sale, the unrestricted right to make a succeeding sale passes to a purchaser. If one should attempt to restrict a subsequent transfer, the restriction would be inoperative and void. The validity of this rule, as applicable to personal property, is shown in the decisions upon the laws prohibiting the sale of ardent spirits. To test the question, let it be assumed that ardent spirits have been and are at this moment " property," and so recognized by the laws. A law is then passed that ardent spirits shall not be sold except, perhaps, for medicinal purposes. The existing owners are thus deprived of the general power of sale. The question, then, is, has there been a violation of a right of property ? This question was discussed, as a constitutional question, with great care in a case in New York.'^ It was there decided that such a law substantially destroyed the ownership in intoxicating liquors at the time vested in persons within the State, and so violated the constitutional provision that a person shall not be deprived of life, liberty, or property without due process of law. Such a law might be enacted if it were prospective in its operation.* 1 18 Edw. I. c. 1, known as the stat- pared with Mugler v. Kansas, 123 U. S. ute of Quia Eynptores. 623, to the effect that snch a law, though 2 De Peyster v. Michael, 6 N. Y. 467. an invasion of the right of property, is 2 Wynehamer v. Tlie People, 13 N. Y. justifiable under the " police power." 378. ^Ante, p. 432. * This decision must, however, be com- ATTRIBUTES OF OWXEKSHIP. 441 Similar rules would apply to the right of an owner to create temporary or limited interests in his property, e. ij., to pled<'-e it. Rules of public policy may, however, in some instances, inter- vene to prevent transfers. These are unobjectionable, particularly when not retrospective. Prominent among such rules are those which forbid the assignment of mere rights of action, perhaps to prevent litigation, or with a view to secure an income without anticipation, or on public grounds, as, for instance, salaries of public officers not yet due, or seamen's wages, or a life insurance held by a married woman upon her husband's life. Rules of this kind for the most part originate in statute, and are to be treated as exceptions to a general rule, justified by the special circum- stances of the case. Section II. The Right to abandon. — Ownership of personal property appears also to include not only the power to give it away to another, but also the right to abandon or destroy it, having due regard to the rights of others. The right to abandon is not, however, very well settled in the decisions. It has been presented to the courts as a question of liability on the part of an owner, as where a ship has been sunk by an unavoidable accident in a public navigable river. It has been held, in such a case, that in some instances on abandonment of the possession and control of the ship all liability ceases.^ It has, however, been decided in this country that an abandonment at sea does not divest the owner of his property .^ In the State of Louisiana, abandonment may take place by force of the Revised Civil Code, § 3448. Decisions of the courts will be found in a note.^ Section III. The Power to dispose of Property hy Will. — It may be doubted whether the power to dispose of property by will is fairly to be implied from ownership. The power of disposing of personal property by will appears to be coeval with the common law. The general power to devise real estate did not exist until the year 1540, except in certain localities, by custom. In the year just named, general power to devise land was conferred by statute.* A distinguished writer is of opinion that a true power of devis- ing or bequeathing property originally existed in no society except the Roman. He accordingly turns to Roman jurispru- 1 "White V. Crisp, 10 Exch. 312. See McGregor v. Ball, 4 LI. 289, on an Arkan- also Brown v. Mallett, 5 C. B. 599. sas statute. 2 Whitwell V. Wells, 24 Pick, 25. * 32 Hen, VIII, c. 1, as snpplemented ' Hereford v. Police Jur}-, 4 La. Ann. by 34 Id. c. 5. 172 ; Creevy v. Breedlove, 12 Id, 745 ; 442 THE LAW OF PEKSONAL TEOPERTY. dence for the source of all our modern ideas respecting wills. The whole subject is from this point of view to be considered his- torically, by tracing the origin and progress of the idea of testa- tion in the Roman law, and its adoption in modern Europe down to our own time. The original theory of a will was that it was an act of legisla- tion, occurring at Rome in the peaceable assemblies of the people, or while they were engaged in a military campaign.^ (a) This method was used by the patricians alone, as the plebeians had no standing in the assembly referred to. The wills thus made were entirely oral. The general right to make a will is recognized in the Twelve Tables.^ It would appear that the clause to this effect was framed to allow the plebeians to make a will. There thus came into use the will by a fictitious sale or conveyance, called '■'■ per aes et libram,''^ or "by copper and scales." This was made in the presence of five witnesses and a balance- holder, together with the fictitious purchaser, or, as then called, " heir." This form of will was thus a conveyance inter vivos, by which, through certain prescribed forms, the testator passed over his estate to his " heir," or, as we would say, devisee or legatee. No writing was then necessary. The peculiarity of it was that it was irrevocable ; so that the testator was henceforward at the mercy of the fictitious purchaser. Wills were, therefore, as a rule proba- bly made only when the testator supposed himself to be near his end. By-and-by, in the course of judicial decision, the prcetor (or Roman judge) introduced a less formal method, whereby the real intent of the conveyance could be disclosed in a writing, in the presence of seven witnesses, who affixed their seals to the outside as fastenings, so that it could not be broken open. At first, the devisee (purchaser) was necessarily informed of his rights, so that wills became immediately public ; when the praetor's method took its place, the conveyance (^per aes et librani) became a mere form. The accompanying writing disclosed the testator's intentions, which might be secret, and hence revocable. The next step was 1 In the former case it was said to be 2 Maine's Ancient Law (11th Ed. ), 202. made in the Comitia Calata, and in the Pater fainiUas uti de pecunid tuteldve rei latter, in procindu, suae legdssit, ita jus esto. (n) The theory that the making of note, where the doctrine of the text is wills in the Comitia Calata was a legis- adopted. Almost nothing is known of the lative act is combated by Sir Henry Maine, nature of the will in procinctu. Moyle Ancient Law (11th ed.), p. 199. But see states that it also was an act of legisla- Hunter's Roman Law, p. 766, and Moyle's tion of the whole populus engaged in a Institutes of Justinian, vol. 1, p. 235, campaign in the field. ATTRIBUTES OF OWNERSHIP. 443 taken after the empire was established, and signing by the Avit- nesses became necessary. There were thus, in the time of Justinian, three historical sources of a Roman will, and in general controlling its validity and execution : the witnesses and the requirement of their con- tinuous presence together, in order to publish the will, from the old law {jus civile) ; the seals, and the number of the witnesses, from the praetor's edict ; and the subscribing by the testator and the witnesses, from the imperial constitutions.^ But even down to this time the oral will, in the presence of seven witnesses, could be adopted.2 The progress in this law through the prtetor's edict resembled to some extent the development of the principles of equity juris- prudence. The formal conveyance by the testator conferred the legal title to the property upon the transferee, while the equitable title was created by the writing, which the praetor or judge would cause the holder of the formal title to respect. After a short period of possession, the equitable owner was clothed by a legal rule with the absolute title as against all claimants. The law, having reached this stage, was, after the destruction of the Roman empire, brought down to modern times through the medium of the church or ecclesiastical courts, which, from an early period, had the cognizance of wills of personal property ; though wills of real estate could not be regularly made, as has been seen, until a statute was enacted in the reign of Henry VIII. The right to make a will has been declared in this country to be a creature of positive law, and not a natural right. ^ Section IV. Succession to the Property of an Owner dying in- testate. — A similar question may be raised as to this point. Is succession derived from the law of nature, or is it a mere positive regulation ? Is it an incident of property ? As a matter of philosophy, it is difficult to see how tlie rights of property in a particular owner can be prolonged to his kindred after his death. Succession is, no doubt, an older conception than that of testamentary disposition. If it be conceded, as is now claimed by many leading jurists, that the idea of property is closely connected in its origin with that of the family, and that under the patriarchal system the family was represented by its head, then the step is a natural one to the proposition that on the death of the head some one should stand in his place and represent him, not 1 Justinian's Institutes, Book II., Tit. » Patton v. Fatten, 39 Ohio St. 590, 10, § 3. 597. 2 Id. § 14. 444 THE LAW OF PERSONAL PROPERTY. merely to the members of the family group, but to other families and strangers. Succession by inheritance is thus a natural off- shoot from patriarchal families. It closely resembles the law of corporations sole, where the corporate power is continued from predecessor to successor. It is not necessary, however, to conceive of one person only as successor. There may be sev- eral co-successors, or co-heirs, taken together, representing their predecessor. The oldest idea of succession, viewed historically, seems to be that of the legal continuation of the existence of the former proprietor in his successor. The latter not only took all the decedent's rights, but assumed all his liabilities. He was a so- called universal heir. The former owner, though in fact dead, lived on in law. This idea has been modified in modern times so as to relieve the heir or other successor from legal responsibility, except to the extent of assets received from the former proprietor, his predecessor. Succession as growing out of family ties must from an early period have depended upon kinship. A leading use of a will at the outset was to provide for testamentary succession where there was a default of kindred. There is, even in modern days, a condi- tion of unstable equilibrium in the law in respect to the conflicting claims of the kindred to the succession, and of the right of tlie testator to dispose of his property freely by his will. In the Roman law, there were strong restraints upon the disinheriting of children. There was a special remedy given to complaining children against the will of a father who had thwarted their just and proper claims, and reciprocally to parents against an undutiful will made by children. If nothing was left in either case, there was a theory of mental unsoundness, which did not mean true in- sanity, but such a disregard of duty as to show a want of that affection to which a party so closely related is entitled. In any event, a child was held to be entitled to one fourth of a parent's estate. In England, there has been a strong tendency in favor of the utmost liberty of testation, except in the case of lands given to charitable purposes. In France, the Roman theory has prevailed in modern days, and the code to a large extent denies the power of making a will in case the owner of property leaves children. The development of thought in some of the American States closely resembles that recognizable in England, even to the dis- paragement of bestowments upon charitable institutions. A word should be added as to primogeniture, or succession of the oldest son to the land of his ancestor. The older systems of law do not draw this distinction between the oldest son and the ATTRIBUTES OF OWNERSHIP. 445 other children, but admit equal inheritance and co-heirship. This is true as a matter of property simply ; but v,-hen political authority is involved, it is almost an essential idea that the headship of a family sliould be vested in a single person. This was the plain requirement of the middle ages. Kingly power being feeble, the feudal lord closely resembled a patriarchal chieftain, and was the recognized head of all to whom he was bound by family and social ties. True, as representing the property of an ancestor, he would naturally be under responsibilities to the other members of the family, to permit them to participate in the benefits he received. At this time law had come to treat the power over property as equivalent to ownership. His rights were magnified at the expense of his duties, and so he was soon treated as absolute owner. Couple with this the power of his ancestor to make a will of property so far as it belonged to him as owner, and the present law of England is reached, which briefly stated is, primogeniture prevails in the inheritance of land, unless there is a will to the contrary. As to the succession to personal property, the result of the authorities, after great conflict of opinion among the most dis- tinguished jurists, is that if an owner died without leaving hus- band, widow, or kindred, the goods went to the king, as being without an owner and so bona vacantia. It is not the correct view tliat the church had any interest in the property, as some maintain. It had merely the right or duty of jurisdiction or administration, and the right of possession for these purposes.^ The main duties imposed by the law upon the bishops (or so-called ordinaries) was to pay the debts of the intestate, and to apply the residue, if any, for the benefit of his soul, by providing for the chanting of masses. Ordinaries appear to have neglected these duties in a flagrant manner, so that an Act of Parliament was passed in 1357 (31 Edward III. stat. 1. c. 11) directing the ordinaries to depute the next and most lawful friends to administer the intestate's goods, to collect his rights of action, to pay his debts, and to " administer and dispend for the soul of the dead." These administrators were also declared to be accountable to the ordinaries in the same manner as executors. The duty to " dispend for the soul of the dead " continued until the time of the Reformation, when that was deemed to be a " superstitious use," opposed to public policy, and prohibited. The administrator, accordingly, after payment of debts, was not accountable for the residue. The same principle would apply to executors after payment of debts and legacies. This very unsatis- factory state of the law continued until the Statute of Distribu- 1 Dyke v. Walford, 5 Moore P. C. Cas. 434, 488-496 (a. d. 1846). 446 THE LAW OF PERSONAL TKOPERTY. tions was passed in the reign of Charles II. (22 & 23 Car. II. c. 10, as explained by 29 Id. c. 3, § 25), which required all ad- ministrators (except a husband) to distribute the surplus in a prescribed manner among the next of kin. The husband was allowed to hold the property of his wife as at common law, with- out any disturbance by the statute. It may be said that the Stat- ute of Distributions was largely derived from the 118th Novel of Justinian, though not a transcript of it.^ It is only proposed to notice in this connection the theory on which the right of succession is to be rested. The details of the law of succession will be found in a succeeding chapter on title by will and in case of intestacy .^ 1 This Novel was adopted to con-ect affect existing claims, and that it shall go inequalities in distribution at that time into effect at a future specified day, thus existing. It consists of six chapters and anticipating two of the most beneficent an epilogue. Four of the chapters con- checks recognized in modern times upon cern the division of estates. The last chap- arbitrary legislation, ter (6th) is noticeable from the fact that ^ pggt^ p. (J33. it declares that the new rule does not CHAPTER II. THE DISTINCTION BETWEEN CORPOEEAL AND INCORPOREAL PERSONAL PROPERTY. Personal property is either corporeal or incorporeal. Corpo- real property is the object of the senses, and may be seen or touched. This is the ordinary kind of property, within the ob- servation of all men. Incorporeal property exists in contemplation of law, and has only an ideal existence. Instances are the rights of an author, either at common law or by copyright ; of an inven- tor ; the right to a trade-mark, or to the "good-will" of a busi- ness. So a seat in the Stock Exchange is a species of incorporeal property, and like other property may be taken by legal process for the owner's debts.i Rights of action, termed "things in action," are also " incorporeal." ^ By a " thing in action " is meant a right to proceed in a court of justice to obtain redress, be it money or other form of relief. The most generic division is, things in action springing from contract, and those derived from tort. Thus, one may have a cause of action for a libel or slander ; for trespass, or by reason of an act of negligence. All of these are things in action, and are the subjects of ownership. Accordingly, if one owns a document evidencing a cause of action, e. g.^ a promissory note or a bond, and he is unlawfully deprived of it by a wrong-doer, he may bring an action for its conversion and recover its value. In this case he would proceed against the wrong-doer. He might, however, elect to regard the title as still in himself, and sue his debtor upon the contract as though he had not been deprived of the possession of the instrument. Chattels real are also a species of incorporeal property. Such property exists where one has an interest in land for a definite ]ieriod, as, for example, a specified number of years, while the ultimate ownership, termed a reversion, is in another. This so- called " term for years " is in law a chattel, no matter liow long 1 Powell V. Waldron, 89 N. Y. 328 ; ^ ^n unlocated land certificate is a Grocers' Bank v. Murphy, 60 How. Pr. 426. chattel incorporeal. Porter v. Burnett, 60 But see Barclay v. Smith, 107 111. 349. Tex. 220. 448 THE LAW OF PEKSONAL PROPERTY. the term may last. As it however partakes of the nature of land, it is not a strict chattel, but possesses some of the qualities of real property ; one important feature considered as personal prop- erty is that on the death of an owner it passes to his executors or administrators, and not to his heirs. A widow cannot have dower in it, nor a husband curtesy. The explanation of this anomaly in the law is a historical one. An interest in a " term for years " was originally treated as a contract. This is of course a " thing in action " and personal property. In process of time the contract ripened into an estate. The estate still retains traces of its origin, and to this extent is personal property. The details of this subject are more conveniently treated in works on Real Estate. CHAPTER III. . VARIOUS DISTINCTIONS OF OWNERSHIP. Ownership may be either absolute or qualified, absolute or con- ditional, complete or partial, legal or equitable, separate or joint. These distinctions will be considered in separate sections. Section I. Absolute and qualified Ow7iersJnp. — The nature of the property itself may be such as not to be susceptible of in- defeasible ownership. Reference is here made to the right of property in animals. These, for the treatment of this sul)jcct, must be classified into the ordinary domestic animals, and those by nature wild. Wild animals, again, are divisible into those which are partially tame and those which are wliolly wild. As to domestic animals, there is no question. One may have an indefeasible property in them, which is as complete as if he owned an inanimate chattel. ^ The young of such animals in gen- eral belong to the owner of the dam, except in the case of young swans (cygnets), which belong equally to the owner of the sire and dam, assuming that these are owned by different persons.^ The general rule rests upon the fact that the dam has more care over the young than the sire, while it is departed from in the case of swans, because the male bird shares the care with the female.^ In some cases the ownership is divided between a tem- 1 This rule applies to a particular ani- son in nature ; for the cock swan is an eni- mal once wild but now domesticated, e. g., blem or a representation of an affectionate a buffalo. Ulery v. Jones, 81 111. 403. and true husband to his wife above all 2 Queen v. Lady Young, The Case of other fowls; for the cock swan holdeth him- Swans, Part 7 Coke's Rep. 15 b. self to one female only, and for this cause 3 Lord Coke, in reporting this case, nature hath conferred on him a gift beyond states the principle in quaint and interest- all others ; that is, to die so joyfully tliat ing terms. He refers to the Case of Lord he sings sweetly when he dies ; upon which Strange and Sir John Charlton, in the the poet saith ; Year Book of 2 Richard III. 15 b and 16 a, ^ , ■, „ , , . ,• , .. 1 it, 4- T 1 Ci. 1, J ^ Dvlc.ia defecta modulntur carmmn lingua, where it appeared that Lord Strange had „ , ^ j- ■ ■ • , j- '■^ ,.-, , , r,- CdTitntor.cyamts.funeris ipse sui, ;-i2e. Section I. Booty. — There is a practical distinction of much consequence between booty and prize. As to the latter, a court of admiralty has, by the regular course of law, jurisdiction to deter- mine its status, that is, whetlier it is lawful prize or not. This is not so with booty.i The right to that does not depend upon a legal adjudication, but upon undisturbed possession by the captor for a reasonable time. This defect in law is remedied in England by statute, conferring upon the admiralty court jurisdiction in this class of cases.^ The right to take possession and liokl captured property is based upon the right of conquest.^ Booty vests in the crown in England ; here, in the national government. It has long been the practice in England to award the booty to the captor, the crown surrendering its right, derived from its prerogative. Vari- ous claimants have had their conflicting claims disposed of, being settled by the Lords of the Treasury, upon some assumed prin- ciple. A decision did not form a precedent, because it was not rendered by a court. The Banda & Kirwee Booty Case was the first judicial decision in England, and was rendered by Dr. Lush- ington in the Court of Admiralty. It was a case of great im- portance, involving about X 750,000. The money was divided between the commander-in-chief, being "in the field," with all his staff, also In the field, on the one hand, and the division that made the capture on the other. The scale on which the distril)u- tion was to be made among the several ranks Avas not under the 1 Booty is sometimes called "Army & Kirwee Booty Case, L. R. 1 Adm. & Ecc. Prize" in distinction from captures at sea, 109 (1866). which are called " Naval Prize." ^ Gilmer v. United States, 14 Ct. of 2 3 & 4 Vict. c. 65, § 22. See Banda Claims, 184. 470 THE LAW OF PERSONAL PROPEKTY. order of submission to the admiralty judge properly before him.i The question of the participation of other divisions in the fund, on the ground that by their " community of enterprise " they were constructive captors, was extensively discussed, and the claim was disallowed under the circumstances. It was decided that co-opera- tion entitling to a share must directly tend to produce the capture, and that it must be strictly limited to encouragement to the friend and intimidation to the enemy .2 Questions arose in this country during the conflict with the Confederate States as to the capture of property by the Union armies. This was particularly in connection with the capture of cotton. It was decided by the Supreme Court of the United States that cotton found within the Confederate territory was a legitimate subject of capture by the forces of the United States, even though it belonged to a foreigner never coming to this coun- try, and that the title vested in the United States as soon as the cotton was reduced to firm possession.^ " There is no necessity for judicial condemnation. In this respect, captures on land differ from those at sea." * In these proceedings, the owner must be 1 Banda & Kirwee Bootj' Case, supra, p. 268. 2 The distinctious between the law gov- erning booty and prize are pointed out in the case. It was argued for twenty-six da3's by many of the ablest counsel in England. There was an action in the Court of Chan- cery to distribute the fund on the theory of a "trust," which under the terms of the grant was disallowed, no technical trust being intended. Kinlook v. Secre- tary, L. R. 15 Ch. D. L Reference may also be made to an English Blue Book pub- lished in 1864, entitled " Report of the Commissioners appointed to inquire into the Eealization and Distribution of Army Prize." 3 Young V. United States, 97 U. S. 39. The same principle was decided in Mrs. Alexander's Cotton, 2 Wall. 404; United States V. Padelford, 9 Id. 531 ; Sprott v. United States, 20 Id. 459; Haycraft v. United States, 22 Id. 81 ; Lamar v. Browne, 92 U. S. 187. * Young V. United States, supra, p. 60. Cotton was peculiarly the subject of confiscation from its character. It was potentially an auxiliary of the en- emy, and constitituted a leading means by which they expected to perpetuate their power. It might have been destroyed. Congress passed the so-called "Abandoned and captured property act" (12 U. S. Stat. at Large, 820) both to avail itself of its just rights as a belligerent, and to recognize its duties under the enlightened principles of modern warfare. It was provided that property when captured should be sold, and the proceeds paid into the United States Treasury. Any claimant might within two years after the close of the rebellion bring suit in the Court of Claims for the proceeds, and on establishing his ownership and that he had never given "aid or comfort" to the rebellion, receive the residue of the proceeds after deducting lawful charges. This act applied to all owners, whether foreigners or natives. United States v. O'Keefe, 11 Wall. 178. (n) The words " aid and comfort " in the statute mean such assistance to the enemy as would constitute treason if rendered by one owing allegiance to the United States. The Proclamation of Pardon issued by the President Dec. 25, 1868 (15 U. S. Stat, at Large, Appendix No. 15) relieved all who owed allegiance to the United States from showing as a basis for prosecuting (a) See generally as to this act, Briggs v. United States, 143 U. S. 346. TITLE BY OPJGINAL ACQUISITION. 471 properly notified.^ The 'proijerty is treated as the offending thing. It is not confiscated as punishment, but for the purpose of weak- ening the enemy. This principle underlies the act of Aug. 6, 1861, chap. 60.2 The act of July 17, 1862, chap. 195, proceeds on a different principle, which was to confiscate the property of traitors by way of punishment. This was confined to the natural life of the offending oivner. In case of confiscation of a debt, notice should be given to the debtor, in order to obtain jurisdictloyi.^ Confiscation proceedings under the laws of the Confederate States had no effect upon the property of a citizen of a loyal State. ^ Section II. Prize. — This term is applied to such property as is taken at sea by the right of conquest in time of war, whether from an opposing belligerent, or from a neutral violating the law of nations in respect to war. In this class of cases, it is the general rule that the property should be brought for condemnation into a port belonging to the captor. Still, under peculiar circumstances , condemnation may take place, though the captured property is in a neutral port, and it may be sold there.^ Such a case must be treated as an exception, and cannot be cited as a precedent.^ It is, perhaps, a correct distinction that undisturbed posses- sion by a captor of a captured ship gives him a title de facto., while the condemnation by a prize court gives the title de jure? The elements usual in prize cases are that the property is taken possession of at sea, and that it belonged to an enemy, or a neutral violating the laws of war. No force is necessary. Cotton abandoned at sea and picked up by the enemy is prize rather than " derelict" property.^ Prize accrues to the government or State to which the captor belongs. Individuals derive their title from the State, and their rights are limited by the grant to them. As a rule, as has been seen, the captor must bring the prize into some port of his own country, and proceed against it in a court having jurisdiction, called " a prize court." This in Eng- their claims that they had not given "aid ^ p]icenix Bank v. Risley, 111 U. S. and comfort" to the enemy, but did not 125, affirming Risley i;. Phenix Bank, 83 help one who owed no allegiance, such as N. Y. 318. a foreigner not being within the United ^ Id. States, but having property captured there. * Stevens r. Griffith, 111 U. S. 48. Congress must intervene in favor of such a ^ The Polka, 1 Spinks Ecc. & Adm. R. person. He can otherwise receive no assist- 447(1854). ance from the amnesty, nor from the courts. ^ The Polka, supra, also The Henrick 1 Chapman v. Phojnix Nat. Bank, 85 & Maria, 4 Rob. 43, and 6 Id. 138, n. N. Y. 437. For a case where the owner ' See remarks of court in The Gauntlet, recovered the proceeds as not falling within L. R. 4 P. C. 184, 192. the statute, see United States v. Quigley, ^ Seventy-eiglit Bales of Cotton, 1 Low- 103 U. S. 595. ell, 11 ; The Wando, Id. 18. ( 472 THE LAW OF PERSONAL PROPERTY. land is a court of admiralty. Here it is a United States court ; at present, a District Court having by act of Congress the re- quisite jurisdiction. The proceeding is m rem, or against the property itself. The decision of a prize court having jurisdiction so far fixes the status of the property that the title passes to the captor. This is recognized in courts of other countries, including those of the country where the captured property originally belonged. Redress, if the decision be erroneous, can only be obtained by diplomacy ; and if that fail, by war. The ground of this rule is that the legal proceeding is against the tJiing captured. Its object is to establish the statiis or ownership of the thing, and the judgment of the court fixes or establishes such owner- ship. It is not intended to develop the details of prize law, but only to point out the relation of the topic to the title to personal property. The origin of the jurisdiction was first clearly stated in Lindo V. Rodney ,1 a great case decided by Lord Mansfield, where it was shown that a prize court entertained a special jurisdiction in time of war only, conferred upon it by statute, and was a different tri- bunal from the ordinary oi " instance " court of admiralty, sitting to transact maritime legal business in time of peace. In the United States the district court has authority over both classes of cases, though the prize jurisdiction is, for the most part, dor- mant in time of peace. For further information, the admiralty decisions in England and in the courts of the United States, par- ticularly those of the Supreme Court of the United States, as well as the treatises of standard text-writers, should be consulted.^ DIVISION II. — Title hy Finding. This topic will be considered under two sections : I. Finding on Land. II. Finding at Sea. Section I. Finding on Land. — Finding takes place when one who is not the owner of a chattel takes possession of it on the ^ Reported in a note to Le Caux v. Many authorities are collected by Mr. Eden, 2 Doug. pp. 612, 613. David Roberts, in his Treatise on Admi- 2 Reference may be made to the stand- ralty and Prize (Part II.). There is in ing interrogatories in 2 Wheat. Appendix, this book a useful collection of the names p. 81, and 1 Ch. Rob. 381. and to the of the judges of the United States Supreme TJ. S. Revised Statutes, §§ 4613-4652, Court, and the date of their appointment, to the rules in admiralty of the Supreme together with a list of admiralty reports, Court, and to notes in the Appendix both in England and in this country, to 1 and 2 Wheat. Important block- down to the year 1868, pp. 641-644. Tlie ade cases are The Franciska, 2 Spinks treatises on International Law should also Ecc. & Adm. R. 113. The Prize Cases, be consulted. 2 Black, 635, and Blatchford's Prize Cases. TITLE BY OrjGINAL ACQUISITION. 473 ground that it has been lost ^ by its owner, not knowing at the time who is owner, nor having reasonable grounds to believe that he can be found. The line between finding and stealing is nar- row, and the test in a close or doubtful case is, whether the so- called finder knows at the time who the owner is, or has reasonable grounds to believe who he is.^ If so, and he appropriates the chattel to his own use, he is a thief. If not, he does not become a thief by a subsequent wrongful appropriation to his own use. The capital fact in larceny or stealing is the act of felonious taking. On the other hand, if the owner is not known at the time of taking, or there are no reasonable grounds for believing that he can be ascertained, there is no larceny, though the finder conceals the goods, or converts them to his own use, after ascertaining who the real owner is.^ (a) This rule has been held not to be applic- able to cattle at large in the highway .^ The principle has been stated in the following forms in the cases : — If one claiming to be a finder takes goods into his possession with a felonious intent to deprive the owner of them, and then has reasonable means of ascertaining who is the owner, it is a case of larceny.^ The place of finding may be material as tending to show whether the goods were really lost or mislaid, or left by the owner under circumstances which would lead him to return for them.^ One who, when he finds a pocket-book containing money, appropriates it with intent to take entire dominion over it, and at the same time reasonably believes that the owner can be found, is guilty of larceny." Where one, at the time of finding, has reason- able ground to believe, from the nature of the property or the circumstances under which it is found, that if he does not con- ceal, but deals honestly with it, the owner will be ascertained, he will be guilty of larceny if, at the time of taking the property into his possession, he intends to steal it.^ The finder of lost goods which\ have no marks by which the owner can be identified, and who does! not know to whom they belong, is not guilty of larceny, even if lie does not exercise diligence to discover who the owner of the/ goods may be.^ The rule that the finder of property so markea 1 There must be a loss. Reg. v. West, Porter v. State, Mart. & Yerg. (Tenn.) 6 Cox C. C. 415. 226. 2 People V. Swan, 1 Pork. C. 0. 9 ; * People v. Kaatz, 3 Park. C. C. 129. State V. "Weston, 9 Conn. 527; State v. ^ Com. v. Titus, 116 Mass. 42. McCann, 19 Mo. 249. ^ Griggs v. State, 58 Ala. 425 ; Roun- 3 Lane v. The People, 10 111. 305 ; State tree v. State, Id. 381. V. Taylor, 25 la. 273 ; State v. Conway, '' Reed v. State, 8 Tex. App. 40. 18 Mo. 321 ; People v. Anderson, 14 8 Brooks v. State, 35 Ohio St. 46. Johns. 294 j People v. Cogdell, 1 Hill, 94 ; » State v. Dean, 49 la. 73. (a) Allen v. State, 91 Ala. 19. 474 THE LAW OF PERSONAL PROPERTY. that the owner can be ascertained is guilty of larceny if be con- verts it to his own use, has been applied in the case of a bar of bullion lost from a stage-coach.^ The rule as laid down in the English courts is, that if a man finds goods that have been actually lost, or are reasonably sup- posed by him to have been lost, and appropriates them with intent to take the entire dominion over them, really believing when he takes them that the owner cannot be found, there is no larceny. If he reasonably believes that the owner can be found under the same circumstances, it is a case of larceny.^ The " reasonable belief " referred to in the last sentence means such belief as might be derived from the finder's previous acquaintance with the ownership of the particular chattel, the place where it is found, or the nature of the marks upon it.^ Reasonable belief at the time of finding that the owner can be found, is insisted upon by many decisions.* Accordingly, if the original intention be innocent, no subsequent change of intent will constitute larceny.^ It is not a case of finding, in the legal sense, where a passenger accidentally leaves goods in a railway-car, and a ser- vant of the road appropriates them.*^ Nor where a purse was accidentally left on the prisoner's stall and appropriated by her. In this last case there was plainly no loss of goods.'^ The court / said : " The distinction is quite clear between property mislaid — \ that is, put down and left in a place to which the owner would \ be likely to return for it — and property lost." (a) Dropping the distinction between finding and stealing, the next point to be considered is the act that constitutes " finding." There may be competing claims between the owner of propert}^ such as land or a building upon which the goods are claimed to be found, and one who may casually pick them up or lay hold of them. /The correct view in such a case is, that if the goods were lost as / distinguished from being deposited, the casual finder, having first obtained possession, would have the better right. A leading illus- tration is found in the case where a commercial traveller picked up a parcel (which proved to contain bank notes) on the floor of a shop at which he had called on business. It was decided that 1 State V. Clifford, U Nev. 72. * Reg. v. Deaves, 11 Cox C C. 227 ; 2 Reg. V. Thurborn (or Reg. v. Wood), 3 Reg. v. Knight, 12 Id. 102 ; Reg. v. Mat- Cox C. C. 453; s. c. 1 Den. C. C. 387. thews, 28 L. T. N. s. 645. In this case there is an elaborate opinion 5 p^^gg. t'. Preston, 5 Cox C. C. 390. by Parke, B. Reg. v. Clyde, L. R. 1 C. ^ Rpg ^_ pjerce, 6 Cox C. C. 117. C. R. 139. 7 Reg. V. West, 6 Cox 0. C. 415. 3 Reg. V. Thurborn, 1 Den. C. C. 387, 396. (a) Liverniore v. White, 74 Me. 452. TITLE BY ORIGINAL ACQUISITION. 475 he was the finder, rather than the owner of the shop.^ This prin- ciple has been extended to the case of a domestic servant picking up a roll of bank bills in the public parlor of a hotel, there being no presumption in such a case that the money belongs to a guest of the hotel.2 So, as between one who had bought a safe and another who, having permission to use it, found a roll of bmk bills between the outer casing and the lining, it was held that the latter was the true finder.^ If, however, the goods had been in the lawful custody of the owner of the hotel or other property referred to in the various cases cited above, the latter would have been the real finder.* The effect of finding is, that the finder is owner as to all per- sons except the true owner.^ As if one should find a jewel, and he should be deprived of it by another against his consent, he could recover its full value. He would hold the proceeds in trust for the true owner, if discovered, in the same way as he held the jewel itself. As between him and the rightful owner, the title is in the latter. He has no lien upon the chattel for the act of finding, nor is. he entitled to any reward.*^ If, however, a reward be offered, a lien is created to the extent of the reward.'^ The offer of a reward isTn the nature of a proposal to contract, which is deemed to be accepted by the finder on complying with the proposal. The remedy against the finder by the owner for a wrongful refusal to return the goods is an action for the specific thing (replevin), or at his election an action for conversion to obtain its value. Reference should be made here to the special cases of treasure trove, estray, and wreck. Treasure trove (treasure found), says Bracton^ (following the Roman law), "is an ancient deposit of money or some other metal, respecting which memory exists not, so that it has no owner, and so, of natural right, it becomes the property of him who has found it, so that it shall not belong to another. Other- wise, if any one shall have hidden anything under the ground for the sake of gain or of fear or of custody." Accordingly, a " treasure " must be found by accident. If A. found a " treasure " on B.'s land otherwise than by accident, it belonged in the old law 1 Bridges y. Hawkesworth, 21 L. J. N. s. purchased by her employer, found genuine (Q. B.) 75 ; s. c. 15 Jur. 1079. bank bills in an envelope. 2 Haniaker v. Blanchard, 90 Pa. St. * McAvoy v. Medina, 11 Allen, 548. 377. See also Matthews v. Harsell, 1 E.D. ^ Armory v. Delamirie, 1 Strange, 505. Smith, 393. ^ Wood v. Pierson, 45 Jlich. 313. 3 Uurfee v. Jones, 11 R. I. 588 ; Bowen "^ "Wentworth v. Day. 3 .Met. 352 ; Cuin- SuUivan, 62 Ind. 281. In this case, a miners v. Gaun, 52 Pa. St. 454. servant, while sorting a bale of old papers 8 o Bracton (Twiss' ed.), 271. ^Yg THE LAW OF PERSONAL PROPERTY. altogether to B. In Justinian's legislation, it belonged one-half to the owner of the land where found, and one-half to the finder, though if the finder found it wholly on his own land, it belonged to him. In Bracton's time, in England, it belonged wholly to the king ; and the same view is stated by Lord Coke in his Institutes.^ Bract'on takes the distinction that by " natural right " treasure trove belongs to the finder, while by " the law of nations " (mean- ing apparently positive law) it belongs to the king. The reason why it belonged to the king, apparently, is that it is a case of goods without an owner {bona vacantia), as in the case of one dying intestate without next of kin. Such property passes either to the church or to the king,^ and the better opinion is, to the latter. The king might grant it to a private person. Mines of metal be- long to the owner of the soil, except gold and silver, which also by common law belong to the king. The charge of treasure trove belongs to the coroner acting for the king. In this country, the State would succeed to the rights attributed in this section to the king. It has been said that if a man find in the sea precious stones of which no man was ever proprietor, these do not belong to the king, but to the finder .^ But it seems that this rule will not be applied to Spanish dollars found in the sands of the seashore, as they will be presumed to have come there by the loss of some wrecked vessel.* On the general subject reference may be made to the authorities cited in the note.^ Estrays or strays are names applied to domestic animals, being at large and without the possession of their owner. The general rules of finding are applicable when the owner is not known. If, however, the owner is ascertained, the finder will at most only have a claim for the necessary expenses of keeping the property .6 Straying animals may, however, be regarded from the point of view of the public inconvenience of their being at large in tlie highway, or as trespassers upon the property of others. From these points of view, the matter of their detention by placing them in an enclosure or " pound " becomes important, and the consequent riglit of a pound-keeper to hold or detain them until charges and damages are paid. This subject is largely regulated by statute in the respective States. It has of late years lost much of its importance, owing to the increased efficiency of laws ex- 1 3 Coke's Inst. 132. * Talbot v. Lewis, 6 C. & P. 603. 2 The legal maxim was, "(^lioc? Hon OT/3t< 5 3 Coke's Inst. 132, 133, cap. 58; 2 Christies, capit fisciis." See Atty-Gen'l v. Id. 168 ; 20 Viner's Abr. 414, 415. Kohler, 9 H. L. Cas. 654. « Amory v. Flyn, 10 Johns. 102. 3 Laws of Oleron, Art. 34 ; 2 Black Book of the Admiraltj^ pp. 470, 471. TITLE BY ORIGINAL ACQUISITION. 477 eluding cattle from rnnning in the highways. The recent cases are mainly based upon the correct construction of the local stat- utes, and are for the most part not of general interest. A case may, however, be referred to where the question was raised whether a statute authorizing cities to restrain animals from running at large, and to sell them in a prescribed way for the recovery of a penalty and costs, was a violation of the constitutional rule that one is not to be deprived of his property without due process of law. It was decided that under the circumstances it was not.^ (a) Wreck is the legal term applied to property lost or shipwrecked at sea and cast up on the shore. Bracton treats of this subject, and states that the proper application of the word " wreck " is to the case where the ship is broken up, from which no living thing has escaped, and principally if the owner of the article has been drowned. Whatever comes to land therefrom shall be the property of the king, nor shall any one else claim or have anything thereof from the king, although he may have land near the shore of the sea, unless he enjoy a special privilege con- cerning wreck. This rule seems to be based on the supposition that the owner is not known (bona vacantia), so that it is only a question between the finder and the king. Bracton proceeds to say, " unless it be that the t?'ue oivner coming from elsewhere may show by certain marks and signs that the things are his property, as if a live dog has been found, and it can be proved that he is the owner of the dog, it is thereupon j^resumed that he is the owner of the dog and of the things. And in the same way, if certain signs have been affixed to the merchandise and other things." ^ This is written of the common law, and is in substance, that if the owner cannot be found, the wreck vests in the king ; but if he can be shown by certain signs or marks, the property shall belong to him. The Statute of Westminster (3 Edw. I. c. 4) states that it is agreed that where a man, a dog, or a cat escape " quick " (mean- ing alive) out of the ship, that such ship, &c., is not to be adjudged a wreck, but the goods shall 1)e kept for the owner and restored to him, if he make claim within a year and a day, and if not, they shall remain to the king. The correct view seems to be that the animals named are put as instances, and that the question of ownership is merely matter of evidence.^ 1 Fort Smith v. Dodson, 46 Ark. 296. 2 2 Bracton (Twiss' ed.) 273. Strays in New York are regulated by 2 ^ Hamilton v. Davis, 5 Burr. 2732 ; R. S. 517-522. Code of Civ. Proc, §§ 3082- Bailiffs, &c. of Dun wick v. Starry, 1 a & 3115. (6) Ad. 831, 844. (a) Burdett v. Allen, 35 W. Va. 347 ; 1890, as amended by ch. 254, Laws of 1891, Coyle V. MeXabb, 18 S. W. Rep. (Tex. ) 198, and chs. 61, 92, and 252, Laws of 1892. (6) See also Art. VI. ch. 569, Laws of 478 THE LAW OF PEKSONAL PROPERTY. Tlie matter of wreck is in general a question of jurisdiction between the courts of admiralty and common-law courts. The admiralty jurisdiction subsists so long as the shore is covered witli water ; rights enforceable in the common-law courts exist only when the land is left dry.^ A ship cannot be considered a " wreck " (or ivreccum marlis) unless at the time of taking posses- sion she is either on the shore or left high and dry on land. Accordingly, a log of wood found floating in the sea near the shore, and drawn up on a rock by a person wading into the water, is not " wreck," but an incident to admiralty jurisdiction, — a droit of the admiralty. The same rule would be applied to a log cast upon the beach but carried back to sea by the next tide and taken while floating.^ Grants of "wreck" are made at times in Eng- land within a specified territory, in which case the grantee has a special property so as to prevent a wrongdoer from taking wrecked property away, though as between him and the owner the latter may have the title.^ A wreck may become an obstruction on the seashore, and the public welfare may demand its removal. This is provided for in England, and the public authorities have power to destroy and remove sunk, stranded, and abandoned ves- sels in any fairway or on the seashore under specified circum- stances. The statute applies to the cargo, stores, etc., as well as to the vessel itself.* There is, in New York, a statute regulating wrecks and pro- ceedings with reference to them in much detail. The statute includes goods cast by the sea or any inland lake or river upon the land, and provides modes for ascertaining title to the wrecked property, for salvage claims, sale, etc. [h) Section II. Finding at Sea. — The common-law meaning of the term " sea " is that part of the ocean or tributary rivers where the tide ebbs and flows. In the United States an enlarged mean- ing has been given by the courts to the jurisdiction of courts of admiralty, and waters in fact navigable have been included in the term " sea," though above tide water. " Derelict property," in the admiralty branch of the common law, means property at sea abandoned by its owner. On the other hand, if the property, though abandoned, be cast up high and dry 1 The Pauline, 2 Rob. Adm. 358. » Bailiffs, &c. of Dunwick v. Starry, 1 2 Stacpoole v. Tlie Queen, 9 Ir. R. Eq. B. & Ad. 831. 619 (Ch. App.); Palmer v. Eouse, 3 H. & * 40 & 41 Vict. c. 16. (a) N. 505. (a) Amended by 52 & 53 Vict. c. 5 by ch. 254, Laws of 1891 ; and chs. 61, (1889). 92, and 252, Laws of 1892, §§ 137-150. {b) Ch. 569, Laws of 1890, as amended TITLE BY OEIGIXAL ACQUISITION. 479 on the shore, it is " wreck," and not derelict.^ It would accord- ingly seem that the law of " derelict " in this country would accompany the expanded meaning of admiralty jurisdiction. The case of saving derelict property is quite different from that of " finding " on land. The rules of the admiralty or mari- time law prevail. No contract is necessary to entitle the salvor to compensation. The maritime law regards the nature and value of the services rendered by the salvor to the property saved, rather than the question whether he rendered the services through the medium of a contract with the owner. Still, even in the mari- time law, if the property be not derelict, a contract is necessary as a basis for compensation. The important fact to constitute "derelict" is ahandonment. Abandonment depends largely on intention. The master and crew must leave the ship with intention not to return. This point is highly important, for if the ship be utterly abandoned, the salvors have an exclusive right to possession ; if not, the salvors are bound, on the master's return, to give up the charge to him, whereupon he may refuse to continue to employ them, and may employ others.^ Abandonment is accordingly largely a question of fact, and all the circumstances must be considered in determining the intention. Some authorities are referred to in a note.^ (a) Dere- lict applies to all property abandoned at sea, though not having been on a ship, as the term is ordinarily understood. Thus, the obelisk known as " Cleopatra's Needle," having been abandoned in a vessel constructed entirely for the purpose of conveying the obelisk from Alexandria to England, was declared derelict. The court fixed the value of the obelisk at £25,000 sterling.* The amount awarded to sah^ors in the case of "derelict" is usually large, and is frequently about one half of the value of the 1 The Pauline, 2 Rob. Adm. 358 ; Stac- one vessel jump on board the other, the poole V. The Queen, 9 Ir. R. Eq. 619. abandonment is not so complete as to Ante, p. 477. constitute a case of derelict. The Fenix, 2 The Champion, Brown. & Lush. 69. Swabey, 13. But where it appeared that 3 A laden barge accidentally breaking a vessel was picked up with four to five loose from her mooiings in a navigable river, feet of water in the hold, her compasses and drifting about with no one on board, and the seamen's clothes having been is not derelict. The Zeta, L. R. 4 Adm. taken off, the court declared her "derelict." &Ecc. 460. There is no intent to abandon The Gertrude, 30 L. J. N. s. Adm. 130. in this case. For a similar reason, if, on * The Cleopatra, L. R, 3 P. D. 145. an alarm attending a collision, the crew of [a) See also The Ann L. Lockwood, 37 bone, 51 Id. 916 ; The Lepanto [1892], Fed. R. 233 ; The Eleanor, 48 Id. 843 ; P. 122 ; The Capella [1892], P. 70. The Fairfield, 30 Id. 700; A Lot of Whale- 480 THE LAW OF PERSONAL PROPERTY. property saved. The amount depends upon the meritorious chrr- acter of the services. Some instances are cited in the note.^ There is, however, no fixed rule ; but the nature of the service, the risk run, and losses voluntarily incurred by salvors may be taken into account where the value of the property saved is ample. ^ In some cases even more than half may be awarded.^ The residue belongs to the owner, if he can be ascertained ; if not, it becomes public property, and is termed a " droit of the admiralty." DIVISION III. — Title hy mere Occupancy. There is a number of cases which may be grouped together in this connection, involving the appropriation by an individual to his own use of things which, without such appropriation, would be without an owner. The law permits items to be separated in this way from the mass of unappropriated things, and to become by appropriation private property. Instances of some importance are gains obtained by hunting and fishing, appropriation of ice formed in navigable streams, etc. Legal questions may arise as to the point whether occupancy has become so complete as to confer ownership. The principle, as stated in the Roman law, is, that " wild ani- mals, birds, and fish, — that is to say, all the creatures which the land, the sea, and the sky produce, — as soon as they are caught by any one become at once the property of their captor." * This rule may be modified by game laws, but the Romans had no game laws. The principle may also be qualified in our law, as has been shown before, by the fact that the captor was at the time a tres- passer upon the land of another, and took the animals there. ^ The act of capture may be complete or inchoate. In the latter case the title does not pass unless the animal is brought within the power of the captor, — as, for example, by being killed, or so ■wounded or entangled in nets, etc., that he cannot escape. It will not be sufficient to wound an animal and to send the hunter's dog in pursuit, even though the animal be captured by the dog. It must have come into the possession of the hunter.^ 1 Property worth £5,100, salvage The City of Chester, L. R. 9 P. D. awarded £2,300, The Craigs, L. R. 5 182. P. D. 186 ; property worth £750, salvage 3 The Rasche, L. R. 4 Adm. & Ecc. 127 £360, The Hebe, L. R. 4 P. D. 217 ; (1873). property valued at about £2,800, salvage * Institutes of Justinian, Book II. £900, The Andrina, L. R. 3 Adm. & Ecc. Title I. § 12 (Moyle's ed. Vol. 2). 286 ; one half the value awarded. The ^ Pierson v. Post, 3 Caines, Term R. Livietta, L. R. 8 P. D. 24. (N. Y.) 175. Ante, p. 450. 2 Bird V. Gibb, L. R. 8 App. Cas. 559 ; 6 Buster v. Newkirk, 20 Johns. 75. TITLE BY OEIGINAL ACQUISITION. 481 Legislation for the protection of wild animals is resorted to both in England and in this country. In England the laws forbid un- necessary slaughter of wild animals, including birds and fish, and thus aim to prevent their extinction. There is also beneficent legislation to promote increased production of various species. Reference is made to a leading statute in England where the legislation has been carried so far as to forbid the killing of wild birds in the breeding season. The act extends to all offences of this kind within the jurisdiction of the admiralty, as well as to offences committed on land. There is a useful enumeration in a schedule appended of the various wild birds found in Great Britain.i Certain American statutes are also referred to in a note.2 DIVISION IV. — Title hy Accession. By this expression is meant the case where some addition is so made to an existing chattel that by a rule of law it belongs with the chattel to the proprietor of the latter. Examples are where the addition is attached to, incorporated with, or derived from a chattel. This statement will include the young of domes- tic animals, the expenditure by one person of labor and skill upon the chattel of another, or even the addition of materials. Acces- sion is found as a title in the law of real estate, and gives rise to the doctrine of "fixtures." Some more specific statements as to this subject in reference to personal property will be useful. Section I. Tlie Ownership of the Yoimg of domestic Animals. — The general rule is, that the young belong to him who owns the mother, — partus sequitur ventrem. The rule is deemed to rest upon the general consent of mankind, and to be founded upon principles of natural justice.^ (b) Where, however, the animal is leased for hire, and young are brought forth during the hiring, 1 43 & 44 Vict. c. 35, as amended by oysters, § 441, also hy other persons, 44 & 45 Vict. c. 51. § 640, cl. 8 ; or using dredges for taking 2 U. S. Rev. Stats, as to food fish, oysters or other fish, (a) §§ 4395-4398, as amended by 25 Stat. L. 1 3 ggg Bracton, Book II. ch. II. par. 1 ; (1888) ; as to seals and other fur-bearing Institutes of Justinian, Book II. Tit. I. animals within the Territory of Alaska, Id. § 19. It was stated from the English §§ 1956-1968, as amended by 25 Stat. L. bench by Rickhill, J., in 1406 (Year 1009 (1889). See also X. Y. Penal Code Book, 7 Hen. IV. fol. 9, pi. 13). See as to the act by a non-resident of taking Tyson v. Simpson, 2 Hayw. (N. C.) 147. {a) See also Arkansas Cattle Co. v. Laws of 1892). For the principal amend- Mann, 130 U. S. 69 ; Meyer Brothers v. ments to this act, see chs. 321 and 573, Cook, 85 Ala. 417. Laws of 1893. (b) See also The Game Law (ch. 488, 31 482 THE LAW OF PERSONAL PROPERTY. thev belong to the hirer.^ The rule does not extend to a mere gratuitous borrower. Section II. Addition hy Labor or hy the Use of new Materials. This is called in the Roman law '■'' specification'" meaning the converting of another's material into a new form (species). In that system the line of inquiry was, under what circumstances does such an act give the title to the new product to him who has made the addition ? In the common law, the point of view rather is, under what circumstances does the owner of the mate- rials have a right of property in the whole subject-matter, includ- ing the additions ? The older Roman jurists looked at the subject from two opposite points of view. One class thought that the change of form had substantially destroyed the original substance. Consequently, he who had labored upon it took the new product by a species of " occupation," as though he were a finder. Another class con- tested this view, by claiming that the case was one merely of addi- tion, and that the new product belonged to the original owner of the materials. Justinian, following certain jurists, took a middle view, and ordained that when the manufactured article could be reduced or brought back to its original materials, the title was not changed ; otherwise, it passed to tlie manufacturer. He says, by way of illustration, that a vessel of metal can be melted down, — reduced to the bronze, silver, or gold of which it is made. Accord- ingly, the ownership remains. On the other hand, it is impossible to reconvert wine into grapes, or oil into olives, and accordingly the title is changed. He is, however, inconsistent in his illustra- tions, for while he states that if an author write in letters of gold a poem, history, or speech on the parchment of another, the owner- ship of the parchment attracts to itself the poem, etc., yet if a painter paint a picture on the board of another, the title to the picture and board vests in the artist. The sole reason given for this last statement is that it would be absurd were it otherwise.^ 1 "Wood V. Ash, Owen's E. 139. The the young of the rest ; ... for it is his court went on the ground that if this rule duty to cultivate pi-operly and use them did not prevail, the lessor would have the like a careful head of a family." Institutes rent, and the lessee would have no profit, of Justinian, (Mnyle's ed.) Book H. Tit. I. See also Putnam v. Wyley, 8 Johns. 337 : §§ 37-39. Concklin v. Havens, 12 hi 314 ; Stewart v. ^ Several leading jurists considered this Ball, 33 Mo. 154 ; Elmore v. Fitzpatrick, distinction as unreasonable. Gains H. 78. 56 Ala. 400. This principle is found in In Dig. 6, 1, 23, 3, exactly the opposite the Roman law. "The term 'friuts,' rule is stated. It had, however, the ma- when used of animals, compri.ies their jority of voices in its favor, and is sup- young, as well as milk, hair, and wool ; ported by Bracton, quoting not only from thus lambs, kids, calves, and foals belong the Institutes, but also from an abstract of at once, by the natural law of ownership, it well known in the Middle Ages, called to the fructuHvy (lessee), . . . [who] ought the " Summa of Azo." Vol. I. (Twiss' ed.) to replace any of the animals which die from 7 7 . TITLE BY ORIGINAL ACQUISITION. 483 In many cases the value added becomes thoronglil\' incorporated with the original article, so as to form a part of it, so that the independent existence of the one is lost in the other. Illus- trations are paint put upon a carriage, thread used in making a garment, and the like. The carriage and garment would attract the paint, the dye, or the thread to itself. This last case is used both in the Institutes and in Bracton as an instance of accession. " Purple " is suggested, on account of its great value at that time. The Roman law, with its pervading si)irit of equity, required that wherever the ownership might rest, he who lost his title should be paid by the other for the value of his property. The party in pos- session could resist an action by the other unless that was done, under the rule that " no one can have his wealth increased to the detriment of another.'' One of the earliest cases of accession in the English law books occurred in the reign of Henry VII. ^ It appeared that A. owned several " dickers " ^ of leather which came through the act of another into the possession of B., who made up the leather into slippers, shoes, and boots, and that A. brought his action to ob- tain the slippers. It was claimed by the defendant's counsel that the incorporation of the thread of the shoemaker with the leather changed the title.^ Bracton was cited to the court, and appears to have been the only authority mentioned. It is directly to the contrary. The court discarded this view, and substantially adopted the rule of the Roman law, that the shoes, etc., belonged to the owner of the leather. In the course of the decision the general distinctions of the Roman law were recognized. This is a highly interesting case, as showing how the rules of the Roman law influ- enced the courts of common law through the medium of Bracton.* Cases of accession may be regarded under two further as- pects : one, where the addition is made with the consent or under the employment of an owner ; and the other, where there is no sucli consent or employment. In the first class of cases there is no legal doubt. While, philo- sophically, the case is one of accession, it would be an affront to common sense to maintain that the title Jo tjxa accessions was not 1 Year Book, 5 Henry VII. fols. 15, 16, man law, — that of bullion made into pi. 6. money, or money into " plate." Perhaps 2 A "dicker" was a package of ten the thought here was, that money had hides. qualities entirely different from plate, — 2 The theory seemed to be that the such as legal tender, — and accordingly thread attracted to itself the leather, in- that money, when reduced to plate, could stead of the leather the thread. in no proper sense be regarded any longer * The court, however, used one illustra- as money, while leather in the form of tion apparently inconsistent with the Eo- shoes was still leather. 484 THE LAW OF PERSONAL PROPERTY. in the employer, no matter how large their value might be. The manufacturer or mechanic would have a lien or right to detain the goods until payment was made, unless credit was given. This lien would be lost by an unconditional delivery of the goods to the employer, whereupon he would simply become a debtor to the amount of the mechanic's bill.^ Still, there may be cases in which the mechanic furnishes the principal part of the materials, in which case the thing when completed will belong to him, though the employer may furnish a subordinate part of the materials.^ The next class of cases embraces those where the work is done without the owner's consent, including the acts of wilful wrong- doers. No element of contract is found here, and the rule is that by the doctrines of accession the materials, with all the additions, belong to the owner of the principal chattel. Unlike the rule of the Roman law, no com])ensation need be paid, since in our law the claim for compensation must rest upon coiitract. It is a general rule, that where property has been wrongfully converted into another species of property, if its identity can be traced in its new form, it will belong to the original owner.^ (a) Thus, where wood has been converted and made into coal, the coal belongs to the owner of the wood, who may sue for its value.^ So, if a tres- passer cut trees and convert them into railroad ties, the owner of the trees owns the ties.^ The general rule of the Roman law, that if there bjaan entire change in the chattel of one by the labor of others, the ownership of the chattel is changed, generally prevails in this country. An important exception has been grafted upon this rule by some courts, to the effect that if the change be made by a wilful wrongdoer, the title is not affected. Thus, if corn be taken by a wilful trespasser from an owner and converted into whiskey, the latter product be- longs to the former owner, and could, of course, be claimed by him ^ Gregory v. Stryker, 2 Den. 628, is a whether the transaction is a sale by the good ilhistration. A wagon worth $11.50 mechanic or a hailment to him. was so repaired as to be worth $90. It ^ Williams v. McClanahan, 3 Mete. was decided that the wagon as repaired (K}'.) 420. belonged to the employer, the mechanic * Eiddle v. Driver, 12 Ala. 590 ; Betts having his lien. Worth v. Northam, 4 v Lee, 5 Johns. 348 ; Chandler v. Edson, Ired. (Law), 102. 9 Id. 362. 2 Story on Bailments, § 423. Another ^ Strubbee v. Eailway, 78 Ky. 481. way of regarding the subject is to inquire {n) Gnckenheimer r. Angevine, 81 N. Y. 311 ; Baker v. Meisch, 29 Neb. 227. See 394 ; Eaton v. Munroe, 52 Me. 63. Some also Isle Royale Mining Co. v. Hertin, 37 courts have refused to apply this rule where Mich. 332 ; Railway Company v. Hutchins, the change was wrought in good faith and 32 Ohio St. 571 ; Lewis v. Courtright, 77 produced a great increase in the value of the la. 190. Forsyth v. Wells, 41 Pa. St. 291. property. Wetherbee v. Green, 22 Mich. TITLE BY OKIGINAL ACQUISITION. 485 as against a purchaser in good faith.^ This decision was put upon ' an assumed rule to the same effect in the Roman law.^ There is, however, no such settled rule in the Roman law, it being in that system a matter of great dispute. The New York court cites a passage from the Digest of Justinian (not the Institutes') to sus- tain its views. This, however, will be found to be but the opinion of a single jurist, while he is contradicted by other opinions of different jurists, cited in the same book, as is frequently the case in the Digests.^ The question thus being really open, it would well deserve consideration whether the exception made by the New York court is not wholly inconsistent with the general rule on which that court proceeded, for the test of ownership is, by the authoritative Roman law, whether the property can be restored to its original materials. Thus, Justinian says, " If the new species can be reduced to the materials of which it was made, it belongs to the owner of the materials ; if not, it belongs to the person who made it. For instance, a vessel can be melted down, and so reduced to the rude material -^ bronze or silver or gold — of which it is made ; but it is impossible to reconvert wine into grapes, oil into olives, or corn into sheaves, or even mead into the wine and honey of which it was compounded." * If tliis be the rule, good faith in making the change is an extraneous fact, and wholly immaterial. At all events, the rule concerning the requirement of good faith is not to be extended to an involuntary wrongdoer.-^ The subject of accession assumes great importance in the case of a wrongful despoiling of the United States government by cutting timber from its lands. There is to some extent an clement of pub- lic policy in the case, as the government has no adequate defence against the spoliator. Should the government sue for the value of the timber thus removed, it would be entitled to recover from a wilful wrongdoer the full value of the property at the time and place of making its demand or bringing the action, with no deduc- 1 Silsbury v. McCoon, 3 N. Y. 379, it is immaterial whether the chanofe was reversing the same case in 4 Den. 332. made bona fide ov mala fide, § 271. Nearly ^ Id. p. 387. all the passages from the Digests show that 8 Digests 10, 4, 12, 3, bj' Paulns. See the former owner has an action against the Moyle's Institutes, Vol. I. At the top of wrongdoer for the value of the goods taken, page 193 he says, "It has been much dis- — a so-called action of "condition." This puted whether bona fides (good faith) is is not on the ground of ownership, but by essential to acquisition hj spccificntio {a.c.ces- force of the rule in that system of law that sion). The passages bearing upon this point no one " can increase his wealth by despoil- are Digests 13, 1, 13; ib. 14, 3; 10, 4, ing another." 12, 3 (the only one cited by the New York * Institutes (Mo3de's ed.), Yol. 2, Book Court of Appeals), 41, 20 ; 47, 2, 52, 14." II. Tit. T. § 25. It is stated in Mackeldey's Roman Law ^ Hyde v. Cookson, 21 Barb. 92. (Dropsie's ed. ) that in the case in question 48 G THE LAW OF PERSONAL PROPERTY. tion for his labor or expenses. So if one should purchase inno- cently from such a wrongdoer, he would be liable for the value at the time of the pui'chase. On the other hand, if the trespass were mistaken or unintentional, the value at the time of the conversion would be taken, with suitable deductions for any increment of value made by the involuntary wrongdoer.^ DIVISION V. — Title hy Confusion. This subject is derived from the Roman law, and embraces both the intermingling of solids and tiuids ; the former is called commixtio ; the latter, confusio. In that system it is very closely allied to accession, for when a new product is made by the pour- ing together of fluids it is called by the same name {specijicatio'). The effect of confusion upon ownership is quite different in that svstem from that which prevails in the English law, since in the Roman law the title of the whole passes to the confuser, while in the English law the opposite result is reached. Confusion, as understood in English and American law, Is the. wilful ^aadfraudu- lent intermixture of the chattels of one persoii with the chattels of another, without the consent of the latter, in such a way that they cannot be separated and distinguished. ' Under this definition (1) the confusion must be wilful or inten- tional. If by accident, or by the unauthorized act of a third per- son, goods of A. and B. become intermingled so that they cannot be separated, the rights of the parties will be equitably adjusted, by treating them as tenants in common, having rights proportion- ate to their respective interests, as they originally stood. (2) The intermingling must be against the consent of the owner.^ If made by mutual consent, the rule of joint owner- ship will in general be applicable. An instance is the case where grain belonging to different owners is stored by a ware- houseman and intermingled in one common mass w^ithout objec- tion by the owners.^ (3) The act of mixture must be in its nature fraudulent ; that is, there must be a bad intent, and some harm ensuing to the innocent party, (a) If A. should intentionally mix his goods with those of B. in such a manner that they could not be separated, yet if the amount belonging to each owner was known, and the 1 Wooden Ware Co. v. United States, » Dole v. Olmstead, 36 111. 150. To 106 U. S. 432, and cases cited. the same effect is Chandler v. De GratI, 2 Nowlen v. Colt, 6 Hill, 461. 25 Minn. 88. (a) Claliiu v. Continental Works, 85 Ga. 27. I TITLE BY ORIGINAL ACQUISITION. 487 quality was the same, there would be no legal fraud, and each owner might share in common. If, on the other hand, A.'s goods were of an inferior quality, or if the amount belonging to him was not known, the law might, for want of sufficient proof, give the whole compound subject-matter to the innocent party. ^ (4) The goods must be incapable of separation so as to identify the original ownership. Thus, if A. should place his furniture in the same room with similar goods belonging to B., there would be no confusion if A. could identify his articles.^ (a) Where, however, the various elements of the definition combine, a case of confusion arises, and the wrongdoer suffers the loss of his goods, while the innocent party is under no obligation to render compensation. The wrongdoer, having caused the diffi- culty, must remove it by satisfactory evidence. The court cannot undertake to do it for him without such aid. The rule that one mixing his goods with those of another so that a separation is impossible, loses his ownership, is a doctrine that is adopted to prevent fraud. It is never resorted to except in favor of an innocent party as against a wrongdoer.^ It would seem that the strict law of confusion ought not to be applied wliere goods are intermingled by the negligence of one of the owners, without fraudulent intent.* A number of authorities bearing upon this subject are collected in a note.^ 1 Smith V. Sanborn, 6 Gray, 134 ; Davis general subject, see Stearns v. Herrick, V. Krum, 12 Mo. App. 279; Ryder v. 132 Mass. 114; Lehman v. Kellj^ 68 Hathaway, 21 Pick. 298. Ala. 192. The rule applies to matters of 2 Goff V. Brainerd, 58 Vt. 468 ; Smith account. Divers by v. Johnson, 93 III. V. Sanborn, supra. 547 ; Jewett v. Dringer, 30 N. J. Eq. 291. 3 Wooley V. Campbell, 8 Vroom, 163. This last case is highly illustrative. A 4 Pratt V. Bryant, 20 Vt. 333. junk dealer, by fraudulent collusion with 5 See Lupton v. White, 15 Ves. 432 ; the employees of a raihoad corporation. Hart V. Ten Eyck, 2 Johns. Ch. 62, 108 ; obtained a quantity of old iron, etc., at Beach v. Schmultz, 20 111. 185 ; Seavy v. much less than its actual weight and Dearborn, 19 N. H. 351 ; Robinson v. value. On delivery to him it was thrown Holt, 39 N. H. 557; Wilson v. Nason, indiscriminately on other heaps of old iron 4 Bosw. 155. The rule is applied to logs in a belonging to him, so as to be indistinguish- stream marked in the same way as another's able. It was held on appeal that the logs, with which they are intermingled, whole mass must be forfeited to the rail- Dillingham v. Smith, 30 Me. 370 ; road company, as it was an instance of Stephenson v. Little, 10 Mich. 433; Jen- confusion. The "Idaho," 93 U. S. 575, kins V. Steanka, 19 Wis. 139. On the 586, and cases cited. (a) Queen v. Wernwag, 97 K. C. 383. 488 THE LAW OF PEESONAL PKOPEKTY. DIVISION VL — ■ Title to incorporeal Things hy mental Action^ including the Appropriation of Trademarks. Under this general head may be ranked the following topics : Section I. Title to literary property, including letters, and, by analogy, pictures, statues, oral lectures, etc. Section II. Title to the products of invention or discovery. Section III. Title to trademarks by appropriation. These different modes of acquisition will each be separately considered ; first, with refer- ence to the rules at common law, and secondly, with reference to those created by statute. Section I. Title to Literary Property. — I. At common law. — (1) Literary compositions in general. — Plays. — The right of an author to his literary works may fairly be rested upon intellectual labor. In that point of view it is as complete as that of a mechanic who, by reason of skill, has constructed a watch, or some implement by muscular labor. If an author's work be published by another, without his consent, express or implied, the publication is an encroachment upon his exclusive ownership. To protect his right from invasion, he is entitled to the usual remedies in the case of a violation of a right of prop- erty, — e.g., an injunction.^ There is no reason why damages should not be recovered in an action at law. Remedies may be sought in the United States courts as well as in a State court.^ So an unpublished play cannot be acted on the stage without the owner's consent. It should be added that while literary property is in this state or condition it may be sold. A distinction would thus arise between an author and a mere pro- prietor. An alien may own the property and sell as well as a citizen. If the former should sell to a citizen, while the latter would be a proprietor, he would, under the existing United States laws, have no right to a copyright, as he would be in no better position than the alien author. Still, either of them, as long as the production remained unpublished, would have an ownership which would be protected by the courts.^ (a) The case of an unpublished play demands special attention as 1 Little V. Hall, 18 How. U. S. 165; 2 u. g. Rev. St. §§ 4967-4970. Bartlette v. Crittenden, 4 McLean, 300 ; ^ Keene v. Wheatley, 9 Am, Law Reg. Bartlette v. Crittenden, 5 Id. 32. 33. (ff ) See cli. 565, Laws of 1891 ; 26 U. S. tween citizens and aliens in certain cases, Stat. L. 1106, amendatory of former provi- post, p. 495. sions, and abolishing the distinction be- TITLE BY ORIGINAL ACQUISITION. 489 it has often been before the courts. It was well settled that the right of authors, exclusive, of copyright, existed at common law, and that the State courts have jurisdiction to protect them, as in the case of other common-law rights or property interests.^ 'Prop- erty in a literary product is not distinguishable from other personal property. It may be sold, and may pass by succession. It must at common law be as fully protected by the courts in the case of an alien as in that of a citizen. — ->—.^.«., ■ There is but one general way in which this right may be lost. This is by the dedication of the work by the author to the public. If it has been so dedicated, the work has become public property, and henceforward any one may use freely that which has thus been cast away. In this view, there must be an act of relinquishment by the owner analogous to an abandonment of his right of property in the case of ordinary chattels. In the special case of a play, a question may arise whether there has been " a dedication " by the act of placing it upon the stage, and causing it to be acted. The correct view is that the right publicly to represent a dramatic composition for profit, and the right to print and publish the same composition to the exclu- sion of others, are entirely distinct, and one may exist without the other. Dedication does not take place until the author does some unequivocal act, indicating an intent to make his work over to the public. An unqualified publication by printing and offering for sale is a complete dedication. The permission by the author to others to act the play at a public theatre is not a dedi- cation. The manuscript and the right of the author are still within the protection of the law, in the same manner as if they had never been communicated to the public in any form.^ There has been much difference of opinion upon a single point. This is, whether a spectator attending a representation could law- fully reproduce a copy of the play from memory, and then publicly act it for his own lienefit, without the consent of the owner. It is held by some authorities that he could, since the permission to attend the representation gave him the full right to memorize tlie play, together with the right to all the advantages that could be derived from remembrance. The better and later opinion is, that no right to represent the play can be obtained in this manner by a spectator.^ 1 Palmer v. De Witt, 47 N". Y. 532. Gray, 545 ; Boucicault v. Fox, 5 Blatch. 2 Palmer v. De Witt, 47 N. Y. 532, 87, 98. 542 ; Parton v. Prang, 3 Cliff. U. S. 537 ; ^ Keene v. Kimball, 16 Gray, 545, to Boucicault v. Hart, 13 Blatch. 47 ; Rees the contrary, is overruled by the later case ».Peltzer, 75111. 475 ; Macklin V. Richard- of Tompkins v. Halleck, 133 Mass. 32. son, Ambler, 694; Keene v. Kimball, 16 See also French y.Maguire, 55 How. Pr. 471. 490 THE LAW OF PERSONAL PROPERTY. If the owners of an unpublished opera should sanction the pub- lication of the libretto and vocal score with a piano accompani- ment, and retain the orchestration in manuscript, another person who had independently arranged a new orchestration could make use of the published matter in connection with his orchestration.^ The acts of the owners would amount, in this case, to a dedica- tion. Still, the publication of tlie songs and vocal score would not make the name public property.^ A State court has jurisdiction of an action to determine the rights of parties to an agreement to have and perform a play.^ It is immaterial in the matter of rights that a play is a joint production.* (2) Letters. These are protected, both on the ground that they are literary property, and also, in some cases, on the inde- pendent basis of the trust and confidence existing between the writer and the person addressed. A distinction may thus exist between the ownership of the paper vested in the receiver of the letter, and the title to the incorporeal subject-matter still remain- ing with the author. Each of these may pass by succession to the representatives of the respective parties. The rights of the parties are to some extent conflicting. The receiver of the letter is deemed to be the owner, and can bring an action against the writer to recover it back from him in case he gets it into his possession.^ Still, after a time, adverse possession -might ripen into a title by force of the Statute of Limitations.^ As a rule, whatever value the letters may have as autographs, be- longs to the receiver. On the other hand, the author, or his representatives, may have an injunction against the receiver, or his representatives, to prevent the publication of the letters.'' There is an exception in the case where publication is necessary to the vindication of character,^ provided that the letter is still in the receiver's possession.® If, however, a solicitor writes a letter, apparently on behalf of his client, he has no such property as to entitle him to prevent its publication.^^ The question has been much mooted whether the letters, to ob- tain protection, must be of a literary character. The view has been 1 Carte v. Ford, l.^i Fed. R. 439 ; Carte Hopkinson v. Burghley, L. K. 2 Ch. App. V, Duff, 23 P>latch. 347. 447. 2 Aronson v. Fleckenstein, 28 Fed. ^ First Troop Phila. Cavalry v. Morris, R. 75. See Carte v. Evans, 27 Fed. R. 10 Am. Law. Ee,fc. N. s. 272. 861. " Tliompson v. Stanhope, Ambler, 737. 3 Widmer v. Greene, 56 How. Pr. 91. « Perceval v. Pliipps, 2 Ves. & B. 19. * French v. Maguire, 55 How. Pr. See Rice v. Williams, 32 Fed. R. 437. 471. 9 Gee v. Pritchard, 2 Swanst. 402. ° Oliver v. Oliver, 11 C. B. N. s. 139 ; w Howard v. Gunn, 32 Beav. 462. TITLE BY ORIGINAL ACQUISITION. 491 reached in some cases that they must be, otherwise no injunction will be granted. 1 Such a rule imposes upon a court the duty of determining whether letters, are in fact, literary, — a duty which an ordinary judge is scarcely capable of discharging. The better opinion is, that there is no such rule, and that the writer of any letter has a property in it, which the proper court has jurisdiction to protect.^ (3) Pictures and statues. Similar principles must be applied to pictures and statues. Whatever is original, and capable of legal protection, will be protected, — such as the design or group- ing of figures. The right will not be lost by exhibiting a picture with a view to obtain subscribers for an engraving. This rule was applied to a case where a frequent visitor to an exhibition of paintings had so impressed upon his memory the arrange- ment of the figures that he could, and did, reproduce some of them from memory, so as to make a copy with the aid of a stereoscope.'^ A. like rule was applied to etchings made by Queen Victoria and Prince Albert for their own amusement, and exhibited to acquaintances or friends. The act of exhibition did not destroy their title, nor prevent a court of equity from granting an injunction to prevent publication.* This case decided that the right of property of an author enabled him to withhold his work altogether from the knowledge of others. (4) Miscellaneous cases. There are many cases which have been recognized as matters of literary property, although not strictly cases of authorship. A translator has a title to his particular translation of a work, not itself protected therefrom by copyright, though he cannot prevent others from making translations.^ Annotations upon the loorJcs of other ivriters^ including additions, improvements, or cor- rections, are protected ; *" but the annotator docs not, by means of his notes, obtain any ownership in the work to which the annota- tions are made.^ Other instances are catalogues ; ^ monumental designs ; ^^ mar- ginal head notes of law cases, prepared by a law reporter for a law magazine ; ^^ musical compositions ; ^^ and maps made from 1 Hoyt V. Mackenzie, 3 Barb. Ch. 320. ^ Black v. Murray, 9 Scotch Sess. Cas. 2 Woolsey v. Judd, 4 Duer, 379; Pope (3d series), 341. V. Curl, 2 Atk. 341. ' Gary v. Longman, 1 East, 358. 3 Turner v. Eobinson, 10 Ir. Ch. R. » Cary v. Faden, 5 Ves. 24 ; Barfield v. 121; on appeal. Id. 510. This was the Nicholson, 2 Sim. & S. 1. well known picture of The Dying Hours 9 Hotten v. Arthur, 1 H. & M. 603. of Chatterton. i^ Grace v. Newman, L. R. 19 Eq. 623. * Prince Albert v. Strange, 1 MacNagh- " Sweet v. Benning, 16 C. B. 459. ten & G. 25. i- Bach v. Longman, Cowp. 623 ; Piatt 5 Wyatt V. Barnard, 3 Ves. & B. 77. v. Button, 19 Yes. 447. 492 THE LAW OF PEKSONAL PROPERTY. original sources. Accordingly, no property can be obtained in a coi^y of an existing map made by another, though it has been said that such latter map may be used as a means of correcting the new work.^ (5) It remains to notice specially the case of breach of trust or confidence, etc. This case is illustrated by the delivery of oral lectures by a professor to his class, or by confidential letters, the intrusting of medical recipes to a clerk, etc. There is, in each of these, an element of confidence which justifies a court of equity in protecting by an injunction the rights of the party repos- ing the confidence. The right to protect oral lectures is illustrated by the case of the lectures of Dr. Abernethy.^ It was held that as these were delivered to a class of persons, even though they were taken down by the hearers, there was no authority to publish them. This view rested both on the ground of an implied contract or trust, and on the further proposition that no one who attended could transfer to a third person the right to publish; for the latter would also be bound by the implied contract not to print, etc. It was further said by the court that there was nothing in the relation which Dr. Abernethy held as lecturer in St. Bartholomew Hospital (where the lectures were delivered) which would pre- clude the plaintiff from having a property in the lectures, without some evidence to show that he ought not, under all the circum- stances of the case, to be regarded as owner. This question was not fully settled by the decisions in favor of Dr. Abernethy, and was only finally disposed of in the English courts in 1887. The rule was then laid down that a professor in a university who delivers orally in his class-room lectures which are his own literary composition does not communicate such lec- tures to the whole woi-ld, so as to entitle any one to republish them without the permission of the author. The principle was applied to the case of a professor in a Scottish university, delivering lec- tures as a part of his ordinary course to students who were admitted on payment of the prescribed fees.^ On similar grounds it has been decided in this country that where one permitted pupils to take copies of his manuscripts for the purpose of instructing themselves and others, he did not thereby abandon the manuscripts to the public.^ Another in- stance of trust and confidence is that of confidential letters. The publication will be enjoined on the special ground of breach 1 Kelly V. Morris, L. B. 1 Eq. 697. ^ Caird v. Sime, L. R. 12 App. Cas. 2 Abernethy v. Hutchinson, 3 L. J. H. of L. Sc. 326 (1887). (Ch.) 209 ; s. c. 1 Hall & Twells, 28. ^ Bartlettey.Crittenden,4 McLean, 300. TITLE BY ORIGINAL ACQUISITION. 493 of trust.i A similar rule was applied to medical recipes intrusted by one who compounded them as proprietor to a clerk.^ (a) The laws of Congress carry out the general principles considered in this section by giving an action to the proprietor of any manu- script printed without his consent, provided he be a citizen of the United States or a resident therein.-^ (J) The title to literary property, as has been seen, may be lost by abandonment or dedication. This takes place where the work is published without compliance with the copyright laws. Under such circumstances the publication of the work so abandoned is freely open to all. It may be added that no legal protection will be given to works of a libellous or immoral tendency. There can be no property in such a work, wdiether copyrighted or not;"* nor will a work based 1 Earl of Granard v. Dunkin, IBall & B. 207. 2 Yovatt V. Winyard, 1 J. & W. 394 ; Green v. Folghani, 1 Sim. & S. 398. 3 Laws of 1870, ch. 230, § 102 ; U. S. Rev. St. § 4967. * Stockdale v. Onwhyn, 5 B. & C. 173 ; Southey v. Sherwood, 2 Mer. 435. There is not a great deal of adjudication upon the point whether immorality in a liter- ary work takes away all right of prop- erty. There are two modes in which the question has been presented : one, in an action or suit for an injunction in equity ; the other, in an action at law for dam- ages. The latter j)roceeding would most distinctly test the matter of oionership. The first judicial remark upon this subject appears to have been made by Eyre, C. J., in a case where the celebrated Dr. Priestley brought an action against "the hundred" (a political district) for riotous proceedings of a mob in which a part of the property alleged to have been destroyed consisted of unpublished manuscripts. It was urged by the defence that Dr. Priestley was in the habit of publishings work injurious to the government. The Chief Justice said that evidence of this kind was fit to («) A photographer may be restrained from selling or exhibiting photographs of his customers without their consent. Pol- lard V. Photographic Companv, L. R. 40 Ch. D. 345 ; cf. Corliss v. E. "w. Walker Co., 57 Fed. R. 434 ; Schuyler v. Curtis, 64 Hnn, 594. {b) See § 9 of ch. 565 of the Laws of be offered to defeat a recovery. Though tins lemark was but a dictum, it subse- quently ripened into decision. (See argu- ment of Lord Brougham in Stockdale v. Onwhyn, supra, pp. 173, 174, and of Sir Samuel Romilly, in Southey v. Sher- wood, supra, p. 437.) In Stockdale v. Onwhyn the point was directly decided in a common-law action that there could be 710 property in an immoral work professing to be an account of the amours of a cour- tesan. In this case the book had been copy- riglited, and the action was brought for damages for publishing a pirated edition. This view is confirmed by Poplett v. Stock- dale, Ry. & M. 337 ; Wright v. Tallis, infra, — a case of fraudulent representa- tion, — went upon the same ground. The equity view is found in the case of Southey V. Sherwood. In this case the poet Southey had lent the manuscript of " Wat Tyler" (as yet unpublished), but had made no assigmnent of it. The defendant pub- lished, without his consent. An injunc- tion was refused. The court intimated an opinion that an immoral book could not be protected by an injunction, referring to the prior case of Walcot v. Walker, 7 Ves. 1. 1891 (26 U. S. Stat. L. 1106), abolishing the requirement that the author or pro- prietor must be a citizen or resident of the United States, and giving to aliens the same protection as to our own citizens under certain conditions, as to which see §13. 494 THE LAAV OF PERSONAL PROPERTY. upon fraud {erinienfahi) be the subject of legal ownership.^ This last j)roposition does not extend to cases where, though a work may be written under a fictitious name, there is no serious design to deceive, or to make gain and profit by a false representation.^ One may fail to obtain a right of property in a literary work pro- duced by himself, on the ground that its production was a part of his duty in an employment by the public or State. Thus, where a voyage of discovery had been made, and a narrative of it prepared under the orders of the British government, it was held that the author of the narrative had no property in it.^ This would espe- cially be the case if there were an understanding between him and the government that the sketches were to be public property.* The remedies when the right of pi'operty in an unpublished book is violated are three-fold : first, an action at common law ; secondly, a suit in equity for an injunction founded on the com- 7no7i-law right; thirdly, a suit in equity, where the piracy has been accompanied by circumstances of fraud or breach of trust, confidence, or contract, express or implied.^ II. Literary property as protected by statute, or copyright. — The term " copyright " strictly means such statutory protection as is given to authors, etc., in general securing them the right to the exclusive sale of their productions after publication, though in the case of plays, granting the exclusive right to represent them on the stage as well. It is sometimes used as meaning the right of ownership prior to publication. It is used in the present dis- cussion in the former sense. (1) Theory and nature of copyright. — While it is now con- ceded that an author has a common-law right of property in his work while unpublished, yet it is held by the court that publica- tion is, in its own nature, a dedication of the work to the public. The thoughts and forms of expression are now the common property of all mankind, like air and sunlight. Accordingly, it needs the intervention of statute law to repel this presumption of dedication, and to give the author an exclusive right to multiply copies and to sell them. Statutes of this kind give the author an exclusive right to mul- tiply and sell copies for a prescribed time, whereupon the work becomes common property. This rule, in the great mass of cases, furnishes adequate protection, as the time designated in the stat- ute is usually sufficiently long to have introduced the work, if ^ Wright V. Tallis, 1 C. B. 893. Heine v. Appleton, 4 Blatch. 125. 2 Per TiNDAL, C. J., 1 C. B. 906. ^ Turners. Robinson, 10 Irish Chan. R. 3 Nicol V. Stockdale, 3 Swanst. 687; 121,131, 132. Com. V. Desilver, 3 Phil, (Pa.) 31. TITLE BY OKIGIXAL ACQUISITION. 495 intrinsically valuable, into general use, and to embrace a large part of the sales. In the case of plays, the copyright law goes further, and pro- tects the exclusive right of public representation upon the stage. ^ A similar right exists under the terms of English statutes.^ Before these statutes, it was held that a proprietor of a copyright could maintain no action against one who acted his play on the stage. ^ By a statute cited in the note'* an exclusive riglit to the performance of published musical compositions is given in Eng- iand.5 Tliis last-named right is even more extensive than that attached to dramatic compositions.^ A copyright is incorporeal property. It cannot be sold on an execution." Accordingly, if a map were engraved on a copper- plate, and the latter were sold on an execution, the purchaser would acquire no right to multiply copies of the map. The copy- right can only be reached by a creditor througli the medium of a court of equity making a proper order under all the circumstances of the case. (2) Who may take a copyright under the United States laws. — An applicant for a copyright must be a citizen of the United States or resident therein. Non-resident foreigners are excluded. The language of the statute is, " Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book," etc. The executors, administrators, or assigns of any such person are also included.^ (a) 1 U. S. Rev. Stats. §§ 4952 and 4966, The owner of the copyright may recover as damages for the violation of his right not less than $100 for the first perform- ance, and not less than §50 for every subsequent performance. 2 3 & 4 Wm. IV. c. 15, and 5 & 6 Vict. c. 45, § 20. 3 Murray v. Elliston, 5 B. & Aid. 657. * 5 & 6 Vict. c. 45, § 20. See also 45 & 46 Vict. c. 40, and 51 & 52 Vict. c. 17. s See ex parte Hutchins, L. E. 4 Q. B. D. 483. 6 Russell V. Smith, 15 Sim. 181. 7 Stephens v. Cady, 14 How. U. S. 528 ; see also Stevens v. Gladding, 17 Id. 447. 8 U. S. Rev. Stats. § 4952. (a) See ch. 565, Laws of 1891, U. S. Stat. L § 1106, amending 4952, 4954, 4956, 4958, 4959, 4963, 4964, 4965, and 4987, and repealing § 4971 of the Revised Statutes of the United States. By this enactment the privileges of copyright are extended to citizens and subjects of any foreign state or nation when such foreign state or nation permits to citizens of the United States the benefit of copyright on substantially the same basis as its own citizens, or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright to which, by the terms thereof, the United States may at its pleasure become a party. The existence of either condition is to be determined by the President of the United States by proclamation made from time to time. The act also provides that in the case of a book, photograph, chromo, or litho- graph the two copies required by law to be delivered or deposited shall be printed from type set within the limits of the United States, or from plates made therefrom, or from negatives, or drawings on stone made within the limits of the United States, 496 THE LAW OF PEKSONAL PROPEKTY. (3) The subject of a eopyriglit, and the laws under which it is granted. — Under the United States Constitution, Congress has the power to grant copyrights and patents. ^ The language is, " Congress siiall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." There is no doubt but that the whole power over this subject is vested in Congress exclusive of the States, both from the terms employed and the nature of the grant, and it has been so decided. In other words, there is an implied prohibition of action by the States in respect to a subject which would other- wise be vested in them. The subject of cojjyrights had been before the English courts before the United States Constitution was adopted. The consti- tutional provision was, no doubt, adopted in view of the legisla- tion then existing in England. It will be pertinent to cite the English decisions upon the subject of copyrights, as illustrative of the cases embraced under American law. The subjects embraced in the United States copyright law are, any book, map, chart, dramatic or musical composition, engrav- ing, cut, print, or photograph or negative thereof, or any painting, drawing, chromo, statue, statuary, and models or designs intended to be perfected as works of the fine arts.^ The protection given by law is intended for a work already composed and not yet published. There can, accordingly, be no copyright in a prospective and uncomposed series of numbers of a newspaper, though the right may attach on each successive publication.^ The word " book " in the statute is of great consequence, and admits of much decision as to its true interpretation. Under the terms of the law there must be both authorship and a hook. The word " book " has a wide meaning in English decisions. It is much broader in its signification than in ordinary cases, and em- braces an article in a magazine, a portion of a serial story, as well as the whole ; *■ an article in an encyclopaedia ; corrections 1 Art. I. § 8, cl. 8. 8 Piatt v. Walter, 17 L. T. N. s. 157. 2 U. S. Rev. Stats. § 4952. * Low v. Ward, L. R. 6 Eq. 415. or from transfers made therefrom. During made within the limits of the United the existence of such copyright the impor- States, is prohibited, except in certain tation into the United States of any hook, specified cases. chromo, lithograph, or photograph so copy- For English legislation upon the sub- righted, or any edition or editions thereof, ject of "International copyright," see 7 & or any plates of the same not made from 8 Vict. c. 12 ; 15 & 16 Vict. c. 12 ; 38 type set, negatives, or drawings on stone & 39 Vict. c. 12 ; and 49 & 50 Vict. c. 83. TITLE BY ORIGINAL ACQUISITION. 497 and additions to the work of another ; ^ an East India calendar or directory ; 2 a translation ; ^ an illustrated catalogue ; ^ and has even been extended to an advertising catalogue.^ (a) Similar results have been reached in this country. It is held that a " book " is not necessarily a volume made up of many sheets bound together ; it may be printed only on one sheet. The test is not the size, form, or shape, but the subject-matter.^ Under this rule there may be a copyright of an " abstract of title " to land ;" also of tlie plan of a book as connected with the arrangement and combination of the materials, though the ma- terials may be common to other writers.^ There may be a copy- right in the head-notes prepared by a law reporter,^ (b) but not where the judges themselves prepare them.^'^ (c) A copyright may be taken for additions to a work already copyrighted, without giving notice of the existing copyright.^^ There may be a copyright in a compilation from original sources ; and if two or more persons make distinct compilations in this manner, eacli may have a copy- right ; ^2 it may also be had for a fair abridgment.^^ There can, however, be no copyright in a " general subject," — as, for example, in a chart or map as a general subject ; liut only in a particular person's mode of treating the subject. Any other person may make a map from the original sources.^* No copy- right can be acquired in a label for merchandise,^^ (f?) nor in a mere adaptation of a musical composition copyrighted by another, even though a new name be given to it ; ^^ (e) nor in a mere newspaper 1 Cary v. Longman, 1 East, 358. 8 Greene v. Biship, 1 Cliff. 186 ; Gray 2 Mathevvson v. Stockdale, 12 Ves. 270. r. Russell, 1 Story, 11 ; Emerson v. Davies, 3 Wyatt V. Barnard, 3 V. & B. 77. 3 Id. 768. * Maple &Co. v. Junior A. & N. Stores, 9 ilyers v. Callaghan, 10 Biss. 139 ; L. R. 21 Ch. D. 369. This case over- s. c. 20 Fed. E. 441. ruled an earlier case holding that there is i» Chase v. Sanborn, 4 Cliff. 306. no copyright in a descriptive catalogue. " Lawrence t\ Dana, 4 Cliff. 1. Cobhett V. AVoodward, L. R. 14 Eq. 407. 12 Bullinger v. Mackej', 15 Blatch. 550. 5 Grace v. Newman, L. R. 19 Eq. 623. i^ Folsom v. Marsh, 2" Story, 100. 6 Clayton v. Stone, 2 Paine, Cir. Ct. " Blunt v. Patten, 2 Paine, 397. 882 ; Drury v. Ewing, 1 Bond. 540, —case 1^ Coffeen v. Brunton, 4 McLean, 516. of diagrams on one sheet. is Jollie v. Jaques, 1 Blatch. 618. '' Banker v. Caldwell, 3 Minn. 94. (a) The headings in a trades directory Palmer, 6 Blatch. 256 ; Daly v. Webster, are the subject of copyright under 5 & 56 Fed. R. 483. A stage dance, consist- 6 "Vict. c. 45, though the body of the ing of a series of graceful movements, corn- work consist of advertisements. Lamb v. bined with an attractive arrangement of Evans [1892], 3 Ch. 462. drapery, lights, and shadows, but which (b) Callaghan u. Myers, 128 U. S. 617. tells no story, represents no particular (0) Banks r. Manchester, 128 U. S.244. thought or emotion, and portraj's no char- (d) Higgins v. Keuffel, 140 U. S. 428. acter, is not a "dramatic composition" (c) A written play consisting of direc- within the meaning of the copyright act. tions for its representation in pantomime Fuller v. Bemis, 50 Fed. R. 926. is a "dramatic composition," Daly v. 32 498 THE LAW OF PERSONAL PROPERTY. or price-current.^ Nor is the method of advertising the subject of copyright ; ^ nor a title to a book.^ At all events, there is no copyright in a title which seeks to appropriate the virtues, such as " Charity," " Faith," and the like.* The correct view seems to be that the ground on which a title to a book can be protected by the courts is, that it may aid the owner in making sales and consequent profits, so that the right is analogous to that of a trade-mark. It is settled in the English courts that if the owner of a publication claims an injunction to restrain the issue of another publication of a similar name, he must show not only that the assumption of the name by the defendant is calculated to deceive the public, but also that there is a probability of the plaintiff being injured by such deception.^ Another form of statement is, that the claim to the title of the paper depends upon user and reputation. On this principle an injunction was refused where the plaintiff's paper had only been published for three days, with a very small sale.^ Another inquiry now to be taken up is the meaning of the word " author." It is the author or proprietor that is to have the copyright. Some light is shed upon the meaning of this word by the observation that the word is found in the Constitution as well as in. the laws of Congress, In the Constitution it is coupled with 1 Clayton v. Stone, 2 Paine, C. Ct. 382. 2 Ehvet V. Pierce, 18 Blatch. 302. 3 Osgood V. Allen, 1 Holmes, 185. * Isaacs V. Daly, 39 N. Y. Super. Ct. 511. The question whether there can be a copyright in the "title" of a book, is a vexed one. It is held in Shook v. Wood, 10 Phil. (Pa.) 373, that a party will, in case of an intention to deceive, be enjoined from using the title of a dramatic compo- sition which has been copyrighted, even though the body of the play intended to bo presented under that title may be en- tirely different from the copyrighted play. In England the question is not settled. In Dicks V. Yates, L. R. 18 Ch. D. 76 (1881), it was said by James, L. J., and Jessel, M. E., that there cannot, in general, be any copyright in the title or name of a book. The case did not, however, call for a decision of the point. It was said in the same case that some decisions, appar- ently holding that there could be a copy- right in a title, were really cases of common-law fraud, such as Metzler t». Wood, L. R. 8 Ch. D, 606, and Weldon V. Dicks, L. R. 10 Ch, D. 247. It ap- pears to be settled by these decisions that if one has published a book and copy- righted it nnder a name, and another pub- lishes another work under the same name, selling it as though it were the hook first copyrighted, a fraud is committed by the false representation, without reference to copyright. Mack v. Petter, L. R. 14 Eq, 431, seems to rest on this principle, as well as Kelly v. Byles, L. R. 13 Ch. D. 682, 692. There is as yet no authoritative decision that a title considered in and by itself, and without any fraud, can be copyrighted. Certainly a hackneyed phrase like " Splen- did Misery " cannot be. Dicks v. Yates, L. R, 18 Ch. D. 76, On the whole, it would seem that those judges who appear to suppose that the title of a book is in and by itself a subject of copyright, have been led away by the false analogy of a " trade-mark," to which a copyright bears no real resemblance. 5 Borthwick v. Evening Post, L. R. 37 Ch. D. 449. ^ Licensed Victuallers Newspaper Co. V. Bingham, L. R. 38 Ch. D. 139. TITLE BY 0EI3INAL ACQUISITION. 499 a reason for the grant of power to Congress. The object of giv- ing an exclusive right to authors and inventors is to "promote the progress of science and useful arts." It is not every one who composes that is an author in the sense of the Constitution. His recognition as such must tend to " promote the progress of science and useful arts." A monopoly is granted, and there must be good reason for it. There must be in the right protected some element of public utility, and the party claiming it must be an author. In order to be an author there must, in general, be originality. Originality, not skill or merit, is the test whether a work is the subject of a copyright.^ Thus, a person cannot, in general, obtain a copyright for a method of communicating information by ques- tion and answer, that method being of unknown antiquity. This is particularly the case where the questions are in the simplest possible forms.2 There is a certain class of useful books, — e. g., dictionaries, — in which absolute originality is excluded from the nature of the case, which are still, by way of exception, the subject of copyright.^ It would seem that a mere work of industry, with a plan readily occurring to a person of ordinary intelligence, could not properly be regarded as a case of authorship under the United States Con- stitution.* There should be some intellectual skill. Still, the cases go very far in England and in this country. The question, however, is not the same there as here, as there is no constitu- tional direction or intimation in English law that the object of copyright is to promote " the progress of science and useful arts." There is as yet no authoritative exposition of this subject bv the Supreme Court of the United States, and the inquiry is fairly relevant whether the full scope of the Constitution has been sufficiently attended to in the decisions in the inferior courts. (4) The mode of acquiring a copyright. — As a copyright is the creature of statute, it is necessary for the claimant to comply with the statutory provisions made in his behalf ; otherwise, he will have no right. He will, by an assumed abandonment, have lost his property in his work existing before publication, and have acquired nothing under the statute. This rule is strictly enforced in England under the statute requiring " registration." ^ While compliance with that law may not be necessary to the legal existence of the copyright, it is requisite to perfect the right to sue.^ It is accordingly necessary 1 Per LiNDLEY, L. J., L. R. 21 Ch. * See Clayton v. Stone, 2 Taine, C. D. 380. Ct. 382. 2 Jarrold v. Houlston, 3 Kay & J. 708. & 5 & 6 Vict. c. 45. 3 Spiers v. Brnwn, 6 W. R. 352. 6 Qoubaud V.Wallace, 36 L. T.N. s. 704. 500 THE LAW OF PEESONAL PKOPERTY. to enter accurately the very day of first publication, i the name and place of abode of the publisher,^ and other details prescribed in the statute. There is no copyright unless the book has been actually published at the date of registration.^ A system prevails also by which false entries may be expunged by order of one of the Superior Courts on the application of a person aggrieved.* The acts to be done in this country are prescribed in the Revised Statutes of the United States.^ The primary step to be taken is before pubhcation to deliver at the office of the Librarian of Congress, or deposit in the mail properly addressed to him, a printed copy of the title of the book or other article to be copyrighted, or a description of the painting, drawing, statue, etc., or a model or design for a work of the fine arts, and within ten days after publication to deliver or deposit in the mail as before, two copies of the book or other article, or a photograph of the painting, drawing, statue, model, etc.^ The copies of the books are to be complete printed copies of the best edition. There must also be a copy of every subsequent edition wherein any substantial changes shall be made.^ There is a penalty of |25 for failure to deliver or deposit copies or photo- graphs as prescribed in the statute. It is also incumbent upon the owner of the copyright to insert on the title-page or next succeeding page of each book published, notice of the copyright, — e.g., " Copyright, 18—, by A. B.," ^ {a) and in the case of maps, drawings, statues, etc., to inscribe on the front or face thereof like words. Unless this provision is complied with, no action can be brought for infringement.^ In carrying out these directions, it has been held to be enough to print the surname and only the initial of the given name of the proprietor.!*' The delivery or deposit of copies required by § 4959 may be made after printing and before formal publication .ii The rules should receive a liberal construction.^^ A substantial failure 1 Mathieson v. Harrod, L. E. 7 Eq. ^ § 4959. 270. 8 Act of June 18, 1874, 18 St. L. 78. 2 Low V. Routledge, 10 Jur. n. s. 922, See also U. S. Kev. Stats. § 4962. 3 Henderson v. Maxwell, L. R. 5 Ch. D. » § 4962. 892. ^"^ Burrow, &c. Litli. Co. v. Sarony, 111 4 Ex parte Davidson, 2 E. & B. 577; U. S. .53, —case of photographs. see also 18 C. B. 297 ; Graves' Case, L. R. " Chapman v. Ferry, 18 Fed. R. 539. 4 Q. B. 715. ^^ Myers v. Callaghan, 10 Biss. 139. 5 §§ 4956, 4959, and 4962. See Donnelley v. Ivers, 20 Blatch. 381. 6 § 4956. [a) It would seem to be sufficient if 617 ; Falk v. Schumacher, 48 Fed. R. this statute were substantially complied 222; Hefel r. Whitely Land Co., 54 Fed. with. Callaghan v. Myers, 128 U. S. R. 179. TITLE BY ORIGINAL ACQUISITION. 501 to comply with the statute is fatal — e. g.^ a failure to deliver the two copies within ten days after publication.^ (5) Term of copyright, and renewal. — The author or proprietor, on complying with the law, is entitled to a copyright for the term of twenty-eight years. The copyright may, under special circum- stances, be renewed for the further term of fourteen years. If, at the expiration of the first named period, the author be living, the copyright belongs to him ; if he be dead, it belongs to his widow or children.^ The language of this section does not extend to a pro- prietor as distinguished from an author. The title of the work must be recorded a second time, and the other requirements applicable to the original right, complied with. This must be done within six months before the expiration of the first term. Within two months from the date of the renewal, a copy of the "record " must be published for four weeks in one or more news- papers printed in the United States. (6) Assignment. — This may be considered under two aspects : 1. Assignment before copyright of the author's proprietary inter- est. 2. Assignment of the copyright itself. 1. A manuscript, unpublished, being an item of property, is in its own nature susceptible of transfer or assignment. Such a trans- fer may be total or partial, or may create a lien in the assignee's favor. So it may be to two or more persons to hold jointly or in common. This proprietary right is a sufficient basis for a copy- right. So one may hold it in trust for another who is a benefi- ciary under him. Contracts between authors and others, particularly publishers, assume a great variety of forms, and many questions arise under them. An agreement with a publisher to publish an edition and to pay a royalty on copies sold, does not imply that he is to have the publication of a later edition.^ There is a distinction between an assignment of the author's right and a license to publish. In the latter case no title passes to the licensee.^ An author may by apt words so bind himself as to a particular edition that he can print no more on his own account until that edition is exhausted. This would amount to a partial assignment.^ Agreements between authors, on the one hand, to prepare a work, and to make addi- tions and corrections for later editions ; and of publishers, on the other hand, to print, reprint, and publish, and to divide the profits, 1 Merrell v. Tice, 104 U. S. 557 ; Park- 2 u. S. Rev. Stats. § 4954. inson v. Laselle, 3 Sawy. 330. Consult ^ Warne v. Routledge, L. R. 18 Eq. 497. also Wheaton v. Peters, 8 Pet. 591 ; Ewer * Reade v. Beiitley, 3 Kay & J. 271. V. Coxa, 4 Wash. 487 ; Jollie v. Jaiiues, 1 5 Sweet v. Cater, 11 Sim. 572. Blatch. 618 ; Baker v. Taylor, 2 Id. 82. 502 THE LAW OF PERSONAL PROPERTY. — are contracts of a personal nature, and not assignable by either party without the other's consent.^ Similar rules are applied where the contracting firm of publishers has been succeeded in its busi- ness by others.2 An out and out purchase of a manuscript by a publisher has been thought in one case to give the purchaser a right to alter or deal with it as he may think proper.^ 2, An assignment of a copyright, under English and American statutes, must be in writing.* It is also said that there cannot be a partial assignment of a copyright.^ (a) There may be an agreement to assign which will not be a legal assignment, but will be recognized in a court of equity.^ Such an agreement will not so operate as necessarily to make a subsequent assignment by the author inoperative^ Under the laws of the United States an assignment may be made by any instrument in writing, and recorded in the office of the Librarian of Congress within sixty days after its execution ; if not recorded, it will be void as against a subsequent purchaser or mortgagee for a valuable consideration, without notice.^ (7) Lifringement. — The first question that may arise as to an infringement is as to the title. It has already been stated that there is much doubt whether a copyright extends to the title .^ Still, if the title is embraced within the protection of the law, there must be, in order to constitute an infringement, a similarity, or colorable imitation of the title. Accordingly, where the title of the copyright was " Why and Because," and the title com- plained of was " The Reason Why," it was held that there was no infringement.^^ On the other hand, the title " The Birthday Scripture Text-Book," was thought to be infringed upon by the expression, " The Children's Birthday Text-Book." ^^ Moreover, if the title contained expressions in common use, — e.g., "post office," — these could not be copyrighted.^^ It may be added that 1 Stevens v. Benning, 6 De G. M. & G. ^ Weldon v. Dicks, L. R. 10 Ch. D. 223 ; s. c. 1 Kay & J. 168. 247 ; Dicks v. Yates, L. R. 18 Ch. D. 76. 2 Hole V. Bradbury, L. R. 12 Ch. D. lO Jarrold v. Houlston, 8 Jur. N. s. 1051. 886, " Mack v. Fetter, L. R. 14 Eq. 431. 3 Cox V. Cox, 11 Hare, 118. See also Metzler i;. Wood, L. R. 8 Ch. D. * Leyland v. Stewart, L. R. 4 Ch. D. 606. 419 ; U. S. Rev. Stats. § 4955. 12 Kelly v. Byles, L. R. 13 Ch. D. 682. 5 Jefferys v. Boosey, 4 H. L. Cas. 815. The title in this case was "Post Office 6 Sims r. Marryatt, 17 Q. B. 281. Directory." The defendants were not re- ' Leader v. Purday, 7 C. B. 4. strained from using these words as part of 8 U. S. Rev. Stats. § 4955. their directory. (a) An undivided interi^st in a copy- Black v. Henry G. Allen Co., 42 Fed. R. right has been held to be assignable. 618 ; s. c. 56 Id. 764. TITLE BY ORIGINAL ACQUISITION. 503 the same general defects would defeat a copyright in the title as in the case of the book itself, such as fraud in statement.^ There is nothing analogous to copyright in the name of a newspaper ; still, it may be protected on other grounds, — e. g., trade-mark, good-will, etc.^ Infringement as to subject-matter is the more important ques- tion. Generally speaking, to constitute an " infringement " there must be a transcript of the copyrighted work, or a republication of it with only colorable variations, with no independent literary labor. Infringement may exist without complete reproduction of the copyrighted work ; partial imitation may be actionable. Ac- cordingly, it may consist in quotation. It is plain that a " quota- tion" may be so extensive as to constitute an infringement. The result of the publication of the quotation is to be regarded, and the inquiry is to be made whether its effect is to injure or super- sede tlie sale of the original work.^ It will not aid the infringer to state that the matter complained of is quoted. Such a state- ment might relieve the writer from dishonest plagiarism, but not from legal liability.* Fraud is not an essential element in an infringement case. The real question is, has a right of property been invaded in some material respect.^ Some special rules may be stated as to those writers who derive their information from special sources, such as authors of encyclo- paedias and the like. Any other person may go to the original sources, though he must not take his material from the copy- righted work itself.^ It has even been held that the latter may be resorted to for the purpose of obtaining referetices to the original sources of information.'^ Copies of a copyrighted book cannot be multiplied by an un- authorized person, even though not printed, and distributed gratu- itously.^ It is immaterial that the copyrighted book was primarily intended as an advertisement, there being nothing in the matter of copyrighting which makes it turn upon the purpose to which the book is to be chiefly applied.^ However, it has been held that 1 Wright V. Tallis, 1 C. B. 893. 6 pike v. Nicholas, L. R. 5 Ch. App. 2 Kelly V. Hiitton, L. R. 3 Ch. App. 251. 703. ■? Jarrold v. Houlstou, 3 Kay & J. 708 ; 3 Bramwell v. Halcomb, 3 M. & C. Morris v. Wright, L. R. 5 Ch. App. 279. 737 ; Scott v. Stanford, L. R. 3 Eq. 8 Novello v. Ludlow, 12 C. B. 177. 718. ^ Maple & Co. v. Junior A. & N. Stores, * Bohn I'. Bogue, 10 Jur. 420. L. R. 21 Ch. D. 369. Compare Hotten v. 5 Clement v. Maddick, 1 Giff. 98 ; Arthur, 1 H. & M. 603 ; Cobbett v. Wood- Perris v. Hexamer, 99 U. S. 674. It is ward, L. R. 14 Eij. 407, 414, opposed to a not material that the author wrote gratu- copyright in an adveitisement, is overruled itousl}', for the benefit of others. Lawrence by ilaple & Co. v. Junior A. & N. Stores, V. Dana, 4 Cliflf. 1. supra, p. 379. 504 THE LAW OF PERSONAL PROPERTY. an advertising card, devised for the purpose of displaying paints of various colors, is not the subject of copyright under the laws of the United States. ^ It will be convenient to state at this point some qualifications to the doctrine of infringement. 1. Some use of prior works is tolerated in such books as diction- aries, gazetteers, grammars, encyclopaedias, guide-books, etc., if the main design and execution are novel and iinproved, since the materials of such works, to a considerable extent, must be the same.^ 2. A fair abridgment of a work is declared by the courts not to be an infringement. To constitute a fair abridgment there must be real, substantial condensation of the materials, and not merely a collection of extracts, constituting the chief value of the original work. The abridgment must have originality, or it cannot, according to principle, be itself the subject of copyright, though, without originality, it might impair the value of the book to which it is applied.^ 3. A translation is not an infringement. The case now referred to is that of the translation of a copyrighted book put on sale in the same country in which the copyright exists. This rule was applied to the sale in the United States of an unauthorized trans- lation of Mrs. Stowe's novel, " Uncle Tom's Cabin." The theory of this rule is, that it is not the same work as the original, the language being different.* At the present time, the effect of this rule may be avoided under our statutes by reserving the right of translation.^ Any one may translate a book written in a foreign language, — e. g., Latin or Greek, — and obtain a copy- right in his translation, though another person might translate the same work and have a copyright in his translation.^ 4. Dramatization of a work — for example, a novel — is not of itself an infringements (a) This i-ule is not of much importance here, as the right to dramatize may be reserved by an author.^ The remedies for an infrlngevient are either a suit in equity for an injunction, or an action for penalties. 1 Ehret v. Pierce, 18 Blatch. 302. Holcombe, 4 McLean, 306. This subject 2 Webb V. Powers, 2 Woodb. & M. needs revision by the courts. 497^ 512. * Stowe v. Thomas, 2 WalL Jr. 547. » That an abridgment is not in prin- 5 XJ. S. Rev. Stats. § 4952. ciple an infringement seems doubtful, ^ Wyatt v. Barnard, 3 Ves. & B. 77. since the rule permits the abridger to ''' Reade v. Conquest, 30 L. J. (C. P.) make use of the plan and arrangement 209. See 11 C. B. N. s. 479 ; Toole v. of the principal work. The cases are, Young, L. R. 9 Q. B. 523. Folsora V. Marsh, 2 Story, 100 ; Story v. ^ U. S. Rev. Stats. § 4952. (a) Schlesinger v. Bedford, 63 L. T. n. s. 762. TITLE BY ORIGINAL ACQUISITION. 505 Injunctions in equity are referred to in the Revised Statutes.^ The jurisdiction is vested in the circuit courts, and district courts having the jurisdiction of circuit courts, according to the course and principles of courts of equity. It has been held that an injunction may, in some instances, be granted without proof of actual damage.^ Damages, as distinguished from profits, cannot be recovered in suits in equity for the infringement of copyright. In this respect the law of copyright differs from that of patents.^ Penalties and forfeitures are not enforceable in equity, in the absence of legislative authority. They must be proceeded for as penalties ; and the rules applicable to actions for penalties must be followed.* In eacli of tliese cases the claimant must show that the rules governing copyright have been substantially complied with.^ Penalties under the copyright statute are quite severe. The statutes should be consulted.^ Section II. Title to the Products of Invention and Discovery. — The origin of the American law of patents must be sought in English law. The Crown of England as a branch of the royal pre- rogative, has had from time immemorial the power to grant to individuals exclusive rights in the nature of monopolies, under a general rule that the king may exercise a control over the trade of the country. Such grants, as well as grants of land, etc., were made by instruments termed " letters patent." They were usually addressed to all the king's subjects, and were under the great seal. They were public or " open " letters, and were thus distinguished from grants addressed to particular persons, which were sealed on the outside, and called " close letters." The Crown exercised this power to a very prejudicial extent in creating monopolies. In the great case of Monopolies ' such an exercise was judicially declared to be illegal, though it was not denied that the Crown had power to grant, as a recompense for a new invention, the exclusive right to trade on it for a reasonable period. The exact time that would be regarded as reasonable was not fixed by the decision. It led to the enactment of the statute of the twenty-first year of King James I. (1623) c. 3, declaring 1 § 4970. Coke's Eep. 846 ; Noy's R. 173, under 2 Reed v. Holliday, 19 Fed. R. 32.5. name of Darcy v. Allin. In Noy's Report, 3 Chapman v. Ferry, 8 Sawy. C. Ct. the argument of counsel ag.iin.st the ma- 191. nopoly is given at much length. Though 4 1,1. quaint, it is manly and sound. The par- 5 Chicago Music Co. v. J. \V. Butler ticular case was that of an exclusive grant Co., 19 Fed. R. 758. to import, manufacture, and sell jilayiug- 6 U. S. Rev. Stats. §§ 4964-4966. cards. .See Caldwell v. Van Vlissengen, 9 ■f In the 44th year of Elizabeth, 11 Hare, 415, 427. 506 THE LAW OF PERSONAL PKOPEETY. monopolies in general to be void ; but at the same time except- ing " letters patent and grants of privilege for the term of four- teen years, or under, hereafter to be made of the sale, working, or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures which others at the time of making such letters patent and grants shall not use," etc. (§ 6.) It is further declared " that the same shall be of such force as they should be if this act had never been made, and of none other." It is well settled that this statute did not create, but controlled the power of the Crown in the granting of patents,^ It has been distinctly held that patentees have always derived, and still derive, their rights, not from the statute, but from the grant of the Crown.^ In this country the power to grant patents is vested by the United States Constitution exclusively in Congress. The right is accordingly statutory as contrasted with that in England, which originates with the common law, but limited and confined by statutory restraints. The principles of law governing the general subject in the two countries are substantially the same. A patent may be defined to be an exclusive temporary privilege, obtained from governmental authority granted to an inventor or discoverer, or proprietor of an invention or discovery, for the manufacture, sale, and use of the article or thing to which the patent refers. The thing patented may be either a machine or a process. It is not easy to draw the line between the two. A leading distinc- tion is, that in a machine, use is made of the mechanical powers ; 1 Coke's Third Institute, Case 85, patent was granted to Mr. Matthey, a p. 181. cutler, at Fleetbridge, iu the beginning of 2 Caldwell v. Van Vlissengen, 9 Hare, this queen's [Elizabeth] time, which I have 415, 427. hei^e in court to show, by which patent was There is strong reason to believe that the granted unto him the sole making of knives English courts would not, even before this with bone hafts and plates of lattin, be- statute, have upheld any grant of a patent cause, as the patent suggested, he brought for an invention which had already gone the first use thereof from beyond seas, yet into public use. In other words, this car- nevertheless when the wardens of the com- dinal rule of patent law was not dei-ived pany of cutlers did show before some of from the Statute of James, but from judi- the counsel and some learned in the law cial decision, since this would be a monop- that thej' did use to make knives before, oly of the class justly termed "odious." though not with such hafts, that such a The counsel in Darcy v. AUin, Noy's Re- light difference of invention should be no ports, pp. 182, 183, cites three cases (one in cause to restrain them, whereupon he the 9th of Queen Elizabeth, and all before could never have benefit of this patent, the Statute of James), where the patent was although he labored very greatly therein." judicially declared void, because the inven- It would seem, from the use of the word tion had already gone into public use be- "restrain" in this passage, that an injunc- fore the issuing of the patent. One of his tion was resorted to at that early day. cases is worth transcribing. " A monopoly TITLE BY OitlGI^-AL ACQUISITION. 507 in a process, resort is bad to chemical action. Important rules grow out of this distinction, which will be noticed more fully hereafter. A patent is in the nature of a monopol}', and in that aspect antagonistic to the interest of the public. It is to be tolerated only on the ground that it is legal, and the legislation authorizing it is only sound when under the circumstances the evils of a mono])oly are as a rule overborne by the advantages to be derived from it. " An illegal monopoly is a public grievance," and it is for the interest of trade that the court should, on due application, so declare it.i The subject of patents will be considered according to the fol- lowing arrangement of topics. I. To whom the patent should be granted. II. The subject-matter of a patent. III. Proceed- ings in the Patent Office, to obtain a patent, to correct defects, to secure a reissue, and to determine questions of interference. IV. Substantive rights acquired under a patent : (1) The patent itself; (2) Derivative, or subordinate substantive rights, includ- ing renewal or extension, assignments, licenses, sale of single machines, etc. ; (3) Infringement. V. Remedies : (1) When the patent is attacked : 1. By the United States ; 2. By an individual ; (2) Remedies by the patentee : 1. At law ; 2. In equity. I. To ivhom the patent should he granted. — The statute of 21 Jac. L, c. 3, § 6, confines the patent to the "true and first inventor." The law of this country confines the grant to an inventor or discoverer, the invention or discovery not being known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or disco very .^ The leading point of inquiry then is, who is an " inventor or discoverer" within the meaning of the statute. There may be two competing claimants for the patent, and the one who is the true and first inventor must be ascertained. The law protects him who was the first inventor, although he was not the first to adapt his invention to practical use, by permitting him to file a caveat. Independent of this caveat, the rule would have been that the person who first adapted his invention to practical use would be entitled to a patent.^ Until an invention is so perfected and adapted to use, it is not patentable.* Accordingly, whoever finally perfects a machine, and renders it capable of useful operation, is entitled to a patent, though others may have had the idea, and made 1 The Queen v. Prosser, 11 Beav. 306, 3 Phelps v. Brown, 4 Blatch. 362. 317. A case oi. scire facias to repeal letters * Peed i\ Cutter, 1 Story, 590 ; Lowell patent. v. Lewis, 1 Mas. 182, 187. 2 U. S. Rev. Stats. § 4886. 508 THE LAW OF PERSONAL PEOPEETY. experiments towards putting it in practice.^ It will not be enough to take away the claim of first invention to show that suggestions aided the claimant. It must appear that they would furnish all the information necessary to accomplish the result.^ Nor will it invalidate a patent to show that every part of the machine described in it is not the original invention of the patentee ; that is only necessary as to the parts claimed as his own invention.^ But the employment of mechanical skill to construct a machine in accordance with ideas furnished by another, gives no right to the invention.* The amount of labor and expense to which a claimant has been put does not properly enter into the question of the right to the patent.^ A person is not deprived of his right to an invention made while in the service of another, unless his em- ployment embraced the exercise of his inventive faculties.^ (a) Claim for a patent for improvements upon existing machines. — It is a well-settled rule that there may be a patent for an improve- ment upon an existing machine, whether the latter be itself patented or not. In such a case, the inventor of the improvement must confine himself to a patent for that.' So, if old materials and old principles be used in a state of cojnbination, to produce a new result, there may be a patent. The invention consists in the combination, and the combiner is, for the purposes of a patent, the " first " inventor to that extent.^ A patentee may have a second patent for an improvement on the thing first patented.^ Under these rules it is not sufficient merely to place old parts in juxtaposition. There must be invention. This implies a new or peculiar function developed by the combi- nation ; all the elements must so enter in that each qualifies the others.^'' Invention must be distinguished from mere mechanical skill. 11 So, it has been held, that a combination of old elements is patentable where a new and useful result is produced by their 1 Washburn v. Gonld, 3 Story, 122. ^ Hailes v. Van Wormer, 20 Wall. See Calioon v. Pans, 1 Cliff. 592. Ex parte 353. Henry, L. R. 8 C'h. App. 167. ^ Mathews v. Flower, 25 Fed. R. 830. 2 Pitts V. Hall, 2 Blatch. 229. Allen v. if* Pickering v. McCuUough, 104 U. S. Rawson, 1 C. B. 551. 310 ; contra, Stutz v. Armstrong, 20 Fed. 3 Holliday v. Rheem, 18 Pa. St. 465. R. 843. 4 Yoder v. Mills, 25 Fed. R. 821. " Scott Mfg. Co. v. Sayre, 26 Fed. R. 5 Crane v. Price, 4 M. & G. 580. 153; Peard v. Johnson, 23 Id. 507; Atlan- 6 Hapgood V. Hewitt, 11 Biss. 184. tic Works v. Brady, 107 U. S. 192 ; AfTd, 119 U. S. 226. Beecher Mfg. Co. v. Atwater Mfg. Co., T Evans v. Eaton, 7 Wheat. 356 ; Whit- 114 U. S. 523. tenaore v. Cutter, 1 Gall. 478. [a) Cf. Solomons v. United States, 137 Locke, 150 U. S. 193; Jencks v. Langdon U. S. 342 ; Dalzell v. Dueber Mfg. Co., Mills, 27 Fed. R. 622 ; Annin v. Wren, 44 149 U. S. 315; Lane & Bodley'Co. v. Hun, 352, pos<, p. 527. TITLE BY ORIGINAL ACQUISITION. 509 joint action, or an old result in a chea])er or more advantageous manner.! A patent for "improvements," — e. g., by the patentee, — is, to some extent, construed differently from an original patent, since a claimant in his specification may not only refer to the improve- ment which he now claims, but to former rights as something known, and only necessary to be referred to for the purpose of explaining the claim. This last matter is not to be construed with more strictness and precision than is necessary to enable it to fulfil that purpose of explanation for which it was introduced. Accordingly, where the patentee of the improvements had referred to electric currents transmitted through " metallic circuits," and a subsequent improvement (alleged to be an infringement) used " metallic circuits " in part, and the earth in part, it was decided that the expression " metallic circuits " meant metallic circuits " so far as it is material to the improvements claimed that they should be so ; " and the defendants having used wholly metallic circuits in a respect material to the improvements of the plaintiff, they were held liable.^ This general subject will be more fully considered under the head, " The subject-matter of a patent." It is now necessary to notice the qualifications imposed by the statute upon the right to obtain a patent, whereby an application may be defeated notwith- standing patentability. Invention described in a printed publication., either here or in a foreign country. — A true first inventor or discoverer, so far as his own knowledge is concerned, may fail to obtain a patent, or, if he obtains it, may be defeated because the invention has been described in some printed publication before his own invention or discovery.^ If this fact appears, it is a good defence to an action for an infringement.* Unless so described or patented, the inventor here is entitled to a patent, if he believed himself to be the first inventor.^ The rule is established in England that in order to invalidate a patent by a prior book publication, it is not enough to show that the invention was described in a published book, but it must also appear that it became known to a sufficient part of the " public." ^ 1 Railway Eeg. Mfg. Co. v. No. Hudson 6 O'Reilly v. Morse, 15 How. U. S. 62, Co. R. R. Co., 26 Fed. R. 411 ; Davis v. 110 ; Hays v. Sulsor, 1 Fisher Pat. Cas. Fredericks, 21 Blatch. 556. 532 ; Bartholomew v. Sawyer, 4 Blatch. 2 Telegraph Co. v. Brett, 10 C. B. 838, 347 ; Dovle v. Spaulding, 19 Fed. R. 744. 880, 881 (1851). 6 Plimpton v. Spiller, L. R. 6 Ch. D. 3 See U. S. Rev. Stats. § 4886. 412. * Judsonu. Cope, 1 Fisher Pat. Cas. 615. 510 THE LAW OF PERSONAL PROPERTY. The word " public " here seems to mean persons conversant with the particular subject, or persons who are desirous of taking out patents for new inventions, and therefore desirous of making themselves acquainted with the course of inventions generallj.i Under this principle it was held not to be sufficient that an American book of illustrations containing a drawing of the inven- tion was on a book-shelf in the Patent Office, but not entered as a donation in the usual catalogue, though it appeared that the librarian saw it before the patent was taken out in England. ^ It is enough, however, if known to the public, though not used.^ Invention first patented in a foreign country. — This is a ground for denying to an inventor here a patent, or defeating it if granted. This rule does not apply to the inventor or discoverer who obtained the foreign patent. He is entitled to a patent here under the terms of the Revised Statutes.* The language of this section is : "No person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid by reason of its having been first patented, or caused to be patented, in a foreign country, unless the same has been introduced into public use in the United States for more than two years prior to the application " for the patent here. The time must expire at the same time with that of the foreign patent, and must in no case exceed seventeen years. Invention known or used hy others in this country. — This fact will destroy the right of a claimant, without reference to the point whether the invention or discovery is described in any printed book. The knowledge or use may be proved as a fact.^ Invention or discovery suffered to go into public use hy inventor or discoverer. — This act is fatal to a patent if the public use be suffered to exist for two years.^ {a) The same principle exists in England, but no definite time is fixed there. It is well settled that there must be no public use by the inventor or others with his consent prior to the grant of the patents Some question may arise as to the meaning of the expression " public use " in this connection. It does not mean trials of an 1 Per James, L. J., in Plimpton v. ^ Manning v. Cape Ann, &c. Co., 108 Spiller, L. R. 6 Ch. D. 412, 429. U. S. 462. ^ Plimpton V. Spiller, siq^ra. ^ U. S. Eev. Stats. § 4886. 3 Patterson v. Gaslight & Coke Co., "^ Househill Coal, &c. Co. v. Neilson, L. R. 3 App. Cas. 239. 9 CI. & F. 788. * § 4887. ('?) The public use or sale contemplated or sale in the United States. Gandy v. by the Revised Statutes is limited to a use Maine Belting Co., 143 U. S. 587. TITLE BY ORIGINAL ACQUISITION. 511 incomplete invention by way of experiment.^ (a) It docs, however, include a case where it comes to the knowledge of others than the inventor, though not to the public at large.^ A wide interpretation prevails in this country. In a recent case it was decided that where the invention had been communi- cated to a single individual, and used by that person without any injunction of secrecy for more than two years before the patent was applied for, it had gone into public use.^ This seems to be a very unsatisfactory construction, as it gives no force to the word public. It was dissented from by Mr. Justice Miller. However, prior use must be proved beyond a reasonable doubt.^ The effect of prior public use was made severe upon the inventor by an Act of Congress of March 3, 1839. As the law then stood, the inventor lost his right to the patent, though the invention had gone into public use without his consent. This rule was very recently applied to the great case of the " driven well " (Green's patent).^ The same policy Is continued under the Revised Statutes incorporating the act of 1839 with a later act of 1870.^ If a public use is proved for the required two years prior to application for a patent, the burden of proof will be on the appli- cant to show by convincing proof that the use was not public in the sense of the statute, but was for the purpose of perfecting an incomplete invention by tests and experiments.'' Abandonment. — A patentee may so conduct himself as to lead to the inference that he has abandoned his invention to the public. This view may be fallen without reference to the matter of public use. It is a question of fact, as showing intention, A recent illustration is found in the case where, an application having been rejected at the Patent Office, the applicant took no steps for eight years to reinstate it. There was, accordingly, a presump- tion of abandonment.^ The Revised Statutes of the United States provide that any citizen of the United States, or alien resident for one year, who has made oath of his intention to become a citizen, who makes any new invention or discovery, and desires further time to ma- ture it, may file in the patent office a caveat setting forth the 1 In re Newall, 4 C. B. N. s. 269. stming statute of March 3, 1839 ; s. c. cu 2 Carpenter v. Smith, 9 M. & W, petition for rehearing, 124 U. S. 694. 300. 6 u. S. Eev. Stats. § 4S86. 3 Egbert v. Lippmann, 104 U. S. " Smith & Griggs Mfg. Co, v. Sprague, 333. 123 U. S. 249. 4 Wetherell v. Keith, 27 Fed. R, 364. » u. s. Kifle, &c. Co. v. Whitney Arms 6 Andrews v. Hovey, 123 U. S. 267, con- Co., 118 U. S. 22. See post, p. 53S. (a) Harmon v. Struthers, 43 Fed. R. 437 ; s. c. 57 Id. 637. 512 THE LAW OF PERSONAL PROPERTY. design of the invention and its distinguishing characteristics, and praying protection of his right until he shall have matured his invention. The caveat, having been filed, is confidential, and is operative for one year, except that if application is made within the year by any other person for a patent with which the caveat would interfere, the commissioner of patents gives notice to the caveator by mail. If the caveator wishes to avail himself of his caveat, he must file his regular application for a patent within three months, the usual time for transmitting the notice to the caveator through the mail being added.^ 11. The subject-matter of a patent. — The subject will be treated under two heads : (1) What is not patentable ; (2) What is patent- able, (1) WTiat is not patentable. — Though the instances falling under this head are extremely numerous, they seem to be capable of arrangement under four principal classes, 1, Where the sub- ject is a principle or mere property of matter. 2, Where the application is for a result as distinguished from a mode of pro- ducing the result. 3. Where, owing to inventions already exist- ing, whether patented or not, there is no novelty in the invention or discovery. 4, Where invention is not exercised, but at most only mechanical skill, 1. There can be no patent for the discovery of a mere property of matter, such as that the inhalation of ether produces insensibility to pain, A new force or principle can only be patented in connec- tion with the means by which it operates,- So electricity or steam cannot be exclusively appropriated, except by mechanical inven- tions or combinations which produce a particular result,^ A prin- ciple is not patentable. It is the device which is patentable. 2, It is a general rule that a patent can only be had for a means of producing a result instead of a result itself, (a) This remark is particularly applicable to a machine as distinguished horn a process ; for in the latter there may be a patent for the method of pro- ducing the result, and also a separate claim and patent for the result itself* The distinction between a machine and a process has already been adverted to. In the former the mechanical powers are used, while in the latter the chemical forces are employed. Of this, a good example is the manner of treating India rubber by 1 U. S. Rev. Stats. § 4902, See Phelps » Smith v. Ely, 5 McLean, 76 ; Blanch- V. Brown, 4 Blatch, 362. ard v. Sprague, 3 Sumner, 535. 2 Morton v. N. Y, Eye Infirmary, 5 * Merrill v. Yeomans, 1 Holmes, 331. Blatch. 116. («) Excelsior Needle Co. v. Union Needle Co,, 32 Fed. R. 221. TITLE BY ORIGINAL ACQUISITION. 513 the Goodyear vulcanizing method, which has led to the most useful practical results. 8. An invention may have been made so far as tlie mind of the -claimant of the patent is concerned, but it may have been antici- pated by another. It is thus destitute of novelty in the view of patent law. This want of novelty is fatal. The want of novelty may be presented in some one of the following forms : — A. Something already known may be adapted to a neiv use, without any difference in the mode of application. ^ (a) It will not lielp the case that the new claim is more economically worked or is more beneficial to the puljlic. B. In general, tliere is a want of novelty where an already known mode of accomplishing a result is followed, but the method is not substantially changed.^ (b) A similar rule is adopted in the substitution of steel springs for those made of whalebone, etc. ,3 or metal springs for India rubber, though a superior article is produced by the substitution.^ This rule is applied in construc- tion for the purpose of ornament.^ C. There is a want of patentable novelty in applying an article already known to a purpose analogous to that to which it had already been applied. («?) An illustration is a case where a double- angle iron, being a well known article, was applied to a particular purpose, instead of two pieces of single-angle iron, riveted to a plate.^ So the use of a prior invention for a similar purpose and with a similar result, with only a trifling change in the mode of application, is not patentable for want of novelty.'' It would not be a case of novelty to take existing furniture-springs and japan them.^ 4. The want of invention or discovery is, after all, the chief objection that can be made to a patent. It is the sole object of the patent laws to grant an exclusive right to inventors. If there be no invention there should be no patent. Want of novelty is in a sense want of invention. It is not enough tliat a thing is new 1 Western Electric Mfg. Co. v. Odell, 5 Post v. T. C. Richards, &c. Co., 26 18 Fed. R. 321. Fed. R. 618. 2 Crane v. Price, 4 M. & Gr. 580 ; Rals- ^ Horton v. Mahon, 12 C. B. x. s. 437; ton V. Smith, 11 H. of L. Cas. 223, 253; s.c. on appeal, 16 Id. 141. Miller v. Foree, 116 U. S. 22 ; Drum- ^ Goodyear u. Hartford Spring Axle Co. , mond V. Venable, 26 Fed. R. 243. 23 Fed. R. 36. 3 Thompson v. James, 32 Beav. 570. ^ Eagleton Mfg. Co. v. West, Bradlej", 4 Florsheim ?;. Schilling, 26 Fed. R. &c. Co., Ill U.S. 490. ■256. Affd, 137 U. S. 64. (a) Knapp v. Morss, 150 U. S. 221. facturing Co. v. Gary, 147 U. S. 623; Burt (b) Ansonia Co. v. Electrical Supply v. Evory, 133 U. S. 349. Co., 144 U. S. 11. See also Lovell Manu- (c) Ansonia Co. v. Electrical Supply Co., supra. 33 514 THE LAW OF PEKSONAL PKOPERTY. ill the sense that in the shape or form in which it is produced it is not before known, nor that it is useful ; there must be an inven- tion or discover^/. The inventive faculties must be exercised.^ It is not the object of the patent laws to grant a monopoly for every trilling device which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures.^ The distinction between such a mechanical device and an indention has been stated by the Supreme Court as follows : To justify a patent, the thing for which it is claimed must " spring from that intuitive faculty of the mind put forth in the search for new results or new methods, creating what had not before existed, or bringing to light what lay hidden from vision." It is not enough to display the expected skill of one's calling, or to exer- cise the " ordinary faculties of reasoning upon the materials supplied by special knowledge and the facility of manipulation which results from its habitual and intelligent practice." ^ It would be tedious to cite the various cases in which these principles have been applied. A few may be referred to for illustration. There is no invention in adapting an automatic valve (a known device) to a steam fire-engine ; * nor in filling a vessel from the bottom instead of the top r^ nor in compressing parcels of plaster- er's hair into a bale for convenience of transportation ; ^ nor in changing an irregular aperture designed for a key in a lock, to one of the size and shape of the key ; " nor an improved roof for burial vaults, as that could be done by a skilled workman without the exercise of the inventive faculty.^ («) (2) What is patentable. — ■ In general terms, nothing is patent- able but an invention or discover//. One of these words refers mainly to mechanical methods, and embraces machines : the other refers to the laws of nature, and includes chemical forces. There being at the present time a great mass of inventions that have through lapse of time ceased to be protected by a patent, as well as a large number to which protection is still extended, the time and discriminating powers of courts are severely taxed in drawing or refusing to draw distinctions w^hich will uphold a new claimant for patent-law protection. 1 Thompson v. Boisselier, 114 U. S. 1. ^ Rosenwasser v. Berry, 22 Fed. R. 2 Atlantic Works v. Brady, 107 U. S. 841. 192, 200. 6 King v. Gallun, 109 U. S. 99. 3 Hollister v. Benedict, &c. Mfg. Co., 1 Yale Lock Mfg. Co. v. Greenleaf. 117 113 U. S. 59, 72 ; Thompson v. Boisselier, U. S. 554. supra, p. 13. ^ French v. Carter, 25 Fed. R. 41. * Blake v. San Francisco, 113 U. S. 679. {a) See also Butler v. Steckel, 137 U. S. Puetz v. Bransford, 31 Fed. R. 458 ; Leg- 21 ; Fond du Lac County v. May, Id. 395 ; gett v. Standard Oil Co., 149 U. S. 287. TITLE BY OKIGINAL ACQUISITION. 515 A chief rule is, that there must be the exercise of a creative or inventive faculty. A few examples may be cited. A patent had been granted for separate celluloid keys (in imitation of ivory) for a musical instrument. A device for covering the whole key- board with a single celluloid sheet, was held to be an invention.^ So an invention which makes tarred w^ooden-pipe a practical reality .2 Nickel-plating is patentable,^ as well as the application of celluloid to a fabric for collars and cuffs.'^ Success is an important feature, and an arrangement which makes a machine practically useful which is worthless without it, is patentable.^ This principle was applied to an improvement in the " manufacture of celluloid," the commercial success of that product being largely due to it.^ So the production of a new and useful result by a new application of an old process has been held to be patentable.' This doctrine cannot be applied to a case where the new device carries out the old method more perfectly than before.^ (a) It has been already stated that a patent cannot be had where there is no more than the exercise of mechanical skill. Still, if calculation and experi- ment were requisite over and above mechanical skill, a patent can be sustained.^ In a patent for a combination of old ingredients, the fact that a 7ieiv useful result is produced is of great consequence, and will in general make it patentable.^'' The combination is the novelty, in such a case, which is the subject of the patent.^i The real inquiry seems to be, where old and new elements are combined, or per- haps old combined with old, whether that combination for which the patent is claimed as a whole is new.^^ (&) Jt is a further 1 Celluloid Mfg. Co. v. Comstock, &c. Sewing Machine Co. v. Frame, Id. Co., 27 Fed. R. 358. 596. 2 Hobbie i;. Smith, 27 Fed. R. 656. 8 Alden Evap. Fruit Co. v. Bowen, 24 3 United Nickel Co. v. Cal. Electric Fed R. 787. Works, 25 Fed. R. 475. 9 Davis v. Fredericks, 21 Blatch. 556. * Celluloid Mfg. Co. v. Chrolithion C. lo Welling v. Crane, 14 Fed. R. 571 ; & C. Co., Id. 482. Joyce v, Chillicothe Foundry, &c. Works, 5 Enterprise Mfg. Co. v. Sargent, 28 15 Fed. R. 260 ; Wood v. Packer, 17 Fed. Fed. R. 185. R. 650. 6 Celluloid Mfg. Co. V. Am. Zylonite u Harrison y. Anderston, &c.Co.,L. R. Co., 23 Blatch. 444 ; s. c. 26 Fed. R. 692 ; 1 App. Cas. 574. 27 Id. 750 ; 28 Id. 195. 12 Newton v. Grand Junction Railway 7 Cary v. Wolff, 24 Fed. R. 139; Co., 5 Exeh. 331. (a) Burt V. Evory, 133 U. S. 349; function as before, the device is a mere Busell Trimmer Co. v. Stevens, 137 U. S. aggregation. National Progress Bunching 423. Machine Co. v. John R. Williams Co., 44 (b) Not only must the combination be Fed. R. 190 ; Adams v. Bellaire Stamp- new, but there must be a new result due ing Co., 141 U. S. 539; Union Edge to the co-operative action of all the parts. Setter Co. v. Keith, 139 U. S. 531 ; If they act separately, performing the same Brinkerhotf v. Aloe, 37 Fed. R. 92. 516 THE LAW OF PERSONAL PKOPEETY. requisite that the result for which the patent is applied for should be useful. The very slightest utility will answer this requirement. («) Special rules have been established as to a process as distin- guished from a machine. A grand element in this class of cases is discovery of a law of nature, or perhaps of a chemical force, and making it useful. If an article were previously known as a chemical curiosity, and one discovered that it could be made useful, his discovery might be the subject of a patent.^ The same rule would apply to the discovery of a new use. Thus, if it were known that hydrated oxides of iron would absorb sul- phuretted hydrogen, but it was subsequently discovered that these oxides could be used to purify coal gas from sulphuretted hydrogen, the later discovery would be patentable as being new and useful.^ A patent obtained for a process, is not so strictly confined to the specification of the inventor as is a patent for a machine. In other words, the applicant is not restricted in the same way to the particular form of apparatus or other means described in his application.^ III. Proceedings in the Patent Office to obtain a patent, to correct defects, to secure a re-issue, and to determine questioyis of inter- ference. — The Patent Office is a branch of the Department of the Interior, and in it are deposited all records and other matters and things relating to patents. Its leading officer is a Commissioner. There is also an Assistant Commissioner, and three Examiners- in-chief, a])pointed by the President, with confirmation of the Senate. Other officers and employes are nominated by the Com- missioner and appointed by the Secretary of the Interior. The Examiners-in-chief are required by law to be persons of com- petent legal knowledge and scientific ability. They have power to revise adverse decisions of Examiners upon applications for patents or for their re-issue and in interference cases, to be here- after more fully considered.* In obtaining a patent, several steps may be taken, mainly of a preliminary nature, which are grouped under this general division. The specification. — By the term " specification " is meant a writ- 1 Young V. Fernie, 4 Giff. 577. ^ Am. Bell Telephone Co. v. Dolbear, 2 Hills V. London Gas Light Co., 5 H. 15 Fed. R. 448 ; s. c. 17 Id. 604. Post, & X. 312. p. 532. 4 U. S. Rev. Stats. §§ 475-496. [a) That the patented article has gone ing Co., 141 U. S. 333 ; McClain v. Ort- into general use may be evidence of its mayer, Id. 419. utility, see Magowan v. New York Belt- TITLE BY OFJGINAL ACQUISITION. 517 ten or printed statement on the part of the applicant describing his invention or discovery. At the close of it, a so-called " claim " is made by him of that for which he deems himself entitled to be protected. The specification and claim are companions, but must be dealt with separately. The object of the specification is to set forth the nature of the invention, and the mode in which it oper- ates. The o-eneral principle governing it is, that it should be drawn with such fullness and precision as to enable one skilled in the business to which it relates to construct the thing patented from the description given in the specification. To facilitate this result, the law of the United States requires models or drawings to accompany the specification, where these are practicable. The English authorities refer to a " title " describing the inven- tion. It is, however, said that the title need not give any idea of the invention. It is sufficient if the specification is consistent witli it.i The patent, however, is void if the title is so generally worded as to be capable of comprising, not only the particular invention, but improvements not contemplated in it.^ So, if there is a mate- rial variance between the specification and the title, the patent may be void.^ There is also a distinction taken in England between a provi- sional and a final specification. A " provisional specification " is in the nature of a caveat^ its principal object being to protect the inventor until the description of the invention is perfected in the final specification.* It is accordingly sufficient in the provi- sional specification to describe the nature of the invention in gen- eral terms, without entering into the minute details usual in the final specification.^ Still, under the decisions, great care must be taken in the final specification to make it correspond with that which is provisional. The complete specification must not claim anything different from that which is set forth in the preliminary one, but it need not extend to everything so included.'^ If the former covered more ground than the latter, the patent might be void." So it has been held that a patent was void because the nature of part of the invention described in the final, was not suffi- ciently set forth in the provisional specification.^ {a) No such 1 Neilson v. Harford, 8 M. & W. 806. 6 P(.„n v. Bibby, L. R. 2 Cli. App. 127. 2 Cook V. Pearce, 8 Q. B. 1044. ^ Bailey v. Roberton, L. R. 3 App. 8 Croll V. Edge, 9 C. B. 479. Compare Cas. 105.5. with Nickels v. Haslain, 7 M. & Gr. 378. » United Telephone v. Harrison, L. R. * Stoner v. Todd, L. R. 4 Ch. D. 58. 21 Ch. D. 720. 5 In re Newall, 4 C. B. n. s. 269. (a) Vickers Sons & Co. v. Siddell, L. R. 15 App. Cas. 496 ; Nuttall v. Hargreaves [1892], 1 Oil, 23. 518 THE LAW OF PERSONAL PROPERTY. distinction between the provisional and final specification exists in this country. The final specification in England or the specification in this country is the basis on which the patent rests for its validity. The regular test of its sufficiency, already stated, is, that it must enable a skilled mechanic, exercising the actual knowledge com- mon to the trade, to make the machine from it and by following its terms.^ When a fresh patent is taken out for improvements, it is sufficient if by reading the two specifications in connection, the mechanic would have no difficulty in ascertaining what is claimed. One object of the general rule is, that when the patent expires, the public may have the full and precise benefit of the invention or discovery .^ Before further considering this subject, reference should be made to the rules of construction governing a specification. As it is a written instrument, the general rule of construction is that its meaning is a matter of law for the court and not for the jury. Thus, the question of novelty, when raised by the comparison of two specifications, would in general be a matter of law,^ and the court on such a comparison may direct a jury to find a verdict.^ If, however, there be terms of art in the specification and the description of technical processes, questions of fact may be pre- sented for the consideration of the jury.^ The general rule of construction followed by the court is, to take the ordinary and proper meaning of the words, — that is, their popular signification, — unless there be something in the context to the contrary. Thus, in a particular specification, the word " parallel " was construed in a popular and not in its pure mathematical sense.^ This rule must be taken with the qualifi- cation, that if there be terms of art, evidence may be necessary to interpret them, even where the expressions are identical in two specifications bearing different dates.'^ The specification must not be misleading. As a branch of this rule, ambiguity may be fatal.^ The court looks at the grammatical construction, holding the specification to be fatally defective in case a process is so stated that it would not accomplish the end designed, even though a skilled mechanic would not be misled.^ 1 Plimpton V. Malcolmson, L. R. 3 Ch. 5 Hill v. Evans, 4 De G. F. & J. 288 ; D. 531. Betts v. Menzies, 10 H. of L. Gas. 117. 2 Newberyu. James, 2 Mer. 446 ; Bovill 6 dark v. Adie (No. 2), L. R. 2 App. V. Pimm, 11 Exch. 718. Gas. 423. 3 Thomas v. Foxwell, 5 Jur. N. s. 37 ; ^ Bet.ts v. Menzies, supra. s. c. Exch. Gh. 6 Id. 271; Booth v. Ken- 8 Turner v. Winter, 1 T. R. 602. nard, 2 H. & N. 84. 9 Simpson v. Holliday, L. R. 1 II. of * Bush V. Fox, 5 H. of L. Gas. 707. L. Gas. 315. TITLE BY ORIGINAL ACQUISITION. 519 The court declined to read the word " or " as " and," to uphold a patent in the case cited. Again, an omission to mention some- thing necessary for the beneficial enjoyment of the invention, is fatal. Nor will it suffice to use a generic word comprising a variety of species, the majority of which would be unsuitable to accomplish the end designed.^ A specification will be bad for including two parts, one of which is not new,^ unless, after elim- inating the old part, a residue is left (which is sufficiently stated) of sufficient utility ,3 or unless the old part is to be used in con- nection with and as subsidiary to the new.* With respect to the statement in the specification of the mode or means of accomplishing the result, it will in practice be neces- sary to consider each case by itself, to determine whether enough has been stated to enable a skilled mechanic to construct it with- out resorting to experiments. The following instances illustrate the foregoing principles. A description of a lamp-burner omitted to state where the hole for the admission of air was. The specification was held insuf- ficient.^ In a specification for a " process " in combining mate- rials to make stuccoes, plasters, cements, etc., the case was put by the court in the form of a dilemma. Either the party claimed all alkalies and acids, or only those which answered his purpose. In the first aspect the specification was bad, for all would not accomplish the purpose ; in the second view it was also bad, for it did not specify such as would answer.^ In a patent for a new method of drying and preparing malt, it was held that the word " malt " was to be taken in its usual sense, as an article used in the brewing but not in the coloring of beer ; and that as the latter was the purpose for which the method was really designed, it should have been so stated." A brush, differing from a com- mon one in no other respect except that the hairs or bristles were of unequal lengths, cannot be properly described as a " tapering " brush.^ A specification set forth a machine for making paper in single sheets, without seam, from one to twelve feet, and upwards, wide, and from one to forty-five feet and upwards in length. It > Weginann v. Corcoran, L. R. 13 Ch. 2 Kay v. Marshall, 8 C. & F. 245. D. 65. In this case the specification de- 3 Frear.son v. Lop, L. E. 9 Ch. D. 48. scribed rollers for crushing meal as made 4 Plimpton v. Spiller, L. R. 6 Ch. D. of " iron coated with china, and finally 412. turned with diamond tools." It appeared ^ Hinks v. Safety Lighting Co., L. R. that hard china, only, could be used, and 4 Ch. D. 607. specially tough, such as had scarcely been ^ Stevens v. Keating, 2 Exch. / ^2. made in Europe during this century, and ^ The King v. Wheeler, 2 B. & Aid. that it must be fixed in a peculiar manner 345. to an iron core, or spindle. The specifica- » Rex v. Metcalf, 2 Stark. 249. tion was, accordingly, deemed insufficient. 520 THE LAW OF PERSONAL PliOPEKTY. was held that the meaning of this statement was, that paper vary- ino- between these extremes could be made by the same machine, and that as the patentee, when he obtained the patent, had con- structed no such machine, the patent was void.^ If drawings be annexed to a specification, and be properly referred to in it, they may be taken to be a part of it.^ The model may also be resorted to in aid of construction where the words are uncertain.^ According to the usual rule, the meaning of the words is for the court ; the application of the facts to the specification is a matter for the jury.* If the meaning cannot be satisfactorily ascertained upon the face of the specification, it is void for ambiguity.^ In case of the patent of a " design," the specification may refer to a photographic illustration, and state that the design is fully represented by the photograph.^ As a rule, a specification is sufficiently clear when expressed in terms intelligible to a person skilled in the art to which it relates." The same rule applies in case of a combination of old elements to pro- duce a new result. The test is, whether a person having sufficient skill can make use of the invention without first ascertaining by experiment the exact thing to be done to make the invention of practical use.^ There are three great ends to be accomplished in requiring a. full and exact specification. One is, that the government may know what they have granted ; a second, that licensed persons- desiring to practise the invention may know, during the term of the patent, how to make, construct, and use the invention ; and the third, that other inventors may know what part of the field of invention remains unoccupied.^ Any attempt to anticipate and include future inventions would be inoperative; and if words calculated to mislead the public were employed, the patent might be declared void.^^ The general principle is, that wiioever discovers that a certain useful result will be produced in any art, machine, or composition of matter by the use of certain means, is entitled to a patent for it, provided he specifies the means he uses in a manner so full and exact that any one skilled in the science to which it appertains can, by using the means specified, without any addition 1 Bloxam v. Elsee, 6 B. & C. 169. ^ Emerson v. Hogg, 2 Blatch. 1. 2 Earle v. Sawyer, 4 Mason, 1 ; Hogg ^ Dobson v. Dornau, 118 U. S. 10. V. Emerson, 11 How. U. S. 587 ; Parker ^ Loom Co. v. Higgins, 105 U. S. 580 j V. Stiles, 5 McLean, 44; Kittle v. Merriain, Jenkins v. Walker, 1 Holmes, 120. 2 Cart. 475. ^ Jenkins v. Walker, snpra. 3 Frazer v. Gates, &c. Iron Works, 22 » Gill v. Wells, 22 Wall. 1, 25. Fed. K. 439. 1° Carlton v. Bokee, 17 Wall. 463. * Brooks u. Jenkins, 3 McLean, 432, 442. TITLE BY ORIGINAL ACQUISITIOX. 521 to or subtraction from them, produce precisely the result de- scribed. If this cannot be done by the means the applicant describes, the patent is void.^ This rule is applicable in general terms to a process as well as a machine, though it cannot be applied with the same rigor and definiteness in the latter as in the former. The applicant must, in connection with his application, make an oath before a person authorized by law to administer oaths that he verily believes himself to be the original and first discoverer of the subject-matter for which a patent is asked, and that he does not believe that the same was ever before made or used. He also must state of what country he is a citizen.^ The commissioner examines the invention or discovery, and if it appears that the claimant is justly entitled to it by law, and that the invention is sufficiently useful and important, he issues a patent accordingly.^ Claim and disclaimer. — At the close of the specification there follows, in brief terms, the " claim " of the inventor. This may be of such a nature as to be too broad in its terms, or it may be impracticable, or have some other defect. A " disclaimer " may then be resorted to for the purpose of correcting the defect. The subject of " disclaimer "is regulated by statute both in England and the United States.* The object of allowing the " disclaimer " is this : where a speci- fication contains a good and sufficient description of a useful in- vention, and it has something annexed to it which is capable of being separated from it, leaving the original description good and sufficient without the necessity of material addition, then the vicious excess can be removed by a disclaimer.^ The relief afforded by a disclaimer does not extend to the case where the patent comprises an impracticable generality, and the aim of the patentee is to alter the specification so as to show a specific process.^ Such a proceeding would be more pertinently termed a substitution of a new claim. The laws of the United States permit a disclaimer, where, through inadvertence, accident, or mistake, and without any fraud- ulent intent, the patentee has claimed more than that of which he was the original or first inventor. The patent is still valid for that which is truly and justly his own, provided that this is a mate- rial or substantial part of the thing patented. The disclaimer is 1 Bun- V. Cowperthwait, 4 Blatch. 163; ^ Ralston v. Smith, 11 H. of L. Cas. 223, O'Reilly v. Morse, 15 How. U. S. 62, 119. 243. 2 U. S. Rev. St. § 4892. 6 Ralston v. Smith, supra; Glohe Nail 3 Id. § 4893. Co. V. Superior Nail Co., 27 Fed. R, * 46& 47 Viot. n. 57; U. S. Rev. Stats. 450. §4917. 522 THE LAW OF PERSONAL PKOPERTY. deemed to be a part of the original specification as to the extent of his interest. It will not affect any action or proceeding at the time of its filing, except so far as to the matter of unreasonable delay in filing it.^ The scope of a patent must be limited to the invention covered by the claim.^ An inventor may, however, amend or enlarge his claim before the issue of his patent, where this is warranted by the specification.^ The plain meaning of the words is not be extended by construction,* nor to matters of doubtful implication.^ A claim in the case of a machine not confined to the mechanism, but ex- tended to the mode of operation generally, is void.'' If the Patent Office imposes upon an inventor disclaimers, etc., and he accepts them, they are said to be binding on him, as they are in the nature of conditions, and are imposed for the protection of third persons.'^ A patent is not to be construed by the court con- trary to a disclaimer,^ Failure to file a disclaimer, where proper before suit, will deprive the plaintiff of costs.^ Surrender and reissue. — This topic is closely connected with defects in the specification or claim, and is regulated by thestatute.^^ The law provides that whenever a patent is invalid by reason of an insufficient specification or excessive claim, made through inad- vertence, accident, or mistake, and without fraud, the commis- sioner shall, on the surrender of the patent, cause a new one to issue with a corrected specification to the proper parties, the sur- render to take effect on the issue of the amended patent. New matter is not to be introduced into the specification ; and in case of a machine patent, where there may be models or drawings, each can only be amended by the other ; but where there is neither model nor drawing, amendments may be made on satisfactory proof that the new matter or amendment was a part of the original invention. The court, notwithstanding the re-issue, has power to compare the re-issued patent with the original, and to declare the re-issue void, as being too broad,^^ as well if it embraces inventions not included in the original patent,!^ as where the original was for a 1 U. S. Rev. St. § 4917. ^ Atlantic Giant Powder Co. v. Hulings, 2 Yale Lock Mfg. Co. v. Greenleaf, 117 21 Fed. R. 519. U. S. 554. 9 U. S. Rev. St. § 4922. 3 R'way Reg. Mfg. Co. v. No. Hud- 1° Id. § 4916. son Co. r". R. Co., 24 Fed. R. 793. " Gosling v. Roberts, 106 U. S. 39 ; 4 Becker v. Hastings, 22 Fed. R. 827. HolTheins v. Russell, 107 Id. 132 ; Coch- 5 Fricke v. Hum, Id. 302. rane v. Badische, etc. Fabrik, 111 Id. 6 Hatch V. Moffitt, 15 Fed. R. 252. 293 ; Malm v. Harwood, 112 Id. 354. 7 New York Belting, etc. Co. v. Sibley, 12 wing „, Anthony, 106 U. S. 142. 15 Fed. R. 386. TITLE BY ORIGINAL ACQUISITION. 523 mechanism, and the re-issue was for a process, or for a different conti-ivance.i But where there is no expansion of the claims of the original patent, the re-issue is valid.=^ Diligence must be used in applying for a re-issue, unless the delay can be satisfactorily ex- plained. The lapse of two years justifies a demand for such explanation.^ (a) After a disclaimer, a re-issue cannot be prop- erly granted for the part disclaimed ; and if the re-issued patent covered the part disclaimed, it would to that extent be invalid.-* Interference cases. — Interference cases arise in the following manner. An application having been made for a patent, the commissioner is of opinion that it would interfere with a pending application or with an existing patent. He thereupon gives notice to the applicants and patentee, if any, and directs an assistant, called the Primary Examiner, to proceed to determine the question of the priority of invention. A patent may issue to the one who is thus decided to liave the priority, unless an appeal is taken from the Interference Examiner to the board of Examiners-in-chief ; and any party dissatisfied with their decision may appeal to the Commissioner in perscm.^ A conclusion reached in this way is, after all, not decisive. There has not been, in the proper sense, any judicial decision having a binding effect. It is still open to any party interested in an alleged interference to file a bill in equity against the inter- fering patentee and those claiming under his patent, and in the due course of equity practice the court will have power to adjudge either of the patents void, as the circumstances of the case may require. This decision will only be binding on the parties to the suit and their representatives.^ Appeal in cases other than interference cases. — If a party in other cases is dissatisfied with the decision of the Commissioner, he may appeal to the Supreme Court of the District of Columbia. (6) The case is confined on the appeal to the discussion of " reasons of appeal " set forth by the appellant in writing. The appeal is disposed of in a summary way, and the revision governs the action of the Commissioner. This proceeding is designed to determine 1 Eachus V. Broomall, 115 U. S. 429; « Wollensak v. Reiher, 115 U. S. 96. Moffitt V. Rogers, 106 U. S. 423 ; s. P. * Cartridge Co. v. Cartridge Co., 112 109 U. S. 641. U. S. 624. 2 Yale Lock Mfg. Co. v. Sargent, 117 ^ U. S. Rev. St. §§ 4909, 4910. U. S. 536. 6 Id. § 4918. (a) Cf. Topliff V. Topliff and another, other cases, are now determined b}' the 145 U. S. 156 ; Electric Gas Lighting Co. Court of Appeals of the District of Co- V. Boston Electric Co., 139 U. S. 481. lumbia, created by the Act of Feb. 9, (b) Appeals from the decision of the 1893. See Ch, 74 Laws of 1893, § 9. Commissioner, both in interference and 524 THE LAW OF PEKSONAL PROPERTY. whether or not a patent should be granted. It does not prevent a partv from contesting in any court the validity of a patent whicii niay be granted under the decision, where such validity is called in question.^ On the other hand, if the application is refused, the applicant may have his remedy by bill in equity, with proper parties, and his rights may be regularly determined by judicial action.^ Special matters concerning the issue of a patetit. — 1. Abandon- ment after filing application. All applications shall be completed and prepared for examination within two years after filing the application, otherwise the presumption of abandonment will be raised, unless it be satisfactorily shown that the delay was unavoidable.^ 2. nights of assignee of the inventor. Reference is not made here to the assignee of the patent, but to the assignee of the inven- tion or discovery. Such an assignment should be recorded. The application should be made and the specification should be verified by the inventor or discoverer, and any corrected specification signed by him, if living.^ 3. Death of inventor before patent issued. In this case the patent issues to the executor or administrator of the inventor. If the inventor died intestate, it is held in trust for the heirs at law ; if he left a will disposing of the invention in trust for the devisee. The representatives in such a case make the requisite oath or affirmation.^ IV. Substantive rights acquired under a patent. — (1) The pate7it itself. — The patent is issued in the name of the United States, and is signed by the Secretary of the Interior, or, under his direction, by one of the Assistant Secretaries of the Interior, and countersigned by the Commissioner of Patents, and recorded with the specifications in the Patent Office.^ It contains a short title or description of the invention or dis- covery, and a grant to the patentee, his heirs or assigns, of an exclusive right for the term of seventeen years, to make, use, and vend the invention or discovery throughout the United States. The specification and drawings are annexed to the patent, and form a part of it.''' The date of the patent is not to be later than six montlis from the time when it was passed and allowed and notice given to the patentee or his agent, and the prescribed fee must be paid within that time.^ If payment is not so made the i IJ. S. Rev. St. §§ 4911-4914. « Id. § 4883 ; 25 Stat. L. 40, Feb. 18, 2 Id. § 491.'). 1888. 3 Id. § 4894. "^ I Congress, &c. Spring Co. v. High 189. Rock, &c. Spring Co., 45 N. Y. 291. 2 ilarshall v. Ross, L. R. 8 Eq. 651 ; 8 G. & H. Mfg. Co. v. Hall, 61 N. Y. Ford V. Foster, L. R. 7 Ch. App. 611. But 226. see Cheavin v. Walker, L. R. 5 Ch. D. » Hier v. Abrahams, 82 N". Y. 519. 850. ^'^ Royal Baking Powder Co. v. Sherrill, 8 Braham v. Beachim, L. R. 7 Ch. D. 59 How. Pr. 17. 848. 11 Taylor v. Gillies, 59 N. Y. 331. 4 Siegert v. Findlater, L. R. 7 Ch. D. 12 ^icks v. Yates, L. R. 18 Ch. D. 76 ; 801. Potter v. McPhersen, 21 Hun, 559. 5 Ford V. Foster, L. R. 7 Ch. App. 611. (rt) Cf. New York Card Co. v. Union exclusive use of the word " Columbia" as Card Co., 39 Hun, 611. a trademark. ColumbiaMill Co. v. Alcorn, (b) One cannot acquire a right to the 150 U. S. 460. TITLE BY ORIGINAL ACQUISITION. 547 sign, or symbol, as well as in words, or there may be a combi- nation of signs, symbols, or words,^ («) There is a tendency in the English cases to hold that even where there is not, strictly speaking, a trade-mark, there will be an injunction granted to prevent a trader from so conducting himself as to mislead persons who intend to purchase of another dealer, and so induce them to buy of himself. This doctrine pro- ceeds on the broad ground that a fraud must not be committed, and is independent of the theory that a trade-mark is property .^ It has been held that a trade-mark cannot exist " in gross," but only as an incident to a thing used, manufactured, or sold.^ It may be said as to trade-marks in general that the mere intent to use a particular name will not be sufficient to give a claim as against one who, though aware of such intent, acts by anticipation, and first makes use of the name.^ IV. Assignment of a trade-mark. — Though a trade-mark is for most purposes to be regarded as property, the question of its assignability depends greatly upon the nature of the mark and the mode in which it has been used.'^ The assignment must not result in a false assertion, — as, for example, that goods not manufactured by A., the assignor, are in fact made by him.^ Still, treating a trade-mark as property, it may in general be sold, and transferred upon a sale and transfer of the manufactory of the goods on which the mark has been commonly affixed, and may be lawfully used by the purchaser. The difficulty mainly arises when the trade-mark consists of the name of the manu- facturer, and the probability is that the public will be misled by the supposition that they are buying goods made by the original manufacturer.'^ {h) A court of equity could under such circumstances give no protection to an assignee, since he 1 Cook V. Starkweather, 13 Abb. Pr. 3 Cotton v. Gillard, 44 L. J. Ch. 90. N. s. 392 ; Godillot v. Harris, 81 N. Y. * Civil Service Supply Association v. 263 ; Read v. Richardson, 45 L. T. x. s. Dean, L. R. 13 Ch. D. 512 ; Maxwell v. 54. The device in this last case was a Hogg, L. R. 2 Ch. App. 307. bull dog's head on a black ground, sur- ^ Per Turner, L. J., in Bury v. Bed- rounded by a circular band, on which were ford, 4 De G. J. & S. 352. the names of the proprietors. ^ Leather Cloth Co. v. Am. Leather 2 Lee V. Haley, L. R. 5 Ch. App. 155 ; Cloth Co., 4 De G. J. & S. 137, 144. Boulnois V. Peake, L. R. 13 Ch. D. 51-3, ^ Leather Cloth Co. v. Am. Leather n.; Hookham v. Pottage, L. R. 8 Ch. Cloth Co., 11 H. of L. Cas. 523. App. 91. (a) The adoption of packages of a pecu- trade-mark. Fischer i;. Blank, 138 N. Y. liar form and color in which to enclose 244. merchandise for sale, without any distin- ' (b) See Symonds v. Jones, 82 Me. 302 ; guishing symbol, letter, sign, or seal, is Brown Chemical Co. v. Meyer, 139 U. S. not in general sufficient to constitute a 540. 548 THE LAW OF PERSONAL PKOPEETY. would violate the maxim that he who comes into equity must do so with clean hands. The principles which govern the use of a name which has already acquired the character of a trade-mark by another person, whether of the same name or not, are well stated in the case of Massam v. Thorley's Cattle Food Company .^ Bearing in mind that a person by the common law may assume a name, it is easy to see that any inflexible rule that a person having the same name as the first appropriator may use the trade-mark with impunity, is not only promotive but provocative of fraud. The qualification is accordingly necessary, that a person of the same name cannot use a prior trade-mark belonging to another, with intent to deceive, nor continue to use it if such continued use be calculated to deceive. It was at one time thought that the case of Burgess v. Burgess ^ left the right to nse a name open, without qualification. The effect of the opinion of Lord Justice Knight Bruce in that case has since been much limited.^ This class of cases must be dis- tinguished from those where the article has acquired the name of an individual as an article of commerce as distinguished from that of a manufacturer ; an example is that of " Liebig's Extract of Beef." Such a name cannot properly be treated as a trade-mark. The same rule would govern an assignment, a ruling element in this whole subject being that there must be no deception. No assignment of a trade-mark should be upheld by the courts which has a misleading effect. The Thorley Case, being decided in the Court of Appeal, must be regarded as practically overruling a view taken by the Master of the Rolls in an earlier decision,* to the effect that a person who has by fair means gained the knowledge of a trade- secret may, after the death of the original inventor, make and sell the article under his name. This case apparently went upon the ground that a trade-mark, on the death of the inventor, ceases to be property, and is open to all, puhlici juris. The correct view is that the trade-mark passes to the representatives of the inventor or appropriator at his death.^ A mortgagee will not necessarily stand in the exact position of an assignee. He may have taken a mortgage on the stock in trade with the trade-marks simply as a security for his claim, without using the trade-marks, or having an intent to use them. Accordingly, in such a case he cannot restrain persons claiming 1 L. R. 14 Ch. D. 748. * James v. James, L. R. 13 Eq. 421. 2 3 De G. M. cS; G. 896. 5 Massam v. Thorley's Cattle Food Co., 8 Massam v. Thorley's Cattle Food Co., supra, p. 754. L. R. 14 Ch. D. 748, 752. TITLE BY OKIGIXAL ACQUISITION. 549 under the mortgagor from using the trade-marks.^ The princii)le asserted was, that a trade-mark will not be protected Ijy an in- junction in favor of one who has never used it, is not at the time using it, and who does not allege that he intends to use it. y. Trade-marks^ as affected by the sale of the business, including transfers on the dissolution of a partnership. — This question is not affected by the point whether the sale is by the trader himself, or by his assignee in bankruptcy. On a sale, the former owner has no right, on setting up a new business of the same kind, to use the trade-marks of his old business, or in any other way to represent himself as carrying on the identical business which was sold, although as a general rule he has a right to set up a new business of the same kind, even next door to the old busi- ness.2 {a) The point is, that he must do nothing to mislead cus- tomers. The only way to bind him not to set up the new business is to obtain a specific agreement from him to that effect. It was at one time decided that the court would restrain the party set- ting up the new business from sending special solicitations to the customers of the old house inviting them to deal with him at the new place of business. This proposition must now be regarded as overruled.^ On the dissolution of a partnership, special questions arise. Some of these will be stated. (1) The first case is one where stock-in-trade is purchased, but there is no assignment of the good-will of the business. The outgoing partner is then entitled to an injunction to restrain the use of his name in the style of the firm.* (2) A brand which has become a trade-mark may be valued and sold with the works.^ (3) A trader having been a manager or partner in a firm may, on setting up an independent business, state to the public that he has been with the firm, but must do so in a way not calculated to lead the public to believe that he is carrying on the business of the firm which he has left, or is in any way connected with it.G (6) 1 Beazley v. Scares, L. R. 22 Ch. D. 660. of in Pearson i'. Pearson in the Court of 2 Hudson V. Osborne, 39 L. J. Ch. 79. Appeal (L. R. 27 Ch. D. 145), and was 3 Labouchere v. Dawson, L. R. 13 Eq. overruled in Collier v. Chadwick (Court of 322. The decision in this case elicited Appeal), referred to in Vernon v. Hallam much difference of opinion among Enghsh (L. R. 34 Ch. D. 748, at pp. 751 and 752), judges. The principal objection to it which follows Pearson v. Pearson, supra. seemed to be that it established an im- * Scott v. Rowland, 26 L. T. N. s. 391. plied promise or obligation in restraint of ^ Hall v. Barrows, 4 De G. J. & S. 150. trade. The case was distinctly disapproved ^ Hookham v. Pottage, L. R. 8 Ch. [a) Marcus Ward & Co. v. Ward, 40 (b) Van Wyck v. Horowitz, 39 Hun, N. Y. St. R. 792. 237. 550 THE LAW OF PEKSONAL PROPERTY. (4) If the trade-mark contain the name of one of the partners, such as " Condy's Fluid," either party, on dissolution, may use the name as Ions; as there is no fraud by the party whose name is not used in misleading the public in the supposition that the article is manufactured by him whose name is used.i Where no provi- sion is made by the partners as to the trade-mark in such a case, it is really an undivided asset belonging to the former partners in common, and one cannot prevent the other from using it2(a) More recently, it has been held by the Court of Appeal ^ that as one may assume any name that he pleases, there is nothing to prevent'a trader from using the name, even of a living person, as a trade-mark, so long as he does not interfere with some other existing trade-mark. The sole right on which a court of equity acts is that a trader must not use a description, whether true or not, which is intended to represent, or calculated to represent, to the public that another man's business is his business, and so by a fraudulent statement deprive another of the business which would otherwise come to him. The court interferes solely for the purpose of protecting the owner of a trade or business from a fraudulent invasion of that business by somebody else. It does not interfere to prevent the outside world from being misled.'^ VI. Infringement. — The remedy for infringement is twofold. It is either by an action for damages or an injunction in equity. The injunction is by far the most common, as it is the most effec- tive remedy. Some of the cases in which an action at law for damages has has been brought are cited in a note.^ In such an action it is an essential ingredient that the imitation must be calculated to deceive. It is really founded in fraud ; and the point whether the imitation was calculated to deceive, and whether the defend- ant used the mark with intent to supplant the plaintiff in his business, will be submitted to the jury.^ App. 91. In this case the advertisement * Levy v. Walker, 10 Ch. D. 436, 447, was "P. from H. & P." It was held 448; New Haven Patent Rolling Spring not to be proper, as not being sufficiently Bed Co. v. Farren, 51 Conn. 324. clear ^ Blofield v. Payne, 4 B. & Ad. 410 ; 1 Condy V. Mitchell, 37 L. T. 766 Sykes v. Sykes, 3 B. & C. 541 ; Rodgers (Q, A.). V. Nowill, 5 C. B. 109 ; Morison v. Salmon, '2 Banks v. Gibson, 34 Beav. 566. 2 M. & Gr. 385 ; Crawshay v. Thompson, 8 Jessel, M. R.; James and Bram- 4 Id. 357. WELL, L. JJ. ^ See cases supra. (a) Caswell v. Hazard, 121 N. Y. 484. no express mention is made in the deed of Where, upon the dissolution of a firm, one assignment. Merry v. Hooper, 111 N. Y. of the partners retires, and the remaining 415. See also Menendez v. Holt, 128 members succeed to and continue the busi- U. S. 514 ; Laughman's Appeal, 128 Pa. ness, the right to use the trade-marks of St. 1. the old firm passes to the new, although TITLE BY ORIGINAL ACQUISITION. 551 In actions for an injunction in equity there are said to be four elements : That the plaintiff has properly acquired the trade- mark ; that there is no false representation by him calculated to mislead ; that the article is used in some way in trade ; that the defendant has imitated the mark for the purpose of making profit or use of other articles of a similar description.^ The court pro- ceeds upon the right of property, and accordingly the injunction can be had, even though the infringer used the trade-mark inno- cently .^ It is a further rule that the owner can have an account taken of the profits realized by the infringer. But compensation of this kind will only be given for use of the trade-mark after the infringer has been informed of the ownership by another.^ Some of the rules governing the right to an injunction are these : — (1) The plaintiff must seek his remedy "with clean hands." (a) The meaning of this expression is, that he must not be engaged in any attempt to mislead the public, — as, for instance, palming off a worthless article as valuable and useful. It is no answer to this proposition to say that a person is not answerable for a false- hood in his trade-mark because it may be so gross and palpable that no one is likely to be deceived by it."* This is not a question so much between the plaintiff and the infringer as it is between the plaintiff and the public. The objection goes to the founda- tion of the plaintiff's right, and asserts that a cause of action bottomed on a fraud against the public cannot be recognized in a court of justice. (2) The plaintiff's trade-mark must have been imitated. Still, it is not necessary that the imitation should be so close as to de- ceive persons seeing the two marks side by side. It is enough that the degree of resemblance is such that ordinary purchasers, proceeding with ordinary caution, are likely to be misled.^ It is not absolutely necessary to show, in order to maintain an action, that the public has been actually deceived. It is sufficient that the imitation is calculated to deceive (b) (and this may be deter- mined from inspection^), or that there is an intention to deceive.'^ 1 See McAiidrew v. Bassett, 4 De G. Cloth Co., 4 DeG. J. & S. 137, 148, /^er J. & S. 380. Lord Chancellor. 2 Millington v. Fox, 3 M. & C. 338 ; ^ Seixo v. Provezende, L. R. 1 Ch. App. Edelsten v. Edelsten, 1 De'G. J. & S. 185 ; 192. Di.xon V. Fawcus, 3 Ell. & Ell. 537. ^ Hookham v. Pottage, L. R. 8 Ch. 3 Edelsten v. Edelsten, siqjra. App. 91 ; Alexander u. Morse, 14 R. 1. 153. 4 Leather Cloth Co. v. Am. Leather ^ Cope v. Evans, L. R. 18 Eq. 138. (a) See Prince Mfg. Co. v. Prince Metal- AVirtz v. Eagle Bottling Co., 50 N. J. Eq. lie Paint Co., 135 N. Y. 24. 164. {b) Heinz v. Lutz, 146 Pa. St. 592 ; 552 THE LAW OF PERSONAL PROPERTY. (3) Delay by the plaintiff may cause the court to refuse relief. All owner may proceed at once, before any one has been actually misled, for the life of a trade-mark may depend upon the prompti- tude with which the right of property is vindicated.^ Yet an injunction will not necessarily be refused because considerable time has elapsed since infringement first took place. The court will, however, in such cases require clearer proof of fraudulent intent, and that the plaintiff has been actually injured by the infringement.^ The court will not regard delay for the purpose of obtaining sufficient proof of the injury sustained as evidence of laches or neglect.^ (4) It has been held that in deciding the question of the piracy of a trade-mark, the color of the mark cannot be taken into account.* (5) The injunction in a proper case may extend -to third per- sons, such as carriers of goods having forged brands.^ They may also be compelled to disclose the names of the persons from whom the goods were received.^ A purchaser of the goods may be enjoined from selling them, even though innocent of the forgery at the time of his purchases.'^ So printers of forged labels may be liable, as aiding in the violation of the rights of the owner.^ VII. Registration of trade-marks. — A sj'stem of registration of trade-marks is now established in England by the Act 46 & 47 Vict. (1883) c. 57.^ This is a substitute for the prior registra- tion act of 1875, and repeals it. The act is drawn with some detail. It is confined to marks for particular goods or classes of goods. Opposition may be made to an application for registration in a prescribed manner, and if the application is persisted in, the question is determined by the officer designated by the act, whose decision is subject to appeal to the Board of Trade. This body may in turn refer the appeal to the court. Registration is pre- sumptive evidence of a right to exclusive use. If the trade-mark is one of the class that can be registered under the act, there can be no proceeding for an injunction or for damages, unless registra- tion has been had either under this or former acts, or has been refused by the proper office. A certificate of refusal may be ob- 1 Johnston v. Orr Ewing, L. R. 7 App. 6 Qrr v. Diaper, L. R. 4 Ch. D. 92. Cas. 219. 7 Upmann v. Forester, L. R. 24 Ch. D. 2 Rodgers v. Rorlgers, 31 L. T. 285. 231. 3 Lee V. Haley, L. R. 5 Ch. App. 155. 8 De Kuyper v. Witteman, 23 Fed. R. * Nuthall V. Vining, 28 W. R. 330. 871. Contra, New York Cab Co. v. Mooney, ^ See also amendatory acts 48 & 49 Vict. 15 Abb. N. C. 152. c. 63 ; 49 & 50 Id. c. 37 ; 51 & 52 Id. s Upmann v. Elkan, L. R. 7 Ch. App. c. 50. 130. TITLE BY ORIGINAL ACQUISITION. 553 tained from the office. All registrations are to be entered in a book to be kept for this purpose.^ The act in respect to cutlery trade-marks (called " Sheffield marks" ) is modified by provisions concerning the cutlers' company in Yorkshire.^ A large number of decisions have already been made by the court in carrying this and prior acts into effect. No truly effective system of registration of trade-marks exists in the United States. It is not open to Congress to establish a general and uniform system, owing to a want of constitutional power. A trade-mark is not an invention, discovery, or writing within the meaning of the eighth clause of the eighth section of the first article conferring upon Congress the power to secure for limited times to authors and inventors the exclusive right to their respective writings and discoveries. A regulation of a trade-mark is, at most, a regulation of commerce, which must be limited to " Commerce with foreign nations, among the States, and with the Indian tribes." Commerce commencing and terminating within the limits of a State is beyond the jurisdiction of Congress. It was on these grounds that it was decided that the trade-mark legislation of Congress of the years 1870^ and 1876^ was uncon- stitutional, as neither in its terms nor essence a regulation prop- erly limited, but was intended to embrace all commerce, including that between citizens of the same State.^ Tliis decision led to a statute which confined the right to registration to owners of trade-marks used in commerce with foreign nations or with the Indian tribes, provided that such owners were either domiciled in the United States or located in any foreign country or tribes, which by treaty, convention, or law afforded similar privileges to citizens of the United States.^ Under this act, the court has no jurisdiction over a suit between citizens of the same State respecting a trade-mark, unless the goods were intended to be transported to a foreign country, or to be used in lawful commercial intercourse with an Indian tribe." A later statute provides that nothing contained in the act of 1881 shall prevent the registry of any lawful trade-mark right- fully used by the applicant in foreign commerce or with Indian tribes at the time of the passage of that act.^ Under this pro- vision, the word " trade-mark " for the purpose of registration 1 46 & 47 Vict. c. 57, §§ 62-80. 6 Laws of 1881, ch. 138 (21 U. S. Stat. 2 Id. § 81. See also 51 &52 Vict. c. 50. L. 502). 3 16 U. S. Stat. L. 198. '' Luyties v. Hollendeer, 30 Fed. R. 4 19 U. S. Stat. L. 141. 632 ; Ryder v. Holt, 128 U. S. 525. 5 United States v. Steffens, 100 U. S. » 22 U. S. Stat. L. 298. 82. See Baldwin v. Franks, 120 U. S. 678, 687. Ante, p. 544. 554 THE LAW OF PERSONAL PROPERTY. must have the signification given to it by the general rules of the common law.^ Registration is no more than prima facie evidence of ownership.^ For further details, the act should be consulted. Criminal legislation for the protection of trade-marks is com- mon in the various States of the United States. In New York, violation of the trade-marks provisions is made a misdemeanor.^ In England, offences against the trade-marks registration law- are treated summarily, and with the imposition of a fine upon a convicted offender, (a) 1 Moorman v. Hoge, 2 Sawy. 78, 85. ^ Q^gn Coye Mfg. Co. i;. Ludeling, 22 This case construes the law of 1870. Fed. R. 823. 8 See Penal Code, §§ 364-371. (a) See Merchandise Marks Acts, 1887-1891, 50 &51 Vict. c. 28, and 54 Vict. c. 15. CHAPTER 11. TITLE BY ACT OF THE LAW. The meaning of this expression is, that the title to property- may be gained by a mere legal rule. An owner may thus be deprived of his ownership, and it may be vested in another. This will, in most cases, be the result of some legal proceed- ing. The various modes which will be considered are, I. For- fefture; II. Escheat; III. Taxation; IV. Eminent Domain; V. Judgment ; VI. By Proceedings in the case of a failing debtor ; YII. By succession in case of the death of a former owner (in- cluding testament and administration). Each of these instances will be treated separately. DIVISION I. — Forfeiture. This is a species of title of great antiquity, and applicable both to real and personal property. One principal ground of it was the commission of crime, and it was applied to a large number of offences. Usually a verdict of a jury was necessary, so that there was no forfeiture until conviction. In the meantime, the alleged criminal might be sustained from the goods, or might sell them to persons acting in good faith. The doctrine of relation, however, applied to the case, so that in some instances the for- feiture after the conviction was referred back to the time when the wrongful act on which the forfeiture was based was com- mitted. The effect of this rule was to overturn intermediate transfers, — as, for example, where they were of a fraudulent character, calculated to deprive the king or other claimant of the benefit of the forfeiture. The cases occurring in the early reports are those of personal actions against an offender, with the for- feiture of property inflicted as a penalty for his crime. In modern law, proceedings against a chattel considered as itself an offender, without reference to its ownership, are of much importance, and will be noticed hereafter. Where the right of the wrongdoer is qualified, as where he owns property subject to a pledge, the interest of the creditor is 556 THE LAW OF PERSONAL PROPERTY. not affected.! it extended, however, to all kinds of personal pro- perty, whether in possession or in action.^ The principle of for- feiture for crime did not extend to trials in the court of admiralty for crimes committed on the high seas, as that court followed the Roman and not the common law. Forfeiture may be claimed under a contract providing for it. This case is simply a branch of the law of contracts, and is an instance of the law of contracts. There are comparatively few instances in the United States of forfeiture for crime. There is in the United States Constitution a clause prohibiting Congress from causing an attainder of treason to work a forfeiture beyond the life of the person attainted.^ There are, however, some cases of forfeiture for crime under the legislation of Congress. These are, in the main, for violation of the laws concerning customs or the internal revenue, the navi- gation laws, regulations of vessels engaged in commerce, and the laws prohibiting the slave-trade.* Regular methods of trial are established for ascertaining the violation of law, and for enforcing forfeiture. Things subject to forfeiture may be regarded as of three distinct classes, (1) Those to which some crime or guilt is attributed. (2) Those which are considered as having a hostile character. (3) Those which are treated as liable for a debt. In the first class of cases there is a species of legal fiction that the chattel is itself an offender ; it is " guilty," and yet the sole object of the fiction is to justify a legal proceeding against it, and to change its ownership, — for example, to take it from the existing owner and transfer it to the United States. A forfeiture may thus happen for a prohibited act though the owner is himself personally innocent.^ In proceedings under the laws of the United States, the doc- trine of " relation " assumes great prominence. The condemna- tion will relate back, not merely to the seizure, but to the wrongful act which was the ground of the seizure. The title of a purchaser in good faith will, accordingly, be subverted.*^ This rule met with 1 13 Vin. Abr. 443, Tit. Forfeiture. is found in the Revised Statutes, Title 2 Hawk., P. C. 638, Cap. 49, § 9 (6th XXXV, Internal Revenue, and amenda- Lond. Ed.). tory acts. The distillery itself may be 8 Art. III. § 3. destroyed in certain cases, so as to pre- * Forfeiture for breach of customs laws vent the use of it for the purpose of dis- is provided for in Title XXXIV. of the tilling, § 3332. The statutes should be Revised Statutes. There will be no for- examined for further details, feiture for errors happening by mistake or " United States v. Brig Maleck Adhel, accident and not from any intention to 2 How. U. S. 210, 234. defraud the revenue § 3051. The punish- ^ United States i'. Bags of Coffee, 8 ment for violation of internal revenue laws Cranch, 398; United States v. The Brig- TITLE BY ACT OF THE LAW. 557 vigorous opposition from Judge Story in the cases cited, who would date the forfeiture from the time of conviction. The title obtained by the forfeiture is a new one, and not merely a continuation of tho old one. Forfeiture applies to admiralty law, both in prize cases and in the enforcement of maritime liens, as for collision, and the like. The discussion of these, so far as they have special features, will be considered hereafter. The legal proceeding to cause a forfei- ture is called an action in rem, or against the thing, as distinguished from an action against the person, or in personam. This proceed- ing will be considered more fully hereafter, under the topic of judgments. DIVISION II. — State Succession or Escheat. This subject is analogous to title by escheat in the case of real property. It is a well settled rule of the common law, in the case of real property, that if an owner dies without heirs, the land escheats to the State, as being property without an owner. In the case of personal property, goods without an owner {bona va- cantia') in some instances belonged to the finder, and in others, to the sovereign. Instances of the latter were treasure-trove, ship- wrecks, and estrays. Much controversy has arisen in respect to succession to personal property, where an owner dies intestate and without successors, such as husband, w4fe, or next of kin. It was the view of Lord Coke that such property inured to the king, as a branch of the royal prerogative.^ This view is stoutly resisted by the great antiquarian, John Selden, who insists that Lord Coke wrongly interpreted the authority that he cited.^ It has, however, in modern times, been decided by the Privy Council in England, that the right to goods belonging to persons dying intestate, and without leaving husband or widow, and with- out kindred, as bona vacantia, has from the earliest times been vested in the king, in right of his crown, and that the Church never had, at any time, by law, any beneficial interest in the property of intestates, but only the right of jurisdiction and antiue Mars, Id. 417. The majority of not divest the title of a purchaser in good the court were of the opinion that they faith. were bound by express words in the statute. ^ Hensloe's Case, Coke's Rep., Part 9, Justice Story held that the words of the 36 &, at p. 38 6, citing "Close Rolls," 7 statute must be interpreted according to Hen. III. m. 16. the rules of the common law, which did * Selden's Works, Vol. 6, p. 1681. 558 THE LAW OF PERSONAL PROPERTY. administration.! In this country the matter is governed by stat- utes in the respective States. In the State of New York there is, in two of the counties (New York and Kings), an officer called a public administrator, whose duty it is, among other things, to take charge of vacant estates. They proceed substantially as other administrators, and pay any surplus, after discharge of fees and expenses, into the city trea- surv.(rt) In the other counties a similar service is performed by the'county treasurer. Surplus moneys in this case are paid into the State treasury, {b) DIVISION III. — Taxation. This mode of obtaining title applies both to real and personal property. It is a matter of statute regulation, which branches out into much detail. Taxation as affecting personal property only is considered here. The tax may be levied on real property, and yet be collected from the taxpayer's personal estate. There is first an assessment of the amount to be paid according to a fixed and equitable propor- tion, by public officers termed assessors. They proceed judicially upon due inquiry. They are not personally liable for errors of judgment, though they are for wilful misconduct.^ If the tax is not paid within the prescribed time, a warrant is issued to a col- lector, who proceeds to seize upon or " distrain " the property of the taxpayer, whether it be money or goods. In the case of goods, there would be a public sale, the tax would be paid from the pro- ceeds, and the overplus returned to the owner.^ The collection of taxes to be paid to the United States under internal revenue laws is regulated by the Revised Statutes.* Cer~ 1 Dyke v. Walford, 5 Moore, P. C. C. tenced to the pillory in the county where 434 (1846). the offence was committed. The court 2 Queen v. Buck, 6 Mod. 306. This is said the offence deserved exemplary punish- an old case, where the collectors and asses- ment. sors omitted some from their books whom ^ East India Company v. Skinner, they nevertheless assessed, and put the Comberbach's Rep. 342. money in their own pockets. They were * Tit. XXXV. See especially, § 3187. adjudged guilty of a misdemeanor, and sen- (a) The law in New York relative to Procedure, §§ 2665-2669. Provisions re- the disposition of vacant estates, as stated lating to the office of public administrator in the text, was formerly found in the in the city and county of New York may Revised Statutes, Part IL, Ch. VL, Tit. be found in the Consolidation Act, §§ 216- VI. These provisions were, however, re- 247. In the county of Kings surplus pealed by ch. 686, Laws of 1893. This moneys are paid into the State trea.sury. act re-enacted much of the old law, in the (6) Code of Civ. Pro. §§ 2668, 2747. form of amendments to the Code of Civil TITLE BY ACT OF THE LAW. 559 tain specified articles are exempt from distraint. In case of sale, the collector gives a certificate of sale, which is made conclusive evidence of the regularity of his proceedings in making the sale.^ The subject in New York and other States is fully regulated by statute. 2 DIVISION IV. — Eminent Domain. The right of a State or of the United States to take the prop- erty of an individual owner on this ground, includes both real and personal property. The right is inseparably attached to national empire and sovereignty.^ All kinds of property are subject to the right.* The occasion for taking personal property in this manner is, however, rare. One of the very early cases in which the right was asserted is the famous Saltpetre Case, in which the court vin- dicated the right of the " Commonwealth " to take property in time of war.^ Personal property, as well as real estate, is protected by the con- stitutional provision that private property is not to be taken for public use without just compensation ."^ This kind of property may be destroyed without compensation in cases of inevitable necessity, as to arrest the spread of a conflagration.^ A provision requiring a particular county to issue bonds for an improvement in which the State, as a whole, is interested, is not a case of emi- nent domain, but rather of taxation.^ In the exercise of the right of eminent domain, there is nothing in the nature of a contract between the owner and the State. It is only necessary that compensation be made, and then the owner's property can be taken without his assent.^ If the property be taken by " due process of law," — that is, by judicial inquiry and condemnation, with due notice to the owner, — the title of the original owner will be divested, and the State or its appointee will be substituted as owner. 1 U. S. Rev. St. § 3194. ^ Coke's Rep., Part 12, p. 12. 2 For the law of New York, see the « People v. Mayor, &c. of Brooklyn, 9 Revised Statutes of that State (8th ed.), Barb. 535. pp. 1116, et seq. The collector proceeds '' American Print Works v. Lawrence, under a tax list and warrant, distrains, 3 Zab. 9 ; Hale v. Lawrence, Id. 590 ; 1 sells, and pays any surplus to the owner. Id. 714. Ante, pp. 430, 431. pp. 1116, 1117. There are special rules » County of Mobile v. Kimball, 102 for the assessment of taxes on incorporated U. S. 691. companies, pp. 1149-1159. » Garrison v. City of New York, 21 3 Jones V. Walker, 2 Paine, C. Ct. 688. Wall. 196. * New York, &c. R. R. Co. v. Boston, &c. R. R. Co., 36 Conn. 196. 560 THE LAW OF PEKSONAL PROPERTY. DIVISION Y. — Title hy Judgment. The word " judgment " is used in this connection in a broad sense and is intended to include all judicial determinations of legal proceedings whereby the title to property may pass. Judg^ ments are commonly divided into two principal classes, in per- sonam and in rem. (1) Judgments in personam. These are the results of actions or other proceedings against persons who are expressly or tacitly in- cluded in the litigation. The word " judgment " is more properly applied to an action in a court of law, the result of a suit in equity being regularly called a " decree." It is, however, common in this country to call each a " judgment." A judgment in personam is in its nature a judicial declaration that a certain thing is to be done by a party to an action,— as, for example, to pay a sum of money. This declaration does not work out its own result. It remains a declaration and nothing more, unless it is carried into effect by the executive branch of the government, through a writ called an " execution," addressed in the name of the people to the sheriff or other officer of the county, requiring him to carry the judgment into effect, either by selling the property of the debtor, or taking him personally into custody, or delivering specific property to the successful party, as the case may be. An execution is thus vitally connected with such a judgment. Lord Coke says an execution is the life of the law, and the fruit and life of every suit. In an equity case, instead of an execution there will be a requirement by the court that the prescribed act be done, — e. ^., that a deed be executed, or that the party refrain from doing a forbidden act. If this direction be disregarded, the party will be deemed guilty of a contempt of court, and treated accordingly. It has been strongly claimed that there is one instance in which a judgment in personam changes the title to property. This is where personal property has been wrongfully converted to the use of another, and the owner brings an action and recovers its value. The argument is, that the property vests at once in the wrongdoer, and the former owner has only the judgment. The more correct view is, that the title does not pass by the mere force of the judg- ment, but only when that has been paid.^ 1 The difficulty in this case grows out disregard the act of conversion, and claim of the election of remedies. "When an his property. Having elected to sue for owner's property is thus converted to the the value, and obtained judgment, he is use of another, he has a choice of reme- estopped from bringing an independent dies ; he may either sue for the value, or action to recover the property itself. TITLE BY ACT OF THE LAW. 561 There appears to be no exception to the rule that a judgment for a mere sum of money is but an incorporeal right, vesting no title to property other than the ownership of the judgment itself. Where the judgment, though against a person, is for the delivery of a specific thing, such as for specific coin in a box or a particular chattel, it vests a title, while the office of the execution in that case is to put the owner into possession of the thing to -which he is already entitled by force of the judgment. (2) Judgments in rem. Such a judgment is the result of an action against a particular thing. A chattel is, as it were, per- sonified, and becomes a defendant in the action. This theory is resorted to, not only in cases of forfeiture, already referred to, but in case of ships and other property, as hostile or contraband in time of war, or in the enforcement of liens in civil cases in courts of admiralty, as for salvage, seamen's wages, collision, etc. A mode is provided whereby an owner, tliough not sued, is noti- fied of the pendency of the action, with a corresponding liberty to make his defence. Notice is of the essence of the proceeding. Still, it does not follow from this reason- ing that tlie oicnership passes. The most that can be said is, that no other action can be brought against the same party, or those in privity with him (Hatch v. Cod- •dington, 32 Minn. 92), while the judgment remains outstanding. The title, accord- ingly, is unchanged. This would appear to be well shown by the exercise of the right of recaption, which would apparently still exist in favor of the owner, though he could not resort to a new proceeding in court. (As to ' ' recaption " by the act of an owner without legal proceedings, see Blackstone's Com. Book III. chap. I. par. ii.) Drake v. Mitchell, 3 East, 251, 258. Brinsmead v. Harrison, L. R. 6 C. P. 584, is an important and well- reasoned case, maintaining that no title passes until satisfaction of the damages ias been made (p. 587). The argument is, that the proceeding is not in rem, and that it has no specific effect upon the goods (p. 588). At most, there is but an assess- ment of their value. A case in Jenkins' Centuries (4tli Cent., Case 88), is ap- proved, as well as Cooper v. Shepherd, 3 C. B. 266, while a dictum of Jervis, C. J., in Buckland v. Johnson, 15 C. B. 145, 157, is disapproved. This point has sometimes been considered in connec- tion with the question whether, if there be two or more persons jointly liable for a trespass to property or a conversion of it, and an action be brought against one and judgment obtained without satisfaction, it is a bar to an action against the others. There is, however, no necessary connection between the two questions : one is a matter of the transfer of property valid as to all persons, strangers as well as parties to the action; the other is a question between the parties and those in privity with them. See remarks in Brinsmead v. Harrison (in Exch. Cham.), L. R. 7 C. P. 547. On the last point the authorities are in a hopeless state of confusion. Cases taking the view that the former judgment, without satisfaction is a bar to the action against the joint wrongdoer are King r. Hoare, 13 M. & W. 494 ; Brinsmead v. Harrison, supra, both in C. P. and Exch. Cham.; Hunt v. Bates, 7 R. I. 217 ; Kenyon v. Woodruff, 33 Mich. 310. The opposite view is main- tained in Lovejoy v. Murray, 3 Wall. 1; Livingston v. Bishop, 1 Johns. 290 ; Shel- don V. Kibbe, 3 Conn. 214 : Elliott v. Hay- den, ] 04 Mass. 180. It is, however, admitted in • 555. 6 Rynes v. Wellington, 9 Beav. 579 ; " Camphellj?. Lucy, L. E. 2P. & D. 209. Allen v. M'Pherson, 1 H. of L. Cas. 191. * In the Goods of Coode, L. E. 1 P. & ' Priestman v. Thomas, L. R. 9 P. D. D. 449. 210. TITLE BY ACT OF THE LAW. 601 the testimony of witnesses, that the professed will was never duly executed as a matter of form, or that the testator had not capa- city to make it, or that it was obtained by fraud, duress, abuse of confidential relations, or undue influence. These various objec- tions may be presented either singly or in combination. Their force will be increased by the fact that the capacity of the testator was impaired, even though he had sufficient ability to make the will had he been left uninfluenced. The subject of " undue influ- ence " is largely a matter of equity jurisprudence, and its details will be found in treatises on equity, and in the reported decisions. The whole matter is thus one of evidence. A probate court, as organized at common law, has no jury. The judge, in such a case> in determining the validity of the execution of the instrument be- fore him, may follow the testimony of one subscribing witness when adverse to that of the other, or sustain the will though all of the witnesses testify that the requisite formalities were not com- plied with. The decision of the judge is not final, but is subject to review in an appellate court, according to local procedure. By the rules of the common law, the testamentary court has no power to determine the validity of a will of land. This is a matter for a court of general jurisdiction, at law or in equity, according to the nature of the question involved. This rule still prevails in New York. A decision by the surrogate, that the will is valid, considered as a will of personal property, will not be binding upon the same questions arising upon it, considered as a will of real estate, and the subject may be litigated anew in the proper court, without reference to the surrogate's decision, except so far as stat- ute law may provide otherwise.^ This is strikingly shown by the case of Clarke v. Sawyer. The will in that case had been declared valid as a will of personal estate, by the surrogate, and, then, on an appeal to the Chancellor, the decision was reversed, and the will was declared void.^ An independent suit was brought in equity, on the same testimony as had been used before the surro- gate, to have the will declared void as to real estate. Coming be- fore the assistant Vice Chancellor in the first instance, it was held to be valid, and the suit was dismissed.^ An appeal being taken to the same Chancellor, as in the previous case, this judgment was in its turn reversed,* and the reversal was sustained by the Court of Appeals.5 (a) This anomaly in the law could be removed 1 Clarke v. Sawyer, 2 IST. Y. 498. * Clarke v. Sawyer, 2 Barb. Ch. 411. 2 Clark V. Fisher, 1 Paige, 171. 5 o N. Y. 498, supra. 3 Clarke v. Sawyer, 3 Saudf. Ch. 351. (a) There is room for argument, that the of the decrees of surrogates in New York rule stated in the text respecting the effect where a will of real estate is sought to be 602 THE LAW OF PERSONAL PROPERTY. by establishing a probate court, with a jury, authorized to try issues both as to real and personal estate, as was done upon the establishment of the probate court in England.^ In the early law, wills could be proved in two ways ; either in the so-called " common form," or in " solemn form." In the first case, there was a merely formal proceeding. The will was un- contested, or parties interested were not cited. In such cases, notwithstanding a considerable lapse of time (in some instances nine years or more), the next of kin might call upon the executor to prove it (in solemn form) by witnesses, whose testimony they might contest. This distinction appears to have prevailed in New York until the Revised Statutes.^ These provide a substitute whereby, even after a will has been regularly admitted to probate, the next of kin of the testator may at any time within one year thereafter file allegations against the validity of the will or the competency of the proof. This clause goes much further than the common law, for it allows a rehearing after a contested will has been admitted to probate, without giving any reason. The con- testant has the right to try over again, upon the same or upon additional evidence, the very questions which were litigated on the first application for probate. The allegations must be filed before the year expires, and if so filed, the citations may be issued afterward.^ 1 20 & 21 Vict. c. 77, §§ 36, 37, 61 & 62, Probate causes are now determined by the Probate, Divorce, & Admiralty Divi- sion of the High Court of Justice, which was created by the " Supreme Court of Judicature Act," 1873 (36 & 37 Vict. c. 66). See, also, 38 & 39 Vict. c. 77, and other amendatory acts. probated, should not be applied in cases where probate has been refused by the sur- rogate, as the statute, giving the decree presumptive force merely, refers only to cases where the will has been admitted. Code of Civ. Pro. § 2627. Since a surrogate's court has now, in a proper case, jurisdiction over the probate of wills of real as well as personal property, it would seem that its determination should be conclusive, when the matter is prop- erly before the court, as to both classes of wills, except where made otherwise by statute. Moreover, the exception pre- scribed in § 2627, applying as it does only when a will is admitted, might be explained as the result of the regard of the 2 See 2 R. S. 60, § 30 (6th ed. Vol. 3, p. 61), repealed by Laws ^ of 1880, ch. 245. 3 See Code of Civ. Pro. §§ 2647-2653, for the existing law ; Will of Gourand, 95 N. Y. 256, 260. law for the rights of the heir, as opposed to the claims of the devisee. The right of trial by jury could be said to be waived, b)' those claiming under the will, in presenting it for probate, in the first instance, to the surro- gate's court. The contrarj' doctrine would seem to render the decision of the surrogate, in re- jecting a will of real property, of no effect whatsoever, as the statute does not make such a decree even prima facie evidence of the matters passed upon. See, gener- ally, Jarman on Wills, 3d ed. Vol. L p. 35, n. Anderson v. Anderson, 112 N, Y. 104 ; Boltou V. Schriever, 135 N. Y. 65 ; Matter of Borthclick. 141 N. Y. 166. I TITLE BY ACT OF THE LA.W. 603 VII. The constructioti, operation, and effect of a will. — Assum- ing that a will of personalty has been properly proved, the next inquiry is as to its meaning and effect. An important distinction must now be noticed between devises of real estate and bequests of personal property. The former do not necessarily involve a trust. Whether there is a trust or not will depend upon the character and nature of the devise. In the case of personal property the title vests in the executor, who acts as a trustee for the legatees or next of kin, and creditors. The distinction may be shown by an illustration. If a testator should give his house and lot directly to A., the latter would be the legal owner, and could at once exer- cise acts of ownership, such as enter into possession, or, if resisted, bring an appropriate action to obtain possession. On the other hand, had the same testator bequeathed a specific article of per- sonal property to a legatee, the ownership, as a matter of law, would remain in the executor, who would be a trustee for the legatee, and the executor alone could bring a possessory ac- tion for the recovery of the article. It is thus true that the law of executors has no application to real estate. Whatever control an executor may have depends upon the special lan- guage of the will, in which case, if it be sul^fiicient to create a trust, he acts as trustee, and not as executor. If some power, not amounting to a trust, be conferred upon him, his authority will depend on the law of powers. For the purpose of ascertaining the meaning of the language used by testators in the disposition of their estates, it is highly expedient that there should be a court of general jurisdiction, having power to interpret wills, or, in technical language, " a court of construction." The advantages of such a system are that rules of a general nature can be formulated and applied to the various cases as they arise. This court, as to all cases having the element of trust, is a court of equity. Still, the great point to be regarded in construing a will is the ascertainment of the testator's intention, and that is often expressed in inartificial lan- guage, while the circumstances of the case are frequently special, and not likely often to recur. Accordingly, only rules of a gen- eral nature can be laid down ; and decisions on special facts commonly have but little value as precedents. It is a convenient and well settled rule that executors and, legatees may commence a proceeding before a court of equity simply to obtain a construction of the will. This rule could not be applied to a will containing devises of real estate solely, un- affected by a trust.^ It is the presence of a trust which gives the 1 Post V. Hover, 33 N. Y. 593, 602 ; Bowers v. Smith, 10 Paige, 193. gQ4 THE LAW OF PEKSONAL PROPERTY. court jurisdiction. The executor or other trustee asks for the direction of the court in the management of the trust. On similar trrounds a legatee, or other beneficiary, may institute a like pro- ceeding to have his right or interest ascertained, so that he may obtain°such portions of the estate as he is entitled to.i The court, having thus obtained jurisdiction, may dispose of the whole controversy, even though the element of trust does not extend through all the provisions of the will.^ A devisee who claims a mere legal estate cannot maintain an action for the construction of a will, but must resort to strictly legal remedies.^ It has been held that such an action cannot be maintained if the will is clear. There must be some doubt as between the executor and some person interested in the provisions of the will.* Jurisdiction to construe the will to a certain extent is conferred by statute in New York upon the surrogate. It is, however, con- fined to personal property.^ Another statute, in New York,^ pro- vides that the validity, construction, or effect of a testamentary disposition of real property, situated within the State, may be de- termined in an action brought for that purpose, etc. This statute was recently applied to the inquiry whether a power created in one will had been duly executed by the donee in his will." (a) Some general rules of construction should now be considered. It is a general principle that the construction of a will of personal property depends upon rules prevailing in the law of the testator's domicile at the time of his death. This is but a rule of interpre- tation, designed to ascertain the testator's meaning, and may give way when there are sufficient grounds for believing that his inten- tion was to use the words in a different sense from that prevailing in his domicile. Accordingly, if he use technical words, having a definite meaning in the law of his domicile, it will be presumed that he used them in that sense. A similar view would be taken of words of weight, measure, etc. This principle would give way in case he 1 Wager v. Wager, 89 N. Y. 161. The suh nom. Horton v. Cantwell, 108 N. Y. law on this point is clearly and ably 255. stated in the opinion in this case. See ^ Code of Civ. Pro. § 2624. The limits also Greyston v. Clark, 41 Hun, 125. of this jurisdiction were considered in Jones 2 Wager v. Wager, supra, p. 168. v. Hamersley, 4 Dera. 427. 3 Weed V. Weed, 94 N. Y. 243. 6 Code of Civ. Pro. § 1866, taken from * Weed V. Cantwell, 36 Hun, 528; afFd, Laws of 1853, ch. 238. ^ Drake v. Drake, 41 Hun, 366. (a) The question of the validity of a Mellen v. Mellen, 139 N. Y. 210. This power of sale in a will does not affect the statute does not refer to the validity of " testamentary disposition " made by the the will making the disposition, but simply testator of his lands, so as to authorize to the validity of the disposition so made. an action for the construction of the will. Anderson v. Anderson, 112 N. Y. 104. TITLE BY ACT OF THE LAW. 605 used foreign legal terms prevailing in the country where he lived, or where the will was made, or was to be carried into effect, though not the country of his domicile. The presumption that he intended to adopt the sense prevailing in his domicile might then be rebutted. The fact that he used a foreign language would not be controlling. Thus, a native of Norway, domiciled in an American State, might write his will in the Norwegian language, without any thought of following Norwegian law; or an inhabitant of Lower Canada might use the English language without any intent to follow the English law.^ But if a testator, domiciled in one country, make a will •expressed in the technical terms of the law of a foreign country, so as to manifest an intention that it should operate according to that law, effect must be given, even in the courts of the domicile, to the meaning as found in the foreign law.^ In English and American law the great point is to ascertain the intention of the testator. This must be gathered from the instrument itself. In construing it, certain subordinate rules must be followed. Rule 1. The courts resort to established rules, under which par- ticular words standing by themselves have acquired a definite meaning, or, in other words, a legal signification, which the draughtsman of the will is presumed to know. This meaning has been for the most part ascertained by decision. Unless this mean- ing were followed, the meaning of the testator would be a matter of conjecture. The " intention " of tlie testator for which the court is seeking, is in general presumed to be found in prior legal decisions interpreting the words used. There will be room for un- certainty where the meaning of the words has not yet been fixed by decision, or where the decisions, instead of being uniform, are conflicting. Rule 2. The intention of the testator being the point to be regarded, the rule of construction must be the same in law as in equity. Rule 3. Technical words are not necessary. Popular words may be adopted. It is, however, highly expedient to use words whose meaning has been settled by authoritative decisions. When technical words are used, they are presumed to be employed in their legal sense, unless the context indicates the contrary .^ 1 McGibbon v. Abbott, L. R. 10 App. ^ Lord Chancellor Selborne, in a re- Cas. 653 ; explaining Martin v. Lee, 14 cent case, declares the qualification of this Moore, P. C. C. 142. rule as to the " context showing the con- 2 Bradford v. Young, L. R. 26 Ch. D. trary " to be a perilous and hazardous argu- •656, discussing Studd v. Cook, L. R. 8 ment in most cases where it is used, — an App. Cas. 577. See Dicey on Domicil, argument which seeks to escape from the pp. 306, 307, 308. necessity of grappling with the meaning of 506 THE LAW OF PEKSONAL PROPERTY. Rule 4. Wills of personal property for most purposes speak, not from the execution of the will, but from the death of the testator. This rule does not apply to words descrijytive of persons or things existing when the will was made. The expression " my son noio living," or " stock now standing, inscribed in my name," would be confined to a son living or to stock owned when the will was executed. 1 This rule affects specific legacies, to be hereafter considered. Rule 5. All the parts of the will are to be construed together, so as, if possible, to form a consistent whole. If there are irre- concilable expressions, the later ones usually prevail. Rule 6. Words are in general to be taken in their ordinary and grammatical sense, unless there can be ascertained a clear sig- nification to the contrary. If the same words are used more than once as applicable to the same subject, they will be presumed to be used in the same sense, unless there be something in the con- text to show the contrary. Rule 7. Where the language is plain, the inconvenience or absurdity of the provision supplies no ground for varying the construction. On the other hand, where the language is obscure, such considerations will be taken into account. There is a considerable number of subordinate rules designed to rectify mistakes and errors to a limited extent, to explain ambi- guities, to reconcile contradictions, to remedy defects of arrange- ment, and the like, so far as to aid the intention of the testator, but never to subvert or overthrow it. These may be classified as sub-rules. Sub-rule 1. Extrinsic (sometimes called parol) evidence is ad- missible to remove an ambiguity, or, in other words, to show, where the words are capable of two or more applications, which of them was intended. At one time this rule was confined to latent ambi- guities, — that is, to such as did not appear on the will, but were disclosed by external evidence. This distinction is now discarded, and any ambiguity, whether latent or appearing on the face of the will, can be removed by extrinsic evidence. For example, should the testator give a legacy to " George Gord," it would be equally explainable, whether the will itself disclosed that there were two persons of that name, or it was shown by extrinsic evidence.^ Sub-rule 2. Extrinsic evidence cannot be used to remove an particular words upon grammatical princi- l Jarman on "Wills, Ch. 10. pies, and endeavors to get into a region of 2 j)og y_ Needs, 2 M. & W. 129. The speculation as to the probable intent of subject is considered most satisfactorily in the testator. Giles v. Melsom, L. R. 6 this case. Eng. & Ir., App. Cas. 24, 31. TITLE BY ACT OF THE LAW. 607 uncertainty as distinguished from an ambiguity. For example, it cannot be used to fill a blank space with the name of a legatee nor with the property assumed to be intended. Nor could it be shown what individual member of a class of persons was intended, where the testator, in referring to the class, had not sufficiently identified the individual. Thus, a legacy to the " most worthy inhabitant" of a specified village, would present a case of incura^ ble uncertainty. Sub-rule 3. An error in description does not necessarily vitiate a legacy. There is a well-known maxim, — falsa demonstratio 7ion nocet. This means that where there is a sufficient description of the person or thing intended, an erroneous addition will not vitiate it.^ As applied to a will, this means that, if a description be false in part, yet if there be existing circumstances absolutely/ identify- ing the subject intended, the clause is valid. The test of the maxim is, that the description so far as it is false, applies to no subject, and so far as it is true, it applies to one only. This doc- trine cannot be pressed so far as to allow by oral evidence a dif- ferent legacy to be substituted in the place of one which, through mistake, could not take effect, but only to correct the mistake^ and then, after correction, carry the will into effect, if enough remains to indicate the testator's intention.^ Sub-rule 4. Words and clauses may be transposed, supplied, or rejected, where transposition or rejection is warranted by the con- text or general scheme of the will. This rule is not to be pressed to the extent of supplying by conjecture a sense which is in oppo- sition to the plain and obvious meaning of the language used, no matter how reasonable that sense may be. The great object of interpretation is to find out the meaning of the testator, even though that may turn out to be unreasonable or silly ; and when his meaning is plain, it must be followed at whatever cost to the will. So, too, words obviously miswritten may be corrected, as " with " for " without," and " or " for " and," or vice versa. 1 Doe V. Hubbard, 15 Q. B. 227, 241. to show how the mistake arose, and thus 2 The correct principle is shown in the give the legatee £1,250 out of the testa- case of Selwood V. Mildmay, 3 Ves. 306. tor's general estate. This ease, from mis- In that case a testator bequeathed the apprehension of its real scope, has some- proceeds of £1,250, "part of his stock in times received adverse criticism, as in the four per cent, annuities of the Bank of Miller v. Travers, 8 Bing. 244, and Doe v. England." He had no annuities of this Hiscocks, 5 M. & W. 363. The theory of class when the will was made, though he the decision was carefully and correctly had formerly owned some, which had, how- stated by Lord Langdale, M. R., in ever, been sold, and the proceeds converted Lindgren v. Lindgren, 9 Beav. 358, and into "long annuities." Evidence of these followed by him in a case presenting simi- facts was received, not to show that he in- lar facts. tended to give the "long annuities," but gQg THE LAW OF PERSONAL PROPERTY. Sub-rule 5. The court will regard the circumstances under which the will was made, — such as the state of the testator's property, or of his family, or, if material, of his friendships or acquaintanceships, with the view of placing itself as nearly as possible in the situation of the testator. This is not with the view of altering the will, but to place itself in the right posi- tion to understand his meaning. With all the light thus obtained, the testator's intention must be gathered from the will, and from that alone. Sub-rule 6. A testator must be presumed to have calculated on his will taking effect rather than the contrary, and to have intended to dispose of his whole estate. The burden of proof is accordingly upon one who alleges the contrary. Sub-rule 7. If the intention cannot operate to its full extent, it should operate as nearly as possible. This leads to the doc- trine of cy pres,^ — meaning the rule of approximating the intent, or getting as near to it as the rules of law will permit. It is peculiarly applicable to wills of real estate. Still, as wills of land and personal property are brought nearer together than formerly, there appears to be no good reason for excluding it, wherever it can reasonably be applied. It is resorted to frequently in the €ase of gifts to charitable uses. Further and more detailed rules of interpretation will be found in treatises upon wills and upon construction and interpretation. VIII. Legacies. — The general name given to a disposition of personal property in a will is a legacy. (1) Kinds of legacies. — Legacies may be generally classified as specific, demonstrative, and general. 1. Specific legacies. There has been much difference of opin- ion as to the true definition of a specific legacy. The correct view seems to be that it includes items, or a class of items, belonging to the testator, so described in the will as to be distinguished from all other items of property. It is not enough that the testator owns an article which answers the designation. Thus, a legacy of a gold watch would not be specific, even though the testator owned one, nor of ten shares in a designated bank, though he owned precisely ten shares. But if the words, the " gold watch I now wear," or " ten shares of stock now registered in my name," were nsed, the description would be so closely drawn as to exclude all others, and so make the gift specific. In other words, the test of a specific legacy is the language of the testator^ and not the ex- trinsic fact that he owned, when the will was executed, a chattel which in its nature corresponded to the thing bequeathed. 1 The words cy pres mean "as near." It is accordingly an elliptical expression. TITLE BY ACT OF THE LAW. 609 Lord Chancellor Selborne, acting as a jnclge in the House of Lords, has framed two definitions of a specific legacy. One is as follows. It is a bequest by a description which identifies a par- ticular subject then existing as intended to pass to the donee in specie} In a later case his definition is, something " which a tes- tator, identifying it by a sufficient description, and manifesting an intention that it should be enjoyed or taken in the state and condi- tion indicated by that description, separates in favor of a particu- lar legatee from the general mass of his personal estate." ^ This definition was approved by Lords Blackburn and Fitzgerald.^ Yet it seems doubtful whether the words, "to be enjoyed in the state and condition indicated," etc., are really a proper term in the definition. Suppose that the testator should bequeath one hundred shares of stock specifically described, and add the words, " if sold before my death, then the proceeds," would the last words deprive the bequest of its specific character ? It would seem not."^ The great feature of a specific bequest is, that a particular thing tlien owned by the testator is sufficiently de- scribed or identified as the subject of his gift. A good illustration is sach words as " all my stock in the Midland Railway Com- pany," ^ or, '■'■ my books and paintings.^ (a) The case of Tifft v. Poi-ter is important.'^ The testator owned 360 shares of the stock of a bank. He bequeathed simply 240 shares of stock in the bank to A., and 120 shares to B., without any description showing that they were the shares then belonging to him. The legacy was held to be general and not specific. A mere exemption by way of legacy of particular items from the general mass of the testator's estate does not make the be- quest of the rest of his property to another person specific. Thus, if he should bequeath to A. all the personal estate of which he should die possessed not consisting of money or securities for money, and give to B. what he had not bequeathed to A., the legacy to the latter would not be specific.^ Specific words fol- lowing general expressions will sometimes be regarded as simply 1 Giles V. Melsom, L. R. 6 Eng. & Jr. 6 Langdalei?. Esmonde, 4 Ir. R. Eq. 576. App. Cas. 24, 29 (1873). 7 8 N. Y. 516. To the same effect, see 2 Robertson v. Broadbent, L. R. 8 App. Bronsdon v. Winter, Ambler, 57; Wilson Cas. 812, 815 (1883). v. Brownsmith, 9 Ves. 180 ; Johnson v. 8 Id. 820, 821. Goss, 128 Mass. 433. Compare with Met- * See Palin v. Brookes, 26 W. R. 877. calf v. Framingham Parish, Id. 370. 5 Bothamley v. Sherson, L. R. 20 Eq. 8 Broadbent v. Barrow, L. R. 20 Ch. 304. D. 676 (C. A.). {a) Hood V. Haden, 82 Va. 588 ; Hayes 145 Mass. 346 ; Harvard Unitarian Society «. Hayes, 45 N. J. Eq. 461 ; Maybury v. v. Tufts, 151 Mass. 76. Orady, 67 Ala. 147; Tomlinson v. Bury, 39 QIQ THE LAW OF PERSONAL PROPERTY. explanatory or confirmatory of the general words, and in such a case the legacy will not be specific.^ A specific legacy is defined by high authority to be " a bequest of a specified part of the tes- tator's personal estate which is so distinguished." ^ Tliis definition was followed by one of the judges in Broadbent v. Barrow,, cited in the note, though declared not to be exhaustive.^ 2. Demonstrative legacies. By the term "demonstrative" is meant a designation of a particular fund from which the legacy is directed to be paid in such a way that if the fund should fail or be insufficient the legacy would still be payable, either in whole or in part, from the testator's general estate. A testatrix directed a number of legacies to be paid from a fund of <£ 6,000 which she assumed to belong to her. It turned out that she had only a life interest in the fund. The legacy was declared to be demonstrative.* In other words, the testatrix had pointed out a fund from which the legacy was to be paid, but did not limit the legatee to that fund.^ The legacy must accordingly be paid from the general estate of the testatrix, (a) Accordingly, a pecuniary legacy given with a particidar security is demonstrative.^ And wherever there is a fixed, independent, separate, and distinct intent to give the legacy, it will stand, though the fund out of which it is directed to be paid does not exist.'' Thus, where a testator bequeathed certain annuities, and directed that they should be paid out of the rents of his real es- tate, and the latter proved to be insufficient, it was held that the gift was demonstrative, and the deficiency must be paid out of the capital of the residuary personal estate.^ If, however, the words are positive that the legacy must be taken from a desig- nated fund, then the legacy is not " demonstrative," but must be confined to the fund so designated.^ Some of the leading practical distinctions between specific and demonstrative legacies should be noted. A specific legacy is not liable to " abate " in respect to other classes of legacies, a de- monstrative one is. A specific legacy is liable to "ademption," a 1 Fairer v. Park, L. R. 3 Ch. D. 309. 6 See Willox v. Rhodes, 2 Russ. 452 ; 2 Williams on Executors (8th Eng. Colville v. Middleton, 3 Beav. 570 ; Camp- ed.), 1163. bell V. Graham, 1 Russ. & M. 453. 3 Per LiNDLET, L. J., p. 684. ^ ]^r^^^ ^_ Copland, 2 Madd. 223. * Cunliffe v. Cunliffe, 23 W. R. 724. 8 p^get v. Hurst, 9 Jur. N. s. 906 ; 5 Fowler v. Willoughby, 4 L. J. (Ch.) Williams v. Hughes, 24 Beav. 474. 72, s. c. 2 Sim. & S. 354. 9 Coard v. Holderness, 22 Beav. 391. (a) See generally as to demonstrative Armstrong's Appeal, 63 Pa. St. 312 ; Ives legacies, Giddings i;. Seward, 16 N. Y. v. Canhy, 48 Fed. R. 718 ; Additon v. 365 ; Pierrepont v. Edwards, 25 N. Y. Smith, 83 Me. 551 ; Hutchinson v. Fuller, 128 ; Delaney v. Van Aulen, 84 N. Y. 16 ; 75 Ga. 88. TITLE BY ACT OF THE LAW. 611 demonstrative one is not. A specific legacy vests immediately on the death of the testator, a demonstrative one does not.^ The topics of " abatement " and " ademption " will be hereafter considered.^ 3. General legacies. This expression includes all legacies given in money simply, without any direction as to the fund from which payment is to be made, or in goods without definite descrip- tion. Thus, a legacy of a gold watch is a general legacy, as well as one of a thousand dollars. A legacy of stock (government bonds) will accordingly be specific or general according to the circumstance whether the testator intended to confine it to stock that he then had.^ Accordingly, a legacy of all the stock that the testator may be possessed of at the time of his decease is not specific but general.* In an English case a testator bequeathed as follows : "Xl,500 of my Egyptian 9 per cent, bonds to A.," and, again, " X500 Egyptian 9 per cent, bonds to B." The bequest to A. was declared to be specific, and that to B., general,^ and this even though the testator had such last-mentioned bonds at the time.^ One further distinction must now be noticed. This concerns a " residuary legacy." It is not uncommon for a testator, after naming certain legacies of a specific, demonstrative, or general nature, to add a clause to the effect that all the rest and residue of his personal property, or, it may be, both real and personal, shall go to specified persons. As to the personal property, the beneficiary is termed a "residuary legatee," and as to the real property, " a residuary devisee." A provision in a will for a resi- duary legacy^ in its broadest meaning, is a species of omnibus clause, designed to sweep in everything that has not been other- where effectually disposed of." There may, however, be a " residue " of a portion of an estate, as well as a general residue covering the entire estate. Again, a clause framed in residuary terms may be a specific legacy. Such words as the following, " all my personal estate in Jamaica to be remitted to England," ^ " all my personal estate at W.," 9 or, " all other of my personal estate and effects which I can by law be- queath to such an institution," ^^ are examples. So where in a residuary clause specific property is named, the bequest may be 1 MuUins V. Smith, 1 Dr. & Sm. 204 ; 6 See Tifft v. Porter, 8 N. Y. 516 ; Kirby v. Potter, 4 Ves. 748. Johnson v. Goss, 128 Mass. 4-33. 2 Seepos^, pp. 619-623. 7 Taylor v. Taylor, 6 Sim. 246. 3 Avelyn v. Ward, 1 Ves. Sr. 419, 425. 8 Nisbett v. Murray, 5 Ves. 149. * Parrott v. Worsfold, 1 Jac. k W. 594. 9 Sayer v. Sayer, 2 Vem. 688. But see Stephenson v. Dowson, 3 Beav. ^ Shepheard v. Beetham, L. R. 6 Ch. 342, where the contrary is held. D. 597. 5 Macdonald v. Irvine, L. R. 8 Ch. D. 101 (C.A.). 512 THE LAW OF PERSOXAL PROPERTY. specific as to that particular property, and general as to the rest.^ It is, however, a rule that where a testator uses general words, such as " all my property," or " all that I have power over," and then pi-oceeds to mention particular things, this enumeration does not change the effect of the general words, nor make the enumer- ated gifts specific.2 ^ partial residue carved out of a general one is not necessarily specific.^ A distinction must here be mentioned, applicahle to legacies in "general, between such as are cumulative and such as are sul)stitutionary. It sometimes happens that legacies of the same amount are given to the same person, either in the same instru- ment, or different instruments. The question then arises, whether the legatee is to have both, or only one. If he is entitled to both, the legacies are called cumulative. If only one, it may be because it is treated a.s a case of inadvertent repetition. In this case, the later legacy is called repetitious. It may be that the testator intended to put the later legacy in place of the former. It is then called substitutionary . The following rules prevail in determining whether legacies are cumulative. Rule 1. When two legacies are given in the same instrument, of the same amount, to the same person, the presumption is that only one was intended.* It is, however, a matter of intention, and the presumption may be rebutted by evidence to the contrary. Rule 2. When the legacies are found in different instruments (excluding the case of two codicils), without any qualification or statement of motive, the legacies are, in general, cumulative, and the legatee is entitled to both.^ It is not material whether the amounts be the same, or different.^ Rule 3. The construction adopted in Rule 2 may be repelled by internal evidence to the contrary, as where the same sum is given for the same cause.' Simple repetition, if exact, may be enough to repel the presumption.'^ The circumstances of the whole case must be regarded.^ Rule 4. In determining whether legacies are cumulative or sub- stitutionary, the object will be to ascertain the testator's intention, which in many cases can only be done by a close and critical examination of the different instruments.^'^ 1 Mills V. Brown, 21 Beav. 1. 6 Hurst v. Beach, 5 Madd. 351,58. - King V. George, L. R. 5 Ch. D. 627 ^ Osborne v. Duke of Leeds, 5 Ves. 369, (C. A.). 382 ; Benyon v. Benyon, 17 Ves. 34. 3 Robertson v. BroaJbent, L. R. 8 App. « Moggridge v. Tliackwell, 1 Ves. 464. Cas. 812. 9 Lyon v. Colville, 1 Colly. 449. 4 Garth v. Meyrick, 1 Bro. C. C. 30. w Guy v. Sharp, 1 M. & K. 589 ; Hem- 6 Baillie v. Butterfield, 1 Cox Eq. 392. ming v. Gurrey, 1 Dow & CI. 35. TITLE BY ACT OF THE LAW. 613 Rule 5. Where there are several gifts to a stranger, by different instruments, the presumption is that the gifts are cumuhitive. The presumption will be strengthened by a difference of motive in the two cases, or weakened or overcome by the statement by the testator of the same motive.^ The question is thus made to depend upon circumstances.- Rule 6. As between a first and second codicil, the court is not inclined to regard them as separate instruments for the purpose of making the legacies cumulative.^ Rule 7. A special question has arisen in separate legacies to servants. This is whether the word " servant " expresses a motive, or is simply descriptive, and used to identify the person. In the former aspect it will be regarded as repetitious ; in the latter, as cumulative.^ (2) Ownership or right of the legatee. — From this point of view, legacies are either vested or contingent, and absolute or conditional. Again, ownership may be qualitied or general. Vested and contingent legacies. — A legacy is said to be "■ vested " when the ownership is fixed in a particular person. A distinction must be taken between ownership and possession. A legatee may own a chattel, and yet not be entitled to immediate posses- sion. His interest would still be deemed to be vested. An im- portant class of cases is that where money is to be paid to a legatee on attaining a specified age, — e. g., twenty-one. Should he die before twenty-one, the legacy would in general belong to him, and so be transmitted by succession to his representatives, {a} If the words indicate that the money is to belong to him if he attains twenty-one, the legacy is contingent, and if he dies before that age, nothing vests, the money simply remaining a part of the testator's estate. If the income is directed to be applied to the support of the legatee until he attains twenty-one. and then the principal is to be paid over to him, and, in case he dies under that age, to another, the legacy is deemed to be vested at the moment of the testator's death, though liable to be divested by the death of the beneficiary before the prescribed time. He would thus own the entire income during his life, though he died under the speci- fied age.-^ 1 Suisse V. Lowther, 2 Hare, 424. * Roch r. Callen, 6 Hare, 531 ; Wilson 2 Eussell V. Dickson, 4 H. of L. Cas. r. O'Leary, L. R. 7 Ch. App. 448. 293 ; Tuckey v. Henderson, 33 Beav. 174. ° In re Peek's Trusts, L. R. 16 Eq. 221 ; 3 Tatham v. Drummond, 10 Jur. x. s. Bolding v. Strugnell, 45 L. J. (Ch.) 208. 557. (a) Warner v. Durant, 76 X. Y. 133 ; of Mahan, 9S Id. 372 ; Goebel v. Wolf, 113 Smith r. Edwards, SS Id. 92 ; Bnshnell v. Id. 405. Carpenter, 92 Id. 270 ; Matter of Accounts 514 THE LAW OF PEKSONAL PROPERTY. A different rule is applied where the legacy is made a charge upon the testator's land. In that case, if the money is to he i^aid on the attainment of a specified age, and the beneficiary dies before that age, the legacy fails. It is said to lapse. The reason of the distinction is, that the charge is prejudicial to the testator's heirs, and the rules of law favor those who claim the real estate by succession. The word " vested," when used in respect to owner- ship, may mean either the vesting of a defeasible interest, or of one that is absolute and indefeasible. The context may be resorted to in order to show what is intended.^ Only general rules can be stated in this connection. A great number of decisions turn upon the special words used by the testator, and are to be found collected in the digests, and in the treatises on wills. The doctrine of lapse is to be noticed. The meaning of " lapse " is the effect of the death of a legatee before the testator, or after the testator, but before the time fixed for the vesting of the legacy. The expression is more usually applied to the first case. It is a general rule that if there be a legacy to A. of a chattel simply, and without qualifying words, and he die before the testator, the legacy " lapses," — that is, has no effect. The testa- tor's property is to pass by succession as though there had been no such legacy. This rule is now modified by statute in England, and a number of our States. The New York statute provides that if the legatee (or devisee) be a child or other descendant of the testator, and die before the latter, leaving a child or other descendant, the legacy does not lapse, but belongs to the child or other descendant of the devisee or legatee.^ It is common, in a will, to find a provision that if a particular legatee die, his share shall go to others. The regular construction is, that the testator meant die in his (the testator's) own life-time. Accordingly, in a case where the testator and legatee died at the same instant, the clause did not apply, and the substituted per- sons took nothing.^ (a) The point in the case is, that the legacy 1 Arinytage v. Wilkinson, L. R. 3 App. See also Peaid v. Morton, L. R. 25 Ch. D. Cas. 355. It is a settled rule that courts 394 ; Vanderzee v. Slingerland, 103 N. Y. lean towards vesting, and when property is 47. The same rule applies where the words once vested, will not divest it without "die without issue" are used, though in strong grounds. this last case slight circumstances may varv 2 2 R. S. 66, § 52 (8th ed. p. 2549). . the construction. Id. 3 Elliott V. Smith, L. R. 22 Ch. D. 236. (ffl) The rule that the words " die with- Sullivan, 136 Id. 227. Nor where the out issue," refer to death during the life- language of the will evinces a contrary time of the testator, would not apply if intent. Mead v. Maben, 131 N. Y. 255 ; the first legatee took a life estate. Fowler Matter of Denton, 137 Id. 428. V. Ingersoll, 127 N. Y. 472 ; Mullarky v. TITLE BY ACT OF THE LAW. 615 does not fail unless it is shown that the legatee dies before the testator. It is a fatal defect if the vesting of the legacy is to take place at a period so remote as to transgress the " rule against perpetuities." This is a positive rule of the common law, that legacies must vest in ownership within the compass of a specified life, or lives, in being at the testator's death, and an additional period of twenty- one years, and in case of unborn children, the usual period of gestation. The period of twenty-one years may be allowed as an absolute period, without reference to lives. Thus, a person might make a charitable bequest to a corporation to come into existence within twenty-one years after his death.^ When this rule is transgressed, the transgressive provision is void as being opposed to public policy ; all provisions built upon it and made to take effect if it does not, are void. There is a rule called the doctrine of acceleration which may sometimes be in- voked when a primary provision is void, to bring up a substi- tuted provision, as it were, to the death of the testator. The practical result is that the will is read as if the primary provision were absent. This rule cannot be applied to the case now under consideration.^ The case just mentioned must be distinguished from that of alternate limitations, for in this case, if one is too remote and the other is not, and the latter takes effect, it will be valid.^ An instance is, a bequest to A. for life, and after her death to be divided between her children when, or if, they attain twenty-seven, and in the event of her not bearing any child, to B. If she have no child, the gift to B. will be valid, since the event on which his interest is to vest, is sure to be ascertained within a single life. On the other hand, if A. had borne children, the legacy could not vest in them, as it would be too remote, for it might be requisite to wait for one life and more than twenty-one years in addition, to determine whether the legacy would vest."* The common-law rale is modified in New York and in some other States so as to narrow the power to postpone the vesting. It is confined to tivo lives in being at the testator's death, and the 1 Cadell V. Palmer, 1 CI. & F. 372. with a gift over in case he shall have no 2 Beard v Westcott, Turn. & Russ. 25; son who shall attain the age of twenty- Palmer V. Holford, 4 Russ. 403 ; Re five years, the gift over is void for remote- Thatcher's Trusts, 26 Beav. 365 ; Rose v. ness. On a gift to A. for life, with a gift Rose, 4 Ahb. N. Y. App. Dec. 108. . over if he shall have no son who shall 3 Cambridge v. Rous, 25 Beav. 409 ; take priest's orders in the Church of Evers v. Challis, 7 H. of L. Cas. 531 ; England, the gift over is void for remote- Schettler v. Smith, 41 N. Y. 328. ness ; but a gift superadded, ' or if he 4 Jessel, JL R., puts the following shall have no son,' is valid, and takes illustration in Miles v. Harford, L. R. 12 effect if he has no son." Ch. D. 691, 703: "On a gift to A. for life. ^^^p^ THE LAW OF PERSONAL PROPERTY. period of twenty-one years is cut off, except in the single case, relating to real estate, of the first taker being an infant and dying during his minority. The general principles are quite the same as in the common law. Absolute and conditional legacies. — This is a distinction that arises in the case of vested legacies. A legacy is said to be absolute when it is without any restriction or qualification whatever. This is the common case. It is illustrated by the o-ift of a gold watch, a sum of money, and the like. It is said to be conditional or defeasible, when some act or event may with- draw it from the legatee. In each case the legacy is vested, but in the one it cannot be divested, and in the other it can be. Conditions in law are of two kinds, — precedent and sub- sequent. A precedent condition must be performed before any title or right vests; a subsequent condition, if not performed, divests a right or interest which has already vested. A legacy upon condition precedent resembles a contingent legacy. In considering such a conditional legacy, one's mind is directed to the fact that the legatee had something to do to cause it to vest, while in a contingent legacy the uncertainty consists in the happening or not happening of a prescribed event. A good instance of a conditional legacy of this form is that of one given to an executor by virtue of his office, or for his care and trouble. A gift to one who is executor of the testator is not necessarily conditional. It may be made simply on grounds of friendship or affection. The first inquiry, then, will always be, whether the gift is made to him in that character and for repre- sentative reasons. If not, the legacy is absolute. What it is, is a matter of intent, depending upon all the circumstances.^ There may be a presumption that a legacy given to an executor is given to him in that character.^ It may, however, according to one case, be rebutted by circumstances, — as, for exam))le, where there are two executors, — if there be a great inequality in the respective bequests to them.^ The same conclusion was arrived at where the property was given to a tenant for life, and after his death the bequest to the executor was payable.* If the legacy is given by virtue of office, it does not vest if the executor does not prove the will, even though by bodily age and mental infirmity he is incapable of proving it,^ or is pre- vented by illness.^ Still, if being at a distance he take steps to 1 Compton V. Bloxham, 2 Colly. 201. * In re Reeve's Trusts, L. R. 4 Ch. 2 Stackpoole v. Howell, 13 Ves. 417. D. 841. 3 Jewis V. Lawrence, L. R. 8 Eq. 5 Hanburj^ v. Spooner, 5 Beav. 630. 345. 6 2>g Hawkin's Trusts, 33 Beav. 570. TITLE BY ACT OF THE LAW. 617 prove it, manifesting his intent, and die before it is proved, the legacy may be payable.^ It has, however, been held that if the executor at first decline to serve, and in the mean time an agent be appointed to take charge of the estate, and subsequently the person named as executor qualify, there should be deducted from his legacy the expenses fairly attributable to the appointment of the agent.^ In such a case of renunciation and retraction, interest on the legacy only runs from the time of proving the will;^ A legacy to an executor of this sort is not a contract, but is a true legacy, and subject to the rules governing legacies.'* Qualified oivnership in legacies. — A testator may give a legatee a qualified instead of a complete ownership, such as a life interest. The legacy may be either of specific articles or a general residue. In the gift of specific articles a distinction must be taken between such articles as cannot be used without consuming them, and those wliich can be so used. In the former class of cases a gift of a partial interest is, in substance, a gift of the whole, since otherwise the legacy would be practically inoperative. But in such cases, if there were a direction to sell, there might be a life interest given in the proceeds. If there be a residuary gift of perishable articles to persons in succession, there is a presump- tion that the testator intended that the property should be sold and con\erted into permanent property. This would mean in England conversion into the consolidated government debt (con- sols). This is known as the rule in Howe v. Earl of Dartmouth.^ In this country the investment would be made in such securities as were sanctioned by the court in each State. This presumption may be rebutted by evidence that the testator intended that the life tenant should enjoy the goods in their original form (m specie).^ The general rule is that the person having the ultimate interest may have the residue ascertained and converted into the authorized securities within a year.'^ If this is not done, but the estate is realized at some later day, it will be necessary to ascertain retrospectively what was the residue at the end of the 1 Lewis V. Mathews, L. R. 8 Eq. 277. of intent on the testator's part will pre- 2 Morris v. Kent, 2. Edw. Ch. 175. vent the application of the rule in Howe 3 Angermann v. Ford, 29 Beav. 349. v. Earl of Dartmouth. See Blann v. Bell, * Att'y-Gen'l v. Robins, 2 P. Wms. 23, 2 De G. M. & G. 775 ; Vachell v. Roberts, 25 ; Duncan v. Watts, 16 Beav. 204 ; 32 Beav. 140. Li re Sewell's Estate, Debuly v. Eckett, 4 Jur. N. .s. 805. L. R. 11 Eq. 80 ; Wilday v. Sandys, 6 Howe V. Earl of Dartmouth, 7 Ves. L. R. 7 Eq. 455 ; Boys v. Boys, 28 Beav. 137. 436. ^ Morgan v. Morgan, 14 Beav. 72. ^ Wightwick v. Lord, 6 H. of L. Cas. The question thus becomes one of con- 217. struction of the will ; slight indications gig THE LAW OF PERSONAL PROPERTY. year, attributing a due proportion to capital and a due proportion to interest.^ Where the legacy is specific, the life tenant may in general enjoy it in its original form. An example is the gift of a law library to be used for life, while the books themselves, subject to the life inter- est, are bequeathed to another. In this case the life tenant would regularly give the person in remainder a list or inventory of the chattels bequeathed. If any unnecessary injury were done them, or threatened, a court of equity would intervene, and require security. Important questions arise as to the right of a life tenant to dividends on stocks bequeathed by the testator. It is a general rule that dividends declared after the testator's death, though the profits were made in his lifetime, form part of the income and not of the body or corpm of his estate.^ (a) So, if shares be settled on A. for life, and after his death on another, any dividend declared before A.'s death, and payable afterwards, belongs to A. This is on the ground that the declaration of the dividend separates it from the mass of the estate, and it becomes a debt.^ There is no fixed rule that surplus profits, when divided by means of an extraordinary dividend, shall be treated as capital as between the tenant for life and the succeeding owner. It is for the company, if they have power to increase the capital, to say whether the profits shall be treated as capital or not.* Accord- ingly, new shares of corporate stock representing surplus property, and distributed to stockholders, would not belong to the life tenant. In such a case the surplus is retained by the corpora- tion and used in its business.^ (J) It has been sometimes held that the court will look into the question of the source of the 1 Wightwickw. Lord, H. of L. Cas. 227. some cases to the contrary (Clarkson v. 2 Bates V. Mackinley, 8 Jur. n. s. Clarkson, 18 Barb. 646, and Van Doven 299. V. Olden, 19 N. J. Eq. 176), but these 8 Wright V. Tuckett, 1 Johns. & H. do not appear to proceed on correct prin- 266. ciples. The case of Sproule v. Bouch, * Sproule V. Bouch, L. R. 29, Ch. D. puts the whole subject on satisfactory 635 (C. A.). grounds, in making the sole test the act of " Ex parte Brown, 14 R. I. 371 ; the corporation in determining whether Minot V. Paine, 99 Mass. 101. There are the surplus profits shall be capital or not. (a) Matter of Kernochan, 104 N. Y. is believed that the rule more commonly 618. recognized in the United States is "to (b) See also Daland v. WilliamSs, 101 give all surplus earnings, in whatever Mass. 571 ; Rand v. Hubbell, 115 Mass. form distributed, to the life tenant," 461 ; Gifford v. Thompson, Id. 478 ; Gilkey v. Paine, 80 Me. 319 Richardson Davis V. Jack.son, 153 Mass. 58; Sug- y. Richardson, 75 Id. 570 ; Riggs v. Cragg, den V. Alsbury, L. R. 45 Ch. D. 237 ; 26 Hun, 89 ; Earp's Appeal, "^28 Pa. St. 7)1 re Barton's Trusts, L. R. 5 Eq. 238. 368 ; Smith's Estate, 140 Pa. St. 344 j Notwithstanding the views of the text, it Woerner on Administration, § 457. TITLE BY ACT OF THE LAW. 619 profits, discriminating between those that are recent and such as are the accumulations of past years. There would appear to be no solid basis for such a distinction. As said recently in a case of high authority, " profits retain their character of income until they are converted into capital." ^ (a) There has as yet been no authoritative adjudication on the point in New York. A further question arises as to apportionment when periodical payments are to be made to the life tenant, and he dies before the day of payment arrives. By the common law, if the pay- ment is of interest, as that accrues from day to day the life tenant, or his representatives, is entitled to interest to the day of his death. But in the case of annuities or dividends not yet payable at the life tenant's death, there is no apportionment.^ This rule included dividends paid upon government securities as well as in incorporated companies. The rule has been changed in England by statute.^ The effect of the statute is that if a com- pany is so constituted that its dividends are declared at fixed periods, as soon as one is declared it is apportionable.* It has also been held that the statute applies to occasional dividends.^ There is a similar statute in New York and in some other States, — for example, Massachusetts.^ Both in the English and New York statutes the rule applies to wills made before the enact- ment of the statute, if the testator die afterwards. (3) Incidents to legacies. — There are several rules of a peculiar nature governing legacies, which may be grouped together under this head. These are : 1. Abatement. 2. Ademption. 3. Satis- faction. Reference will also be made to special rules governing legacies to one's debtor. 1. Abatement. This word refers to the rule of priority or equality in payment when the testator's net estate is insufficient to pay all his legacies. Such an insufficiency may exist either at the testator's death, or may occur afterwards. It may be by the 1 Sproule V. Bouch, L. R. 29, Ch. D. those iianied by the testator. Matter of 635, 655 ; Price v. Anderson, 15 Sim. 473 ; Gerry, 103 N. Y. 445. In re Hopkins' Trusts, L. R. 18 Eq. 696. 2 Warden v. Ashburner, 2 De G. & There is another class of cases where Sm. 366. money is invested on interest, and the ^ 4 ^ 5 "Wni. IV, c. 22, § 2. interest etc., is given to one for life. If on a * Re Maxwell's Trusts, 1 Hem. & M. sale a surplus beyond the original invest- 610. ment is produced, the life tenant has no ^ Carr r. Griffith, L. R. 12 Ch. D. 655. share in it, whatever may be the rule as ^ In New York, Laws of 1875, ch. 542; to stock in incorporated companies. This Rev. St. (8th ed. ) p. 2563 ; Massachusetts is the rule, though securities are selected Pub. St. ch. 136, § 25 ; Adams v. Adams, by all the parties in interest differing from 139 Mass. 449. (a) See Bouch v. Sproule, L. R. 12 App. Cas. 385. 620 THE LAW OF PEESONAL PEOPERTY. inisfortmie or by the fault of the executor. Waste of assets thioimli bis misconduct is technically termed a devastavit. The o-eneral rules of priority may be superseded by the words of the will, since the testator has the power to direct that in case of deficiency, certain legacies shall be paid before others. In con- sidering the general rules of priority the different kinds of legacies will be contrasted. A. Residuary legacies, as contrasted with such as are specially named. It is a general rule that residuary legacies must abate rather than particular ones.i This rule would not apply if a fund, assumed to equal a fixed amount, was given in the first instance, in part, in specified sums, to A., B., and C, and the " overplus" to D. This would simply be a mode of dividing the fund ; and if there was a deficiency, all the legacies would abate equally. 2 This statement does not extend to a case where the fund is uncertain and indefinite.^ B. Demonstrative legacies as contrasted with such as are pecu- niary. A demonstrative legacy has the preference so far as the designated fund from which it is to be paid is concerned. That being exhausted, there is no preference over other legacies as to the general assets.^ If the specified fund fail altogether, the legacy is, in fact, a general one." C. Specific legacies, as contrasted with demonstrative and other legacies. If the subject of a specific legacy be still subsisting, it is to be paid, even though nothing is left for the pecuniary legatees.^ This rule will be applied to a demonstrative legacy as long as the fund pointed out is not exhausted. Where there are two or more specific legacies, and the estate is not sufficient to pay them, they must, as between themselves, abate proportionally. If one legatee be insolvent, the amount that should have been paid by him in the discharge of debts, etc. must be made up by the others, the genei-al estate being insuffi- cient.' It is a general rule, that where there is a number of lega- cies belonging to the same class, such as several specific legacies, or several pecuniary, they abate ratably, unless there is clear and conclusive proof that priority was intended.^ (a) 1 Purse V. Snaplin, 1 Atk. 414, 418. 5 Roberts v. Pocock, 4 Ves. 150. 2 Page V. Leapingwell, 18 Ves. 463. 6 Driukwater v. Falconer, 2 Ves. Sr. 3 Baker V. Farmer, L. R. 3Ch.App.537. 623. * Sellon V. Watts, 9 W. R. 847 ; Mul- 7 Connolly v. Farrell, 10 Beav. 142. lins V. Smith, 1 Dr. & Sm. 204. 8 Miller v. Huddlestone, 3 M. & G. 513. (rt) There is an exception to this rule Co. v. Bryant, 52 Conn. 311. Such a where the legacy is given for a valuable legacy, though general, takes precedence consideration, — e. g., in lieu of dower, of specific as well as general legacies. Borden u. Jenks, 140 Mass. 562 ; Security Borden v. Jenks, supra. TITLE BY ACT OF THE LAW. 621 The final point to be noticed is the effect of payment or ap- propriation by the executor to pay some of the legacies, where there is a subsequent waste {devastavit) by him, causing a defi- ciency. It has been held that legatees who may have received their amounts, cannot, in such a case, be called on to contribute, there having been no original deficiency in the estate itself.^ But where there is merely a setting apart, or appropriation, there must have been a consent by the legatees to the appropriation, when the fund is uncertain in amount, or indefinite.^ 2. Ademption. A legacy is said to be " adeemed " when, owing to some change in the subject-matter, or to some act of the testator, it is not payable to the legatee. Ademption is for the most part applicable to specific legacies, but it may appertain, under special circumstances, to a general legacy, as where ad- vances are made by the testator to the legatee on account of it, after the execution of the will, and before his death. Ademption is sometimes likened to a revocation. This view is not strictly correct, since it may take place by a mere accidental destruction of the chattel bequeathed, as well as by an intentional disposition of it, — e. ^., a sale. The fundamental idea of a strict ademption seems to be that there has ceased to be any subject-matter on which the testamentary words can act. Recurring to the ademption of specific legacies, if the subject of the bequest does not remain in specie at the time of the testator's death, it is adeemed without considering the testator's intent {animus adimetidi}.^ Accordingly, if the specific goods are lost at sea by shipwreck, there is an ademption. If they were insured, the insurance money would not pass to the legatee.'* A specific legacy of stock is adeemed by a sale of it.° So if the testator bequeathed long annuities, and sold them, purchasing new annu- ities, differing only in the fact that they terminated a quarter of a year sooner.^ If the stock (government bonds) be con- verted by statute, — as, for example, where an option is given the holder to have the bonds paid off or the interest reduced, and he chooses the latter, — there is no change in the identity of the debt, and no ademption." A direction by the testator to an agent to sell stock specifically bequeathed, followed up by a sale after the testator^ deaths is not an ademption.^ 1 Knight V. Knight, 15 L. J. n. s. ^ Ashburner v. Macgnire, 2 Bro. C. C. Ch. 363. 108 ; Humphreys v. Huraphreys, 2 Cos. 2 Baker v. Farmer, L. R. 3 Ch. App. Eq. 184. 537. 6 Pattison v. Pattison, 1 M. & K. 12. 3 Barker v. Rayner, 5 Madd. 208 ; "^ Browne v. M'Guire, Beatty, 3^38 ; Hertford v. Lowther, 7 Beav. 107. Oakes v. Oakes, 9 Hare, 666. * Durraut v. Friend, 5 De G. & Sm. 343. ^ Harrison v. A.«her, 2 De G. & Sm. 436. p^22 THE LAW OF PERSONAL PROPERTY. If one partner bequeath to another all his share in the profits up to a specified date, and subsequently draws out the profits, there will be an ademption.^ So a bequest of a debt is adeemed, if paid cither voluntarily or by compulsion, to the testator during his nfetime.2 Some early cases drew a distinction between voluntary and compulsory payments, regarding ademption as a matter of intention. These are not now followed, the true test being whether the subject-matter exists in specie. So a release in a will of interest due on a debt due the testator from the legatee, is e(iuivalent to a specific legacy of the interest ; and if the debt be [laid to the testator in his lifetime, the legacy is adeemed.^ Other cases upholding ademption by payment of a debt bequeathed will be found in the note.* This doctrine is not applicable to a demonstrative legacy, since the particular fund referred to is not of the essence of the legacy. If that fail, it is still, as has been already stated, a general legacy.^ A specific legacy described in the :vill as being in a particular place, is adeemed by removal from that place. Thus, if " furni- ture in house No. 1 " be bequeathed, there will be an ademption if it be removed to Nos. 3 or 5, though not if the removal be tempo- rary, or for a special purpose.^ Wherever a sale or other like act regularly causes ademption, the principle will not be extended to a sale, etc., by one having no mental capacity to act, nor by a person having no authority to sell." If, however, the property of an insane testator were sold under order of a court having jurisdiction to make the order, the legacy would be adeemed.^ A change of investment might be so complete and radical as to constitute an ademption,^ but not a mere change in the form of investment, such as placing it in the name of a trustee for his use instead of his own name, nor, perhaps, a sale where he had reserved a valid and enforceable option to have the thing sold returned to him.^*^ A bequest having been once adeemed, is not restored by a subsequent confirmation of the wilL^^ 1 Aston V. Wood, 43 L. J. (Ch.) 715. cer, 21 Beav. 548 ; Blagrove v. Coore, 27 2 Stanley v. Potter, 2 Cox Eq. 180. Beav. 138. See also Innes v. Mitchell, 6 Ves. 461 ; ^ Jenkins v. Jones, L. R. 2 Eq. 323 ; Barker v. Rayner, 2 Russ. 122. Taylor v. Taylor, 10 Hare, 475. He Kitchen, 3 Sidney v- Sidney, L. R. 17 Eq. 65. 31 L. T. 642. * Sidebotham v. Watson, 11 Hare, 170; 8 jones v. Green, L. R, 5 Eq. 555 ; Phillips V. Turner, 17 Beav. 194 ; Fryer In re Freer, L. R. 22 Ch. D. 622. V. Morris, 9 Ves. 360. 9 Gardner v. Hatton, 6 Sim. 93. 5 Campbell v. Graham, 1 Russ. & M. lo See Collison v. Curling, 9 CI. & F. 88, 453 ; Clark v. Browne, 2 Sm. & G. 524. aff'g s. c. 4 M. & C. 63. The deci.sion in '^ Heseltine v. Heseltine, 3 Madd. 276 ; these cases seems to involve the principle Colleton V. Garth, 6 Sim. 19 ; Houlding v. stated in the text. Cross, 1 Jur. n. s. 250 ; Spencer v. Spen- " Cowper v. Mantell, 22 Beav. 223. TITLE BY ACT OF THE LAW. 623 The remaining case to be noticed, is that of any legacy, whether specific or otherwise, which is advanced or given by the testator before his death, to the legatee. The rule is, that where a testator gives a legacy for a particular purpose, and afterwards accomp- lishes the purpose himself, the legacy is satisfied. The act of providing one's wife with ready money at his decease, so that she could control it without application to the executors, would not come within the rule.^ Questions of this kind frequently arise between parent and child, presenting the inquiry as to double portions in two aspects, — one where there is first a marriage settlement providing for chil- dren of the marriage, and afterwards provisions b}^ will, and the converse case of provisions being first made by will, and afterwards in some other form, — e.g., a marriage settlement. It is the last of these cases which is now under consideration, and which is the simpler of the two. There is a general presumption of law against double portions, and the difficulty lies in applying this presumption to particular cases as they arise. The whole subject received dis- cussion and clear elucidation in the case of Lord Chichester v. Cov- entry.2 The facts of that case presented an instance of a marriage settlement preceding a will, but the whole subject was considered, and the discussion is highly valuable as to the present matter. There is a distinction in such cases between ademption and satisfaction. Ademption applies to the case where the legacy precedes the settlement ; satisfaction, where the settlement pre- cedes the legacy. In the first case, the legacy is considered to be " taken out " of the will (adeemed) by the subsequent advance- ment. Satisfaction is the more appropriate name for the sec- ond case, as the settlement had already created a claim. It has been defined to be the donation of a thing with the intention that it is to be taken, either wholly or in part, in extinguishment of some prior claim of the donee.^ The presumption against double portions may be rebutted by evidence to the contrary, (a) Intrinsic evidence may be found in the respective instruments. Thus, where the two provisions are of the same nature, or differ but slightly, the presumption is against the intention to create double portions. Otherwise, if the provisions are of a different nature.* Ademp- tion may be more easily inferred than satisfaction, since the testator has unlimited power to carry it into effect, while in 1 Pankhurst v. Howell, L. K. 6 Ch. App. Tudor, 382, 6th ed. note to Chancey's 136. Case). 2 L. R. 2 H. of L. Cas. 71. * Weall v. Rice, 2 Russ, & M. 251, 3 2 Leading Cases in Equity (White & 267. (a) See Lacon v. Lacon [1891], 2 Ch. 482. g04 THE LAW OF PERSONAL PROPERTY. satisfaction the consent of the party having the claim must be obtained before something else can be legally substituted m its nlacc. The case of ademption by payment before the testator's death may be provided for in the will itself. This case is still stronger than those already discussed, since there is positive evidence of an intent to adeem, instead of a mere presumption.^ 3. Satisfaction. This topic has been partly anticipated in pointing out the distinction between it and ademption. The fundamental idea here is, that the legatee has a true claim against the testator, and a presumption is urged that the legacy satisfies the debt. This subject will be further considered under two general divisions : first, satisfaction in general, and second, as between parent and child, including "double portions." First. Satisfaction in general. It is a general rule of law, as well as of good sense, that a legacy " imports a bounty." It is apparently intended as a gift, and not as payment of debts. Still, it is equally plain that, if the debtor, in making a provision in his will in favor of a creditor, makes it sufficiently clear that he intends, through the form of a legacy, to discharge a debt, his intent must be carried out. Between these two propositions, there is debatable ground. An inquiry arises as to what shall be the presumed intent of the testator in case the will is silent when he gives a legacy to a creditor perhaps equal to or greater than the amount of the claim. The courts have, by force of decision, estab- lished a set of rules, to some extent artificial, which will be stated. Rule 1. A legacy of the same nature as a debt, equal or greater in amount, without special qualification, will be presumed to be given in satisfaction of the debt.^ Under this rule, land is not a satisfaction for money, nor money for land, not being of the same nature. Land should be given for land, and personal estate for personal estate.* Rule 2. Slight circumstances are laid hold of by the courts to overcome the presumption, (a) A court of equity leans against satisfaction of debts by legacies.^ The whole doctrine would 1 Lord Chichester v. Coventry, supra, "satisfaction" and "ademption" are used p. 87. The case of Earl of Durham v. somewhat indiscriminately, though Denio, Wharton, 3 CI. & F. 146, is a leading in- J., in his opinion, says that "ademption" stance of ademption ; that of Lady Thynne is the most significant, p. 40. V. Earl of Glengall, 2 H. of L. Cas. 131, of ^ Bengough v. Walker, 15 Ves. 507 satisfaction. 512 ; Chaplin v. Chaplin, 3 P. Wms. 245. 2 Langdon v. Astor's Executors, 16 * Bellasis v. Uthwatt, 1 Atk. 426, 428. N. Y. 9, 33-57. In this case (one of 5 Lady Thynne v. Earl of Glengall, 2 ademption of a general legacy), the words H. of L. Cas. 131, 153. (a) Sheldon v. Sheldon, 133 IST. Y. 1. TITLE BY ACT OF THE LAW. 625 now be rejected if it were new, and the courts will not extend it beyond its precise limits.^ Rule 3. A legacy in satisfaction of a debt must be of a fixed amount, and not uncertain. It must be absolute, and not contin- gcnt.2 A gift of a residue cannot be a satisfaction of a debt, as the amount is in its nature uncertain, and may be less than the debt.^ So a debt is not even partially satisfied by a legacy of a less amount,* nor by one payable on different terms from the debt.^ Rule 4. Any special language in the will may introduce a dif- ferent principle from the presumption which prevails when the will is silent. Under this rule, a legacy of a residue may show the intent of the testator to be a direction to imy a debt, and so be carried out pro tanto, if the residue be not equal to the debt.^ So, if the testator should use the words " after the payment of my debts,'^ and then give legacies, among others, to a creditor, the special words would preclude the presumption that he intended the legacy to be in satisfaction of the debt." (a) Again, if a legacy be given in full satisfaction of all claims that the legatee may have against the testator, the word " claims " cannot be construed to include a claim belonging to the legatee's wife.^ If the testator, by mistake, describes the debt as larger than it is in fact, and there is no evidence on the face of the will of an intent to give the larger sum, except as being the amount of the indebtedness, only the amount actually due can be enforced.^ Rule 5. Parol or extrinsic evidence is admissible, both to show that the legatee was a creditor, and to fortify the presumption of satisfaction, ^0 as well as to rebut it,ii but not to alter the terms of the bequest. A legacy in satisfaction of all claims of A. could not be shown by such evidence to mean claims which A. held as executrix.^^ Second. Satisfaction, as between parent and child. This case presents the subject of " double portions," not as in the case of 1 Richardson v. Greese, 3 Atk. 65, 68 ; 9 Wilson v. Morley, L. R. 5 Ch. D. Hassell v. Hawkins, 4 Drew, 468. 776. This case was distinguished from 2 Spinks V. Robins, 2 Atk. 491. Whitfield v. Clemment, 1 Mer. 402, to 3 Barret v. Beckford, 1 Ves. Sr. 519 ; De the contrary, for the reason that in the Vese V. Pontet, 1 Cox, Eq. 188. last-named case there was evidence of an * Gee V. Liddell, 35 Beav. 621. intent to confer a bounty. 6 Haynes v. Mico, 1 Bro. C. C. 129 ; lo Pole v. Lord Somers, 6 Ves. 309, Adams V. Lavender, 1 M'Cl. & Y. 41. 321. 6 Philips V. Philips, 3 Hare, 281. " Wallace v. Pomfret, 11 Ves. 542. ■^ Jefferies v Michell, 20 Beav. 15. 12 Dixon v. Samson, 2 Y. & C. 566 ; 8 Parmiter v. Parmiter, 1 Johns. & H. Parmiter v. Parmiter, supra. 135 ; aff d 3 L. T. N. s. 799. (a) Bradshaw v. Huish, L. R. 43 Ch. D. 260 ; Boughton v. Flint, 74 N. Y. 476. 40 526 THE LAW OF PERSONAL PROPERTY. " ademption " already considered, but rather under circumstances where the child has a claim, — e.g., by marriage settlement, — and the question is whether the parent has satisfied the claim. The court does not lean against the doctrine of satisfaction in this class of cases, as it does in ordinary debts, but rather favors it, owing to its hostility to double portions. A leading modern case is the case of Lady Thynne v. The Earl of Glengall,i already cited in an- other connection.2 In this case there was a marriage settlement by a father upon a daughter, in which he agreed to transfer to trustees certain stock in trust for his daughter for life, and after her death for the children of her marriage, as her husband and she should jointly appoint. In his will the father gave a moiety of the residue of his personal estate in trust for his daughter for life, remainder to her children (not confining himself to the chil- dren of the marriage, as the settlement did), as she should appoint (omitting the husband). Notwithstanding these differences, and the fact that the gift was a residue, the will was held a satis- faction of the portion under the settlement as far as it would go. Assuming that a residue was uncertain in amount, it should apply for what it was worth. The court wholly threw out of view the cases as to satisfaction of a debt, holding that they had no appli- cation.^ This case is understood to have settled the law on clear and satisfactory grounds. There should be mentioned here the subject of a legacy to a testator's debtor. A testator may, if he will, make a legacy to a debtor of the amount of his debt. This must, as a rule, be regarded as a true legacy, and not as a release of the debt. It would not be treated as a release by a court of equity, as there is no consideration.* So the words, " I return A. his bond," were held simply to constitute a legacy.^ It would therefore lapse, like other legacies, in case the legatee should die before the testator.^ If, however, the testator use plain words of release, the intention may be regarded, and the debt deemed to be discharged.' The fact that the testator is a parent of the legatee will be taken into account.^ There may be a release in the view of a court of equity, though not so regarded in a court of law.^ 1 2 H. of L. Gas. 131 s. c. suh nom. thorp v. Moxom, 3 Atk. 580. In this last Earl of Glengal v. Barnard, 1 Keen, 769. case the court laid stress on the word 2 See ante, p. 624. " forgive." See also Synge v. Synge, L. R. 3 Weall V. Pace, 2 Euss. & M. 251, 267 ; 9 Ch. App. 128. Eichman v. Morgan, 1 Bro. C. C. 63. 8 Sibthorp v. Moxom, supra ; Musket * Tufnell V. Constable, 8 Sim. 69. v. Cliffe, 2 DeG. & Sm. 248. 5 Maitland v. Adair, 3 Ves. 231. » Hedges v. Aldworth, 13 Ir. Eq. 406, ® Toplis V. Baker, 2 Cox, Eq. 118. disapproving a dictum to the contrary in T South V. Williams, 12 Sim. 566 ; Cross v. Sprigg, 6 Hare, 552. Elliot V. Davenport, 1 P. Wms. 83 ; Sib- TITLE BY ACT OF THE LAW. 627 Sometimes the testator mentions the amount of the debt, which turns out to be erroneous ; such a statement in general binds the legatee,^ though if the error leads to an absurdity, the court will ascertain the true amount of the debt, and, if necessary, direct an accounting.'^ (4) Legacies charged upon laiid. — This is a special topic, be- coming important where the personal estate is not sufficient to pay the legacies, and there is real estate belonging to the testator. The inquiry then is, whether the land is not to be used to make up any deficiency. In general, it cannot be. The heir or devisee, as the case may be, is entitled to the land, and the legacies are only to be paid from the personal estate as far as it will go. There may, however, be evidence of intent, to be gathered either from the express words of the will, or by reasonable implication, that the land is to be resorted to. In this point of view the legacy is said to be charged upon the land. A few leading rules will now be stated. Rule 1. A legacy may be " charged " upon land by implication. There are two principal cases : one, where the question arises between the legatee and the owner of the land, considered by itself; the other, where following the legacy is a residuary gift of real estate and personal property blended together. This is technically called a " mixed residue." An example of a " mixed residue " is such words as " all the rest, residue, and remainder of my real and personal estate, I give," etc. In the first class of cases stated in this rule, the question is between the legatee and the owner of the land, considered by itself. The sole question is the intent. This will be inferred from such facts as these : he gives his wife land, and then directs her to pay enumerated legacies.^ No particular form of words is necessary. The case will be strengthened by special words, such as a devise of real estate " subject to a legacy," * or a devise of a house to A., he "paying thereout" one hundred dollars to B. at a specified time.^ So a direction to trustees to pay certain legacies has been held to constitute a charge.^ It is a rule that a testator, by a direction to sell his land for this and other purposes, may cause the proceeds to be treated as personal estate (called the doctrine of "equitable conversion"), and thus provide a fund from which legacies are to be paid." 1 Robinson v. Bransby, 6 Madd. 348. ^ Gallemore v. Gill, 2 Jur. N. s. 1178 ; 2 In re Taylor's Estate, L. R. 22 Ch. 2 Sm. & G. 158; Preston i;. Preston, 2 Jur. D. 495, disapproving of In re Aird's N. s. 1040; Rich v. Whitfield, 14 W. R. Estate, L. R. 12 Id. 291. 907. 3 Johnson v. Brady, 11 Ir. Eq. 386. "^ Field v. Peckett, 29 Beav. 568; Bright 4 Freeman v. Simpson, 6 Sim. 75. v. Larcher, 3 De G. & J. 148. 5 Seal V. Tichener, 2 Dick. 444. 528 THE LAW OF PERSONAL PROPERTY. In the second class of cases, where there is a mixed residue, it is a well-settled rule of the common law, as interpreted by the English courts, that if there are gifts of legacies, and then of the " rest and residue, real and personal," blending the whole into one mass, the legacies are " charged " upon the land.^ This principle is appli- cable, although the residuary legatee has power to dispose of the residuary property " in any manner he may think proper." The meaning is, that he shall so dispose of it as not to interfere with the prior burdens to which the property is subject. The principle also applies, although there is a direction that the debts and lega- cies shall be paid by the executors.^ The meaning of the word " charge " is not that the legacies are necessarily to be paid from the land, but that the land may be resorted to in case the personal property is insufficient. It is a general rule of law that the per- sonal estate is the primary fund for the payment of debts and legacies, and the rule prevails, even though the land be "charged" with their payment. The principle governing all these instances is simply this : when a testator treats his entire estate as a compound fund, or, in the language of the cases, as " one mass," and then gives enu- merated legacies, and in the end the residue or remainder, the words " residue " and " remainder " mean the overplus after the enumerated legacies are deducted, where the personal estate is insufficient. This does not appear to be a mere technical con- clusion, but to be founded on good sense and correct reasoning.^ The rule is " thoroughly well established, having been acted upon by the Court of Chancery for two hundred years." * The New York decisions do not accept in full the principle adopted by the English courts. The mere fact that " the residue of the estate real and personal " is given to one, while enumerated legacies are given to others, does not, in New York, make the latter a charge upon the land. There must be further evidence of the intent, such as that the personal estate is insufficient when the will takes effect, or that there is a direction to executors to pay, or the like. Accordingly, where the personal estate was ample to pay the legacies, there was no charge on the land, though nothing had been set apart with the view of paying the legacies.^ (a) 1 Greville D. Browne, 7 H. of L. Cas. 689. * Pe?- Jessel, M. R., in In re Brooke, 2 In re Brooke, L. R. 3 Ch. D. 630. supra. SeealsoWheelerw. Howell, 3Kay&J. 198. ^ Bevan v. Cooper, 72 N. Y. 317, and 3 Greville v. Browne, supra, pp. 697, cases cited; Wiltsie v. Shaw, 100 N. Y. 700, 705. 191. (a) Later cases, sustaining the New trary rule is approved in Turner r. Gibb, York doctrine, are Brill v. Wright, 112 48 N. J. Eq. 526; Bennett's Estate, 148 N. Y. 129; Briggs v. Carroll, 117 Id. 288; Pa. St. 139 ; Knotts v. Bailey, 54 Miss. Morris v. Sickly, 133 Id. 456. The con- 235 ; Cady v. Cady, 67 Jliss. 425. TITLE BY ACT OF THE LAW. 629 In other cases, having special facts, " charges " have been adjudged.^ It is likely that the decision in Wiltsie v. Shaw will lead to fine- spun distinctions as to the point whether there is sufficient evi- dence of intent. The English rule, on the other hand, is clear, and liable to but few, if any, exceptions.^ Rule 2. An express charge may be made by any appropriate words. The word " charge " is usually adopted by professional draughtsmen. There may be a charge in reference to some legacies, and not as to others. Difficult questions may arise as to whether the words importing a charge will be carried forward to legacies not specifically protected. It may be claimed that the expression as to one is, by implication, an exclusion as to others. Cases involving this point are cited in the note.^ The effect of a charge is to create a lien or incumbrance upon the land while it remains in the ownership of those to whom it descended or was devised. In case of a sale, a distinction is made as to a charge of debts simply as against an heir, and to a charge of both debts and legacies as against a devisee. In the former case there is an implied power in the executor to sell the land free from the charge.'* It will be observed that in this case the title to the land descends to the heir, and the executors represent the owner of the charge, and sell to settle the estate. In the latter case the title has passed to the devisee, and the money can only be raised through his instrumentality. There is no implied power bestowed upon him to sell in order to pay the legacies,^ though he may of course sell his interest, subject to the burden of the lega- cies. It would seem accordingly to be a good objection to a title derived from a devisee that there were charges subsisting that were not paid off, and it appears to have been so considered in a recent case in New York.^ Special questions will arise whether a certain order must not be followed in appropriating lands, such as to take first lands specifically devised to pay debts, and next such as descend to heirs, etc. In this matter the intention of the testator governs. It is, however, held that general words creating a charge of legacies 1 Hoyt V. Hoyt, 85 N. Y. 142; Harris States Supreme Ct, in Lewis v. Darling, V. Fly, 7 Paige, 421. Extraneous circum- 16 How. U. S. 1. stances may be considered, according to ^ Boyd v. Higginson, 5 Ir. Eq. 97; these cases, but this can only be done Hensman v. Fryer, L. R. 3 Ch. App. 420. when the words are doubtful. Hensman * Shaw v. Borrer, 1 Keen, 559 ; Ball v. V. Fryer, L. R. 3 Ch. App. 420. Harris, 8 Sim. 485 ; Robinson v. Lowater, 2 The English rule is adopted in Massa- 5 De G. M. & G. 272. chusetts (Wilcox v. Wilcox, 13 Allen, 252) ^ Newman v. Kent, 1 Mer. 240 ; Wigg and in other States ; also in the United v. Wigg, 1 Atk. 382. Wiltsie V. Shaw, 100 N. Y. 191. g30 THE LAW OF PERSONAL PROPERTY. only, — e.g., " on all my real and personal estate,"— do not, unless there is some evidence of intention to the contrary, include land specifically devised to another.i The principle governing the case is, that the testator, having given a particular thing, intends that the devisee should take it in its integrity, and without derogation, and cannot be supposed, from mere general words, to intend to withdraw it from a purpose to which he has already apparently devoted it. A different rule prevails where the charge includes both debts and legacies. As the debts clearly bind the specifically devised lands, there is a presumed intention that the legacies mentioned at the same time should also.^ Where a legacy is simply charged upon land by such words as " subject to the payment," etc., the devisee is not personally bound to pay it. lie takes the land cum onere, and that is all.^ It is otherwise if there be words in the will from which a promise by the devisee to pay can be inferred from his acceptancCv — e. g., if he be directed to pay.^ (5) Void legacies. — A void legacy is not the same as a lapsed legacy. A lapsed legacy is in its own nature valid, but fails to take effect owing to an event, such as the death of the legatee before the testator. A void legacy is a nullity. This invalidity may happen in a variety of modes, but principally from want of capacity on the part of the testator to give, or from a like inca- pacity of the legatee to receive. A legacy may also be void by reason of illegality or fraud, or uncertainty in description, etc. 1. Illegality. An important instance under this head is that of " remoteness," or bestowal of property to vest at a period of time beyond that allowed by the rules of law. This, at the com- mon law, is beyond the lives of specified persons in being, and a period of twenty-one years in addition. This period in New York and some other States is reduced by statute to two specified lives.^ A legacy transgressive of this rule is void. A legacy may be given to an unborn child of specified parents, as it would necessarily come into existence, if at all, within the legal period. The same rule applies to a non-existing corporation in other respects qualified to take.^ In the common lavv^ the period of twenty-one years may be selected by a testator, without reference to lives. In other 1 Campbell v. M'Conaghey, 6 Ir. R. 3 Jillard . Edgar, 3 De G. & Sm., .'i02 Eq. 20 ; Spoug v. Spong, 1 Dow. & CI, and cases cited on p. 508. 365 ; s. c. 3 Bligh, n. s. 84 ; Courou v. * Brown v. Knapp, 79 N. Y. 136, and Couron, 7 H. of L. Cas. 168. cases cited on p, 143. 2 Maskell v. Farrington, 3 De G. J. & 6 i r. s. 773, § 1 (8th ed. p. 2516). S. 338. 6 Rose j,_ Rose, 4 Abb. N. Y. App, Dec. 108. TITLE BY ACT OF THE LAW. 631 words, it may be taken as an absolute period.^ Thus, a testator might lawfully bequeath property to a charitable corporation to be chartered within twenty-one years after his death. In New York, only to such a corporation chartered within two lives of persons whom he names, — e. ^., two of his executors.^ (a) An instance of a different form of illegality is a bequest for purchasing the discharge of poachers committed to prison for non-payment of fines for violating the game laws.^ 2. Fraud. Some instances of fraud as a cause of invalidity of legacies may be noted. One is where the object of the testator is to dispose of his property so as to hinder, delay, or defraud credi- tors.* Another is the case where a legacy is given to a person under a particular character which he has falsely assumed, and which alone can be supposed to be the motive of the testator's bounty. It was accordingly adjudged that a legacy given by a woman to a man in the character of her husband, whom she supposed and described as husband, who at the time of marriage with her had a wife living, was void.^ 3. Uncertainty. A will may be void on the ground of uncer- tainty. The meaning of this is, that the will is so drawn that the intent of the testator cannot be ascertained by a resort to the usual rules of judicial construction. This rule is of special force at the present time, when statute law requires wills to be in writing. The intention of the testator must, in general, be found in the will itself, coupled with evidence of surrounding circumstances. 4. Want of capacity to bequeath. This defect only exists in special cases. It is not necessary to repeat the statements already made as to the instances of infancy, coverture, and undue influence. Rules of law sometimes preclude a testator who possesses full testamentary capacity from making bequests. An instance is a statutory rule in New York that no person having a husband, wife, child, or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scien- tific, religious, or missionary society, association, or corporation, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts (and such devise or bequest 1 Cadell V. Palmer, 1 CI. & F. 372. ^ Thrupp v. Collett, 26 Beav. 125. 2 Bun-ill V. Boardman, 43 N. Y. 254 ; * Coope v. Cresswell, L. R. 2 Eq. 106 ; Shipman v. Rollins, 98 N. Y. 311 ; Inglis on appeal, L. R. 2 Ch. App. 112. V. Trustees of Sailors' Snug Harbor, 3 ^ Kennell v. Abbott, 4 Ves. 302. Pet. 99. {a) See Cruikshank v. Home for the Simonson, 126 N. Y. 299, 307 ; Longheed Friendless, 113 N. Y. 337; People v. r. The D. B. Church, 129 N. Y. 211. g32 THE LAW OF PERSONAL PEOPERTY. shall be valid to the extent of one half, and no niore).i This statute has been the subject of much adjudication, which is referred to in a note.^ 5. Incapacity of the legatee to take. Corporations. There is an important distinction between the general capacity of a corpor- ation, on the one hand, to take real, and on the other, personal, property by will. Wills of real estate, conferring the legal title, could not be made at all under the rules of the common law. They were introduced by the Statute of Wills in the reign of Henry VIII. Corporations were excepted from this statute, and are generally not authorized in the American statutes to take real estate. As, however, the common-law rule did not apply to trust interests, a devisor could create a trust in his own favor, and then make a will of his trust estate. These refinements never applied to wills of personal property. A corporation, like a natural person, was allowed to take that species of property, unless in some way restricted by statute.^ There is restrictive legisla- tion upon this point in a number of the American States. New York may be referred to as an example. The law of 18G0 (ch. 360) has already been mentioned, which limits tlie testator, as to corporations, etc. More important still is the earlier legislation of 1848, intended exclusively to limit the capacity of corporations formed under the general law of that year, to take property by devise or bequest, unless the will should have been executed at least two months before the testator's death.* The amount which could be devised or bequeathed under this statute was subsequently increased by various acts until, in 1890, it was enacted that charitable corpor- ations, and others not organized for business purposes, could take and hold property not exceeding in value three million dollars, or property yielding a yearly income not exceeding two hundred and fifty thousand dollars. This act does not, however, affect corpora- tions already having power to take and hold a larger araount.^(a) 1 Laws of 1860, ch. 360 (Rev. St. 8th Drew TheoL Seminary, 95 N. Y. 166. See ed. p. 2550). ante, p. 238. 2 In order to determine whether the ^ Sherwood v. American Bible Societj'', will exceeds the prescribed amount, the 4 Abb. N. Y. App. Dec. 227; and cases whole estate must be treated as if converted cited on p. 231. into money at the time of the testator's * Laws of 1848, ch. 319. death, and the money value of the portion ^ See Laws of 1848, ch. 319, § 6; Laws given ascertained, and if the one half is of 1881, ch. 641; and Laws of 1889, ch. not exceeded, the will is valid. HoUis v. 191, as amended by Laws of 1890, chs. 497 and 553. (a) See also § 12 of the General Corpor- if any general or special law or any cer- ation Law, as amended by ch. 400 of the tificate of incorporation shall limit the Laws of 1894. It is here provided that amount of property a corporation other TITLE BY ACT OF THE LAW. 633 An important question arose in connection with the charter of Cornell University, whether the distinction recognized in Eng- land between taking and holding property by corporations pre- vails in New York. The English statutes prohibiting corporations from taking and holding lands without license from the king, called statutes of " mortmain," were so construed by the courts, that an unauthorized acquisition would vest in the corporation by a defeasible title, until proceedings were taken on behalf of the sovereign power to divest the title. This construction is repudiated by the New York Court of Appeals as to acquisition by devise or bequest, so that a gift by will, beyond the authorized amount, is void for the excess, and vests no title whatever in the corporation.^ This decision was affirmed in the Supreme Court of the United States, not upon the main ground, which was held not to present a Federal question reviewable by that court, but solely upon the ground also maintained in the New York Court of Appeals, that Cornell University held property exceeding in value -13,000,000, which was the amount authorized by its charter.^ Charities. — Special rules prevail as to charitable legacies. They are not subject to the doctrines of "remoteness" as an ordinary legacy is. A perpetual fund may be given to selected trustees (not incorporated), who may have power to fill vacancies in their number, and thus apply the income from time to time to the charitable purpose. A similar gift may be made to a charita- ble corporation. The whole subject thus becomes a branch of the law of trusts, enforceable in equity. The word " charitable " is not used in the popular sense of a gift for the benefit of the poor, but embraces purposes of general public utility, extending to the rich as well as the poor, including gifts to support high- ways, institutions of learning and religion, etc. The decisive test is " public utility." Thus, a gift to the Royal Geographical Society, whose object is " the improvement and diffusion of geo- graphical knowledge," is charitable ; so also to a society whose objects were to " improve natural knowledge." ^ 1 Matter of McGraw, 111 N. Y. QQ. 2 Cornell University v. Fiske, 136 See also Chamberlain v. Chamberlain, 43 U. S. 152, 174, 175. N. Y. 424, 439 ; White v. Howard, 46 3 Beaumont v. Oliveira, L. R. 4 Ch. N. Y. 144. Accordingly, the heirs or App. 309, 313, 314, and cases cited; Trus- next of kin may raise the question, 111 tees of British Museum v. White, 2 Sim. N. Y. 108. & S. 594. than a stock corporation may take or from which shall be five hundred thousand hold, such corporation may take and hold dollars or less, notwithstanding any such property of the value of three million dol- limitations, lars or less, or the yearly income derived g34 THE LAW OF PERSONAL PEOPERTY. It was at one time supposed by some that this subject was statutory in its origin in England, and accordingly did not exist in an American State, unless under the support of positive leo-islation. The act commonly referred to is one passed in the latter part of the reign of Queen Elizabeth.^ This doctrine has been overthrown by later researches, as a large number of decrees of the Court of Chancery made before that date has been col- lected, forming a body of law upon this subject. This subject is not confined to legacies, or wills of real estate, but includes con- veyances of land as well as of personal property. The courts following the Roman law favor charities, adopting the doctrine of c(/ pres to a marked extent, in order to uphold them. The general law of " charities " has been qualified in England by statute. At the time of the Reformation certain gifts previ- ously regarded as charitable were by statute declared to be " super- stitious" and void. This legislation introduced the doctrine of " superstitious uses." ^ This theory has no place in American law. One of the uses declared in England to be superstitious is a foundation for the sustentation of a " chantry priest " to say masses for the souls of the dead.^ This rule still prevails, not- withstanding the act of 23 & 24 Vict. c. 134.* (a) Another important English statute is one passed in the 9th of Geo. II., c. 36. This is sometimes called a statute of " mort- main." {b) This is not an accurate expression, since a mortmain act is directed against corporations in general, restricting the right to take land ; the statute in question, on the other hand, is directed solely against charitable uses in land, or interests in land. This act is purely local in its operation. It does not extend to the English colonies,^ and never had any operation in this country. The object of the statute was to require charitable gifts of land, or of money to be laid out in land, to be made by deed executed twelve months before the death of the grantor, and enrolled in a prescribed manner. The result was that there could be no * 43 Eliz. c. 4 (a. d. 1601). to such a purpose is not a superstitious 2 37 Hen. VIII. c. 4; 1 Edw. VI. c. 14. use in Ireland. Read v. Hodgens, 7 Ir. 3 Atty-Gen'l v. Fishmongers Co., 5 M. Eq. 17; also Id. 34, n. «& C. 11 ; West V. Shuttleworth, 2 M. & K. 5 Atty-Gen'l v. Stewart, 2 Mer. 143; Mit- 684; Heath v. Chapman, 2 Drew. 417. ford v. Reynolds, 1 Ph. 185; Whicker v. * In re Blundell's Trusts, 30 Beav. 360. Hume, 1 De G. M. & G. 506. Such a bequest or appropriation of funds (a) In re Elliott, 39 W. R. 297. date and amend the law relating to ]\Iort- (b) This act was for the most part re- maiu and to the disposition of land for pealed by the Mortmain and Charitable Charitable Uses." See also 54 & 55 Vict. U.ses Act, 1888 (51 & 52 Vict. c. 42). c. 73, and 55 Vict. c. 11. The purpose of this act is "to consoli- TITLE BY ACT OF THE LAW. 635 charitable devise of land (with some exceptions) after the passing of that act.i The words " lands, etc.," used in the act are con- strued with much strictness, including mortgages, money charged on land, railway bonds secured by mortgage, etc.^ Mere railway debentures are not included, as they are strict personal property, being nothing more than promises to pay money .^ Leasehold property, though in one sense personal estate, is, for this purpose, land, and a gift of it falls within the prohibition of the stat- ute.^ A distinction for the purposes of the act is taken between pure and impure personalty. Tlie former lies entirely without the statute, except in the case of stock in the public funds, the latter is within the prohibition. The statute cannot be evaded by a direction that the land of a testator be sold and converted into money .^ In some cases, where there is a mixed fund of " pure and impure" personalty given to a number of objects, some of which can take land and others not, the court will so distribute the items as to give the " impure personalty " to such as are authorized to take and hold land.^ The recent New York decisions have made large inroads into the law of charitable gifts as understood in England or in a State like Massachusetts, closely following the common law. It is de- clared to be the effect of the statute of perpetuities to prohibit the devotion, even of personal property, to charitable uses beyond two lives, and that such devotion can no more be made indirectly than directly, as it is in fraud of the law. Accordingly, a gift of per- sonal property to three persons to devote the income during their lives to a specified charitable purpose, was declared to be void.''' (a) There can thus be no charitable gift in New York to continue beyond two lives, unless made to a corporation having statutory powers to take and hold the property. Again, the New York courts do not, as a rule, enforce trusts against charitable corpora- tions. They are treated as owners of the property conveyed or devised to them, rather than as trustees responsible to beneficia- ries designated or described by the donor or testator.^ Finally, the cy pres doctrine, figuring so largely in the works on equity 1 Price V. Hathaway, 6 Madd. 304. Church, etc. Soc. v. Coles, 1 Jur. n. s. 2 Ashton V. Lord Langdale, 4 De G. & 76L Sm. 402. 6 Wigg v. Nicholl, L. E. 14 Eq. 92. 3 Holdsworth v. Davenport, L. E. 3 '' Will of O'Hara, 95 N. Y. 403. The Ch. D. 185; Mitchell v. Moberly, 6 Id. decisive case is Holland v. Alcock, 108 655; Attree v. Hawe, 9 Id. 337. N. Y. 312, in which the English law of * Johnstone v. Hamilton, 5 GifF. 30. private trustees is rejected. See also Cott- 6 Jones v. Williams, Amb. 651; lucorp. man v. Grace, 112 N. Y. 299. 8 Wetmore v. Parker, 52 N. Y. 450. (a) See also Eead v. Williams, 125 N. Y. 560. gog THE LAW OF PERSONAL PROPERTY. as a proper element in construction, has been practicallj abandoued.i ('^) --i.-jii ^. i. Individual le. Industrial School Association, or of administration, — interest does not 127 N. Y. 402; Stout v. Stout, 44 N. J. begin to run until one year from the grant- Eq. 479; Davison v. Rake, Id. 508. ing of letters. Matter of Accounting of [h) Thorn V. Garner, 113 N. Y. 198. McGowan, 124 N. Y. 526; Wheeler v. (c) When, by statute, legacies are made Hatheway, 54 Mich. .^547. payable at a certain time, — c. g. one year TITLE BY ACT OF THE LAW. 657 to support him, it may fairly be ])resu7ned that he intends to do so, when he recognizes tliat duty so far as to give him a legacy. There is no interest on a sum paid into court, unless the amount paid in yields interest, in which case the legatee will have the in- terest which is earned.^ (a) Interest on an annuity commences from the testator's death.2(J) A legacy to a wife (not being given as a jointure) does not bear interest until a year after the testator's death.^ Duti/ on legacies mid successions. It has long been the policy in England to impose a duty upon legacies, and in later years a duty or tax on " successions " has also been levied. The statute on this subject also affects the duties on legacies.* By another enactment, power is given to representatives in certain cases to commute legacy or succession duties presumptively payable.^ These statutes have been very fruitful in litigation, and there is a large number of decisions upon the subject. The legislature of New York has recently adopted this policy and established both legacy and succession duties in a single statute. ((?) Reference to the English decisions will probably be found useful in discussing questions that may come before the courts in construing similar laws elsewhere.^ (4) Distribution of the estate. — Where there is no will, the dis- tribution of the estate among the next of kin requires but brief mention, as the principles governing the payment of legacies largely apply. Distribution is usually ordered on the final ac- counting among the parties entitled under the Statute of Dis- tributions, already considered. It is sometimes directed before the time for creditors to present their claims has expired, where the debts of the decedent can be secured by refunding bonds given by the distributees. The details of this procedure must be sought for in local statutes. In case a distributee is an infant, it is necessary in many States to appoint a special guardian or guardian ad litem to represent him on the accounting and distribution. In some States his share is paid to his general guardian, or paid into court until he arrives 1 Maxwell v. Wettenhall, 2 P. Wms. Duty Act," 18.53. See also 44 & 45 Vict. 26. c. 12 ; 51 & 52 Id. c. 3 ; 52 & 53 Id. c. 7. ^ Gibson v. Bott, 7 Ves. 89, 96. & 43 Vict. c. 14, § 11. 3 In re "Whittaker, L. R. 21 Ch. D. ^ gee Shelford : Succession, Probate, 657 ; In re Percy, 24 Id. 616. and Legacy Duties (1861) ; and Trevor : * 16 & 17 Vict. c. 51, "Succession Taxes on Succession (1881). a Johnson v. Moon, 82 Ga. 247. (c) Laws of 1892, ch. 399, repealing (&) See Matter of Staniield, 135 N. Y. the former statutes and constituting the 292. present law upon the subject. 42 g58 THE LAW OF PERSONAL PROPEKTY. at majority.! Where a distributee is imlinown, statutes now pro- vide that his share shall be paid into some public repository for his benefit.2 xhe accounting and distribution ordinarily occur at the end of one year from the granting of letters of administra- tion, (a) Should the distributee die before that time, his interest passes to his personal representative. (5) Management of the estate. The duties of executors and administrators in this respect are, in a single expression, those of a trustee. They have the legal title to the personal property, subject to a trust imposed upon them by law to hold and manage it for the benefit of the creditors and beneficiaries, including legatees and next of kin. These general duties will now be stated, the object being to group together under this head such acts as making contracts on account of the estate, continuing the business of the decedent, making investments, taking out insur- ance, general care of the assets, etc. 1. Contracts of personal representatives. — It is a general rule of law, that if an executor make a promissory note, though for the benefit of the estate, and though signing his name as executor, he will be personally liable to the holder.^ The word " executor " added to his signature is a word of " description " merely, and does not change the nature of the contract. In some instances he will be entitled to indemnity from the estate, but not necessarily.* Under the provisions of the Statute of Frauds, a promise to pay out of his own estate must be in writing. A promise so made, and based on a consideration^ will be personally binding. Examples of consideration are such as these : where an attorney delivered up papers belonging to the estate at his request, which the attorney was not obliged to deliver until his bill was paid,^ or where the creditor consented to wait for the payment of his claim on the promise of the executors to settle it.^ 2. Continuing the business f the decedent. — It is frequently requested by a testator that his executors should for a time carry on the trade in which he was himself engaged, perhaps with the belief that his estate can in this way be settled to greater advan- tage. There are two principal classes of cases of this kind, — one, where the testator was a sole trader ; the other, where he was 1 New York Code of Civ. Pro., § 2746, 6 Duchess of Hamilton v. Incledon, 4 2 Id. § 2747. Bro. P. C. 4. 8 Lucas v. Williams, 3 Giff. 150. 6 Bradly v. Heath, 3 Sim. 543. * Lucas V. Williams (No 2), 4 De G. F. & J. 438. (a) In New York, by ch. 421, Laws of ately after publication for claims is cora- 1894, an accounting may be had immedi- plete, the creditors being cited. TITLE BY ACT OF THE LAW. 659 a member of a firm. Only the first of these classes will now be considered, the other class more properly belonging to the law of partnership. The regular business of a personal representative is to settle and adjust the affairs of the estate at the earliest practicable mo- ment.^ It is accordingly an inflexible rule that the business ought not to be carried on without the most distinct and positive authorit^^y to that effect in the will itself.^ Under these circum- stances, if the enterprise prove disastrous, only the capital em- barked in the business will be liable.-^ A direction by the testator that the business shall continue to be carried on does not author- ize the executor to embark in it additional capital.'^ (a) Though the testator's estate be liable in a limited manner, the executor himself will be personally responsible for the debts con- tracted after the testator's death.^ It is not material to this lia- bility whether he is or not entitled to be indemnified from the testator's estate.^ The executor " is liable for every shilling on every contract he enters into." " That portion of the estate which the testator set apart for the business becomes a trust estate, and may be treated as separated from the rest of his estate, so that only that will be liable for the debts contracted in the business, (b) Accordingly, the creditors may not only sue the executor on his contract, but may be substituted or subrogated to the position of the executor in his claim for indemnity out of the testator's estate. It follows that if the executor has no claim for indemnity, the credi- tors have no claim for substitution, and cannot proceed against the testator's estate.^ But it must be repeated that the debt is the executor's debt, and that the creditor cannot proceed against the property of the testator except as above indicated, even though the executor use the property of the estate as though it were his own.^ The language of a high authority is worthy of careful consideration. " Executors have no authority in law to carry on the trade of their testator; and if they do so, unless 1 Collinson v. Lister, 20 Beav. 356. ^ Id. 2 Kirkman v. Booth, 11 Beav, 273. " Owen v. Delameie, L. R. 15 Eq. 134, 3 Ex parte Garland, 10 Ves. 110; Ex 139. parte Richardson, 3 Madd. 138. ^ Shearman v. Robinson, L. E. 15 Ch. * M'Neillie v. Acton, 4 De G. M. & G. D. 548. 744. 9 In re Morgan, L. R. 18 Ch. D, 5 Labouchere v. Tapper, 11 Moore P. C. 93. C. 198. (a) See Willis v. Sharp, 113 N. Y. 586. insolvent, the general assets will be liable {b) A testator may, however, bind his in equity. Willis v. Sharp, supra. See general assets for all of the debts incurred also Burwell v. Mandeville's Executor, in the business. If such an intent clearly 2 How. U. S. 560. appear from the will, and the executor be ggQ THE LAW OF PERSONAL I'EOPEETY. under the protection of the Court of Chancery, they run great risk, even although the will contains a direction that they should continue the business of the deceased." ^ 3. Care and preservation of the estate. — The principle govern- ing this class of questions is that the personal representative should use the same care that a man of ordinary prudence uses in the conduct of his own affairs. This rule may be applied to the following cases : — (a) Duty to insure. Somewhat singularly, it has been held that an executor is under no general duty to insure.^ In one of the cases cited, two months had elapsed since the expiration of the insurance, and no insurance taken. A reason given in the cases is, that the insurance money is not an asset, it being a mere contingent claim in case a misfortune destroying the property happens.^ (b) Conversion of assets, and investments. There is sometimes an implied duty to convert the assets into money, even though not needed for the payment of debts, — as, for example, where they are of perishable nature, (a) There are often directions in the will as to conversion, which must be observed. The duty to con- vert in such a case depends upon the legal construction of the words used. Thus, if a testator should direct all his property, except ready money, or money in the " funds," to be converted into " money," the word " funds " would mean direct obligations of the government, and would not include the bonds of another country guaranteed by the government.* The rule of law, as interpreted by the English courts, is strict as to investments. The general rule is that the investment must be made in government stocks or in mortgages of real estate having value considerably in excess of the sum loaned.^ If the mvestment be properly made, the executor is not in general liable for depreciation in value, (b) 1 Williams on Executors, 7th ed. ^ jt ^yas said in Stickney v. Sewell, 1 M. p. 1791. & C. 8, that the correct rule was not to 2 Bailey v. Gould, 4 Y. & Colly. 221 ; advance more than two thirds upon prop- Fry V. Fry, 27 Beav. 144, 146. erty of permanent value, such as freehold 3 Bailey v. Gould, supra. land, not including buildings. * Burnie v. Getting, 2 Colly. 324. (a) In many States this subject is gov- estate securities. King v. Talbot, 40 N. Y erned by statute. See Woerner on Admin- 76 ; Mills v. Hoffman, 26 Hun, 594, re- istration, § 330. versed on other grounds in 92 N. Y. 181 ; ijb) While the English rule is not a Ormirton v. Olcott, 84 N. Y. 339 ; Lamar part of the common law, it is an estab- v. Micou, 112 U. S.452. In New York, city lished principle in several States that in- securities are also now an authorized in- vestments by executors and administrators vestment, by statute. Laws of 1889, ch. 65. must be confined to government and real Investments even in real estate mortgages TITLE BY ACT OF THE LAW. 661 On the other hand, if the investment be unauthorized, the ex- ecutor must sustain the loss occasioned by depreciation, but can receive no advantage if it turn out to be profitable.^ A power may be conferred in the will to loan upon " personal security," or to a particular person named, in which case the executors would not be liable for following out the power.'-^ Such a direction, framed in general terms, would not permit a loan on personal security by one executor to another.'"^ The reason of this is, that the testator relied on the " united vigilance " of them both, and his intent would be defeated if one could lend to the other.* It is a further rule that the executor should, within a reason- able time, convert the personal obligations of the testator into money. The fact that the testator was content with personal security is no reason why the executor should continue to hold it. This rule is affected by the broader rule that it will be enough if the executor act with reasonable diligence and in good faith.^ Still, the general rule remains, that if personal securities are not collected, and there is a loss occasioned by the neglect, the execu- tor is liable.^ If, however, assuming that active measures had been taken, the security could not have been collected, the execu- tor would not be liable, for nothing has been lost by his delay .'^ The general rule is, that the executor has one year within which to convert into money the assets which should be sold. The rule is not absolutely rigid. The particular nature of the property must be considered, and the attending circumstances.^ There is, in some cases, a special reason for selling stocks of banks and other companies, owing to the fact that a personal liability is imposed upon the owner in case of corporate insolvency. If a long time should elapse before sale, and the liability be incurred, the executor will be answerable, unless good reason be given for his delay .^ So in respect to closing the domestic establishment of the testator and discharging servants, a reasonable time must be allowed.i^ 1 Knott V. Cottee, 13 Beav. 77. ^ Bullock v. Wheatley, 1 Colly. 130; 2 Parker v. Bloxam, 20 Id. 295. Caney v. Bond, 6 Beav. 486. 3 V. Walker, 5 Russ. 7. ' East v. East, 5 Hare, ,343, 348. * Id. 8 Hughes v. Empson, 22 Beav. 181. * Buxton V. Buxton, 1 M. & C. 80 ; » Grayburn v. Clarkson, L. E. 3 Ch. Marsdeu v. Kent, L. R. 5 Ch. D. 598 App. 605. (C. A.). 1'^ Field v. Peckett, 29 Beav. 576. outside the State will not usually be up- and administrators to employ the same held. Ormiston v. Olcott, supra. care and prudence in making investments In other States the rule is less strict ; as a prudent and cautious man would use but it is itniversally considered, as stated in the management of his own property. 40 in the text, to be the duty of executors Am. Dec. 506, n. ; Lamar v. Micou, supra. 002 THE LAW OF PEESONAL PEOPEKTY. (c) Liability for ivaste. As a rule of law, an executor is liable for " waste " of the assets. This is technically termed a devas- tavit. It may occur bj neglect, such as a failure, without good cause, to observe the rules already considered, or it may be caused by wrongful acts of a wilful nature, injurious to, or destructive of, the estate. Such waste may also be charged upon one who is in privity with the executor in the wrongful act. From this point of view, it is the duty of an executor to keep accounts. They should be clear and distinct, and not mingled with his private accounts.^ A legatee, for example, has a right to an inspection of the ac- counts,^ and it is reasonable to maintain that they should be in a condition fit for convenient inspection. An executor should also deposit the money of the estate with a banker, separate from his own. The rule does not mean merely keeping a separate account of the trust money, but having such an account entered on the banker's books in his name as executor, or its equivalent. A non- compliance with this rule might subject him to personal liability in case of the banker's failure, (a) He might also be liable if he left an unreasonable amount for a considerable time on deposit, even though properly entered. It may be reasonable for an ex- ecutor to keep an amount of money on hand to meet bills that may be presented. If so, he will be protected. When the amount of the deposit is beyond the requirements of the estate, he may be liable for the failure.^ He may also be liable for the misfeas- ance of his agents, such as a clerk,* also of a solicitor, in some instances.^ An important and difficult question is presented at this stage of the discussion, as to the circumstances under which an execu- tor is liable for the waste or embezzlements of a co-executor, though not a participant in the wrong. Where there are several executors, one or more of them may be active, and others passive. If the active executor waste the assets, the passive one is not liable, unless there be some special circumstances. (6) First. It is quite plain that if he concur in an act of his 1 Freeman v. Fairlie, 3 Met. 29, 40. Swinfen v. Swinfen, 29 Beav. 211 ; John- 2 Ottley V. Gilby, 8 Beav. 602. son v. Newton, 11 Hare, 160 ; Wilks v. 2 Cases in which the executor was held Groom, 3 Drew. 584 ; Finch v. JIarcon, 40 liable are Moyle v. Moyle, 2 Russ. & M. L. J. (Ch.) 537. 710; Lowryt;. Fulton, 9 Sim. 115; Ast- * Kilbee v. Sneyd, 2 Moll. 186. bury V. Beasley, 17 W. R. 638. Cases in 5 Gilroy v. Stephens, 51 L. J. (Ch. D.) which he was declared not to be liable are, 834. (a) Summers v. Reynolds, 95 N. C. Cocks v. Haviland, 124 Id. 426; De 404 ; Williams v. Williams, 55 Wis. 300. Haven v. Williams, 80 Pa. St. 480 ; Eng- [h) Nanz v. Oakley, 120 N. Y. 84; lish v. Newell, 42 N. J. Eq. 76. TITLE BY ACT OF THE LAW. 663 associate, simply because liis concurrence is made indispensable by law, he is not liable.^ Second. If one executor take possession of the assets, and then intrust them to another to be managed, the former is liable.^ {a) Third. Any wilful neglect or default on the part of the passive executor will make him responsible,-^ {b) — such as allowing a part of the estate to remain outstanding in an improper state of in- vestment.* The passive executor, when called upon to do an act which is claimed to be indispensable, should make due inquiry.^ Fourth. If a passive executor does an act (not being necessary) which enables a co-executor to obtain control of the assets, he will be liable for misapplication.^ This rule could not be applied to a case where one executor had securities in a box, of which he supposed himself to have exclusive control, while his co-executor also had a key, and, by means of it, without the knowledge of the former, withdrew securities, and misapplied themJ Fifth. The act of joining in a receipt with the defaulting execu- tor is evidence of joint control, and tends to show that the other surrendered possession of assets. It is not, however, conclusive evidence, (c) The real inquiry is, whether the passive executor had control, and so surrendered it. If so, he is liable, but not otherwise.'^ There is sometimes found in the will a clause to the effect that each executor shall only be liable for his own default, and not for concurring in an act to enable his associate to receive funds, etc., for the purposes of the will. This is called an " indemnity clause," and will furnish protection, unless there be gross neglect or personal misconduct.^ The present judicial mode of stating the executor's liability is, that it is equivalent to that of a gratuitous bailee, and that he cannot be made liable, except for toilful default.^^ When the courts expound the phrase " wilful default," it is said that it does not mean deliberate or intentional default alone, but includes 1 Terrell v. Matthews, 5 Jur. 1074. H/mwe(/. , , - aqj dramatic composition, what is, under laws of *y^ creditor's remedies against owner of ^^o immoral publications, under laws of o-\ 7m benefits may accrue to children of author, when ^oO, OUi (See Literary Property.) alien, right to, under United States laws 488, 493, 495 title to book, whether subject of 498, 502 CORPORATIONS, agents, acts of, when binding ^oo, oy* power of general, to issue stock 409 alienation of land by am I'd amalgamation, and consolidation of 40d, 4U4r amotion ^ assignment for benefit of creditors by ^o4 authority, general proceeding to correct abuse of 376, 387 bankrupt, proceedings peculiar to 573, 574 borrowing money, power to • ■ 367, 384 cancellation of stock, may maintain action to cancel spurious certi ficates 384 capital of, considered a trust fund 397, 398 certificate of incorporation of 355 (See subdivision, charter of, below) charitable or eleemosynary (see Charitable Corporations.) charter of, as expressing general mode of creation .... 355, 356 implied grant of 355 must be accepted; user 356 must be a name given . 356 when a contract 352, 398, 399 when subject to change or repeal 352, 398, 399 surrender of 400 defective, how remedied by prescription 354 effect of violation 400 certificate of incorporation, general rules as to 355 construction of 383, 384 must be strict 383 incidental or implied powers 384 remedies for violation by 389, 400 what acts authorize forfeiture of 400 classification 350-354 aggregate or sole 351 public (municipal) or private 351, 352 ecclesiastical or lay 351 civil or eleemosynary (charitable) 351 domestic or foreign 352 stock 351, 352 quasi 352 under New York law 413, 414 (See generally. Charitable Corporations; Foreign Corpo- rations; Religious Corporations; Stock Corporations.) contracts, power of, to make 367, 368 express or implied power 367, 388, 384 INDEX. 685 [References are to Pages.] CORPORATIONS — continued. contracts, to borrow money 360, 367, 383 may accept bill or note, based upon a debt 384 may make investments 384 assignment for creditors 384 to sustain another corporation 384 use of seal 367 acts of agents bind 368 qualifications in charter, on power to make, must be observed . 368 when ultra vires 356, 359 when, may be rescinded for directors' fraud 394 subscription to stock 406, 408 (See Foreign Corporations; Municipal Corporations; Stock Corporations.) conveyances of land by 375 when held on specific trust 375, 376 by religious, etc., corporations 376 creation of 354, 356 by prescription 354 by Congress or State legislature, under general or special law 354, 356 creditors of, remedies, subrogation, when claims unenforceable . 360 n. in actions at law 378 in suits in equity 378, 401 against ofBcei'S for diversion of capital 397 on dissolution 401, 405, 412 franchise cannot be sold by 378 assignment by, for the benefit of 384 bankrupt proceedings by 573, 574 defined, general definition 350, 351 character of the power to act as an artificial person .... 350 distinction between a stock corporation and a partnership or joint stock company 351 devises to, under statutes of wills 371 under New York statutes 372, 375 may not take unless expressly authorized 373 effect of conversion 373 foreign corporations 373 limitations on amount by statutes 1848 and 1860 374 gift void, if capacity exceeded 375 directors, and trustees of, who are 363 election of 363, 365 amotion of 362, 365 remedies for wrongful election 364 what acts of, bind 368 notice to, when notice to corporation 368 remedy of one director against others for exclusion from acting 396 fiduciary relation of, to corporation 365, 391 ratification of void or wrongful acts by stockholders . . 359, 396 remedies of corporation against, for violation of duty 390, 391, 396, 398 liability of, to third persons in general 392 liability of, to third persons for fraudulent prospectus . 392, 399 (See Fraud ; Stock Corporations.) 686 INDEX. [References are to Pages.] CORPORATIONS— co/i^nue^. disfranchisement dissolution of, by death or removal of members 398 by act of legislature 398, 399 by surrender of corporate rights 400 by judicial decree, at common law and equity .... 400, 401 under statute in England and New York 401, 403 effect of, at common law 404 effect of, in equity 404, 405 renewal of corporation after 405 dividends on stock of, payable only from profits 377, 410 belong to person owning at time declared 410,411 what are 409 on preferred and common shares 411 when guaranteed 411 domicile of 381, 382 election and removal of members of, having definite number 360, 362 majority must meet 360 notice of regular or adjourned meetings presumed 361 notice of special meetings must be given 361 disfranchisement 361 amotion 362 election and removal of officers of stock 362, 365 time of holding 364 voting, how conducted 363 voting by proxy 363 voting by pledged stock 363, 364, 409 remedy for wrongful election 364 counting of votes 364 amotion 362, 365 adjourned and special meetings for holding 361 equity, jurisdiction over 378, 385, 387 to enforce trusts 385, 389 remedies against directors 396 to enforce claims of creditors 401 to protect creditors and stockholders on dissolution . . 404, 405 executors and trustees, right to vote at election 363 foreign (see Foreign Corporations). forfeiture of charter, what acts amount to 400 remedies for 389, 400 forfeiture of stock 365, 405, 406 franchise of, cannot be sold by creditor under judgment .... 378 fraud, by officers in obtaining office 362 by directors in issuance of prospectus or report . . . 392, 394 no action, unless regular subscription 392 or when wrongful intent absent 393 concealment of material facts 393 expression of opinion 394 information in the nature of quo warranto, to remove officers . . . 362 as a method of forfeiting charter 389, 400 judgment against, effect of 351, 378 INDEX. 687 [References are to Pages.] CORPORATIONS — continued. lands, capacity to acquire and dispose of 369, 376 may acquire in absence of statute 369 mortmain statutes of England and the United States . . 370, 634 effect of exceeding amount allowed 370 effect of increase in value 370 acquisition of, incidentally 371 acquisition of, by foreign 370 acquisition of, by disseisin 371 acquisition of, by will 37I acquisition of, under laws of New York 372, 375 (See subdivisions, deuises to, New York, wills; and title Charitable Corporations.) power to dispose of 375 conveyance of, by 375^ 376 disposition of, on dissolution 405 legacy to, capacity to take 369, 632, 633 legislative power over 352, 354, 355, 398, 400 malicious prosecution by, liability for 368, 369 mandamus, as a remedy to place persons elected in office .... 364 as a remedy to compel action by 389 mortmain acts in England and United States 370, 634 name of, no inherent power to change 356 may be estopped to deny false 356 negligence of, in carrying out contract ultra vires 358 New York law, as to devises 372, 375 alienation of land by 376 remedies for abuse of powers 390 remedies against directors 396, 413 dissolution 402 403 outline of acts under which corporations may be created . 413, 414 pledged stock, when owner may vote at election . . . 304, 408, 409 powers of 356, 384 acts of transgression of, or ultra vires 356, 359 ( See subdivision, ultra vires, below. ) succession, where membership is a definite number . , 360, 362 (See election of members, above.) succession in stock corporations 362 (See subdivision, election of officers, below.) to act as trustee 383 quasi corporation 383 (See also subdivisions, by-laws or ordinances, contracts, devises to, lands, legacy to, etc.) profits of, before and after dividend declared 410 dividend payable out of 397, 410 prospectus or reports inviting investments in 392, 394 proxy, vote by 363 public (see Municipal Corporations). quasi, powers of 352 towns and counties are 352 quo icarranto as a means of forfeiture of charter 389, 400 as a remedy of the removal of officers of 362, 364 remedies against, for abuse of power 389, 400 688 i^^DEX. [References are to Pages.] CORPORATIONS — continued. remedies against, for abuse of power, quo warranto, scire facias, mandamus, etc ^°9 for misconduct of officers or directors 394, 395 for fraud of directors in soliciting subscriptions . . . 394, 395 (As between corporation, directors, and third persons, see subdivision, directors and trustees, above.) renewal of, after dissolution 405 scire facias, as remedy for abuse of powers, or in case of defective creation 389, 400 seal of, use of 367 sovereign, as having capacity to sue and be sued 377, 380 status of, whether domestic or foreign 352, 354, 381, 383 foreign, may be excluded by State 353, 382 may be taxed or licensed 353 compelled to appoint an agent 382 cannot be compelled to surrender constitutional rights 353, 382, 383 are persons within Fourteenth Amendment 74, 75 private, are not citizens within Fourteenth Amendment . 131, 353 members presumed to be citizens in order to confer jurisdiction in the United States courts 353, 377 (See FoREiGX Corporations.) subrogation of creditor of, claiming under ultra vires loan, to position of creditor paid 360 n. subscriptions to stock in 392, 393, 406, 408 (See Stock Corporations.) suits by and against 376, 381 suits by by foreign corporations 377 in Federal Courts 377 by foreign states or sovereigns 377 by States of the United States 377 (See Foreign Corporations; State; Sovereign.) suits against foreign corporations 378, 379 foreign state or sovereign ... 379 State, in own court 380 State, in United States Courts 380 surrender of charter by 400 tort, capacity of to commit 368, 369 assault, nuisance, trespass, libel, fraud, false imprisonment, and conversion 368 malice and for malicious prosecution 368, 369 towns and counties are quasi 352 (See Municipal Corporations.) trustees of (see subdivision, directors and trustees). trusts to 371, 375 ultra vires, acts of 356, 359 meaning of expression ... 356 may be a violation of director's duties to stockholder or an act beyond capacity 356, 359 a breach of duty to stockholders may be waived by them 357, 359, 396 ixDEx. 689 [References are to Pages.] CORPORATIOXS — continued. remedies of opposite party to a contract which is . . . 357, 358 how far it renders contract void 358 359 distinction between executory and executed contracts .... 359 cannot be raised by a stranger 359 visitation of charitable 334. 339 (See Charitable Corporatioxs.) wills, of real estate to (see subdivision, devises). of personal property to 369, 632, 633 winding up of, under English Companies Acts 401, 402 CORPOREAL IMPOTENCE, as involving the validity of marriage I47 (See Marriage.) CO-SERVANTS, ^to are 330-334 (See Master axd Servant.) COUNSEL, right of accused to assistance of, under United States Constitution . 62 under constitution of New York . 62 COUNSEL FEES. (See Divorce.) COURTS, State, when decisions binding elsewhere 21 24 in sister States 21 in England o]^ in Federal Courts 21-25 binding except where United States Constitution, treaties, or statutes otherwise provide 22 as to construction of State statute and Constitution . 22, 23, 24 as to rights of person and property, when 22, 24 not binding when statute not construed by State Court . . 23 dictum as to State statute not binding 23 decision as to State statute must not infringe United States Constitution 23 not binding on points of equity jurisprudence .... 24 nor in cases involving commercial law and general juris- '' prudence 24 25 nor where commercial question grows out of application of State statute 24 25 of England, decision of, not binding unless part of common law of State 21 Federal, decisions of, binding on State as to construction of United States Constitution and laws made under it, in other cases not . 21 Federal, remedies in, in equity cases based on general rules of Eng- lish law 23 24 Federal, practice in common-law causes follows State practice . 23, 24 Federal, jurisdiction unlimited in suits between citizens of different States 71 of England, appeals in 19 common law, trial of actions in by jury 46 United States Supreme, must review actions triable by jury accord- ing to rules of common law 54 U 690 i^^^^- [References are to Pages.] COURTS — continued. Federal, trials in, as affected by Amendments to Constitution . 59-71 Federal, power to issue habeas corpus 99-103 ecclesiastical, displaced in England by a court of probate .... 599 CREDITORS, rio-hts of, in case of voluntary settlement by husband upon wife . 216 of^'corpor'ation, capital trust fund for, rights of, on dissolution 397, 401- 405, 409, 412, 413 rights of, in equity to follow trust funds and proceeds . . . 456, 457 right of, as to copyrights 495 rules applied when debts are satisfied by legacies to ... 624, 625 composition deed with 565, 566 (See Composition Deed.) assignment for the benefit of (see Assignment for Creditors). CRIME, trial, to be by jury, and in State where committed 59 trial, to be speedy and public 60 infamous and non-infamous, defined 60 regulations as to trial for, under United States Constitution . . 60-67 necessity of indictment by grand jury, in capital, etc., cases . . 60, 61 rights of accused to be confronted with witnesses against him . . 61 to compulsory process to obtain witnesses 61 to assistance of counsel 62 cannot be compelled to testify against himself 63 (See Corporation; Witnesses; Counsel.) accused cannot be put twice in jeopardy 62-67 (See Jeopardy.) when committed on high seas 122 when committed by one owing local allegiance 122-124 when result of cause set in motion in another State 122 •when done under command of foreign State 123, 124 when committed by citizen abroad 124 when husband liable for wife's 206 liability of infant for his 303 legislation against, for the protection of trade-marks 554 forfeiture for 555^ 556 no forfeiture until conviction 555 doctrine of relation as applied to forfeiture 555, 556 chattel considered as itself an offender 555, 556 forfeiture because of attainder for treason 556 CRIMINAL CONVERSATION, defined 252 evidence of wife in action for 231, 232 CRITICISM, when privileged . 89 CRUELTY, as a defence to divorce on the ground of adultery .... 167, 168 as a defence in an action for separation 185, 187, 189 CUMULATIVE LEGACIES, what are gl2 rules for determining 612 613 INDEX. 691 [References are to Pages.] CURTESY, defined 192 in England and New York 197 CUSTOM DUTIES, forfeiture for 55g doctrine of relation back to wrongful act upon seizure for . ' 556, 557 CY PEES, doctrine of 31, 608 abandoned 634^ 635 DAMAGES, vindictive and compensatory 77 for injuries causing death 77, 251, 252 (See Lord Campbell's Act.) special, in actions for slander 86 (See Slaxder.) in action for seduction 249, 344 in actions for injuries to child 250 prospective, when allowed 250 expenses when included in, in actions for injury to child .... 250 for mental suffering not recoverable 253 when servant liable to master over for 327 action for, by servant on wrongful discharge 328 under law of eminent domain 427-430 for infringement of copyright 505 for infringement of patent 540 DEAD BODY, property in 453-456 bequest of, by will 454, 455 duty of next of kin as to burial of 454, 455 duty of executor or administrator as to burial of 648 DEATH, civil, at common law and under the law of New York 78 •civil, as affecting marriage 148, 161 action for injuries causing (see Lord Campbell's Act). injuries resulting in, in admiralty 252 DECEIT, action against directors or corporation for fraudulent prospectus or report 392, 393 DECISION, considered as a precedent 16, 17 rules for determining value of 17 rank of tribunal 17 thoroughness of argument 17 ability of the court 18 grade of court, whether superior or inferior 18 intrinsic merits of report itself 18 distinction between what decided and dicta 16, 19 distinction between what is binding and what is argument merely 19 692 INDEX. [References are to Pages ] DECISION — continued. of appellate, binding on inferior court 19 binding on the very court that rendered it 20 of courts of sister States and of England merely argument ... 21 Federal, when binding on State court 21 (See Courts; Practice.) must be determination of controversy by court 4, 15, 16 to be ascertained from report 15-27 (See Reports.) followed as precedent in later cases (a) in England; (6) in the United States -0 of State court, when binding on Federal courts 22-25 (See Courts.) when reversed, overruled, questioned, limited, or distinguished . 17, 27 when affirmed, approved, or followed 27 nisi prius, value of • 1 ' DECREE, distinction between " judgment " and 560 (See Judgment.) DEDICATION, of literary works 489 (See Literary Property.) DEFAMATION. (See Libel, Slander.) DEMONSTRATIVE LEGACIES, what are ■ 610, 611 DE^'IAL, as a defence in an action for libel or slander 91 as a defence in an action for divorce 167 DERELICTS, in admiralty law defined 478-480 DESERTION, by husband, effect of, on liability to support wife 202 by wife, effect of, on liability of husband for her support .... 203 by husband, effect of, on wife's power to contract 210 DEVASTAVIT, executor's liability for 662-664 DIRECTORS. (See Corporations; Stock Corporations.) DIRECTORS' LIABILITY ACT OF 1890 394 DISFRANCHISEMENT, of members of corporations 360-362, 365 (See Corporations.) DISSOLUTION, of marriage (see Divorce). of corporations (see Corporations). DISTRIBUTION OF INTESTATE'S ESTATE, at common law 638 under Statute of Distributions . 443-446, 639 Roman law as to 639, 640 advancements, doctrine of, in relation to 640-643 (See Advancements.) INDEX. 693 [References are to Pages ] DISTRIBUTION OF INTESTATE'S ESTATE —continued. domicile as affecting 642 escheat where owner dies without successor 557 (See Executor and Administrator ; Succession.) DIVIDENDS. (See Corporations; Stock Corporations.) DIVOPtCE, admissions as evidence in action for 164 agreement of separation not a bar to 172 alimony, where marriage is annulled 159, 160 upon dissolution of marriage 163-167 pendente lite, when allowed 163-166 rules as to amount 164-166 rules as to permanent 171-173 allegations, specific, in action for 163, 164 annulment of marriage, who may maintain action in case of lunacy 144 cause existing at time of marriage 159 alimony and counsel fees in 159, 160 effect of 159, 160 causes for annulment existing at time of marriage 159 children, legitimacy of 173 custody of 174-176 support of, after 239 collusion, to obtain 163, 170 condonation as a defence to 167-169 connivance as a defence to 169 counsel fees in an action for annulment 159 in an action for divorce 166 cruelty as a ground for separation 185-187 (See Separation.) death of party, in an action for 162 defined . 159 defences, in action for 167-171 denial 167 recrimination 167 condonation 167-169 procurement 169 connivance 169 collusion 170 delay 170 delay, as a defence 170 denial, as a defence 167 desertion, as a ground for separation 187, 188 (See Separation.) dissolution of marriage by judicial decree 160, 161 dower of wife, as affected by 176-178 effect of 171-179 alimony, rules as to 171-173 legitimacy of children 173 custody of children 174-176 property rights 176-178 prohibition of future marriage 178, 179 1 694 INDEX. [References are to Pages,] DIVORCE —continued. evidence in action for • 164 expenses and counsel fees in an action to annul marriage . . . 159, 160 in an action for divorce 166 foreign 179-185 marriage made out of jurisdiction 180, 181 domicile of parties as affecting 181-184, 230 absence of defendant from jurisdiction 182 fraud in the proceedings 184 foreign marriage, jurisdiction to grant, when 180, 181 fraud in proceedings for foreign 184 procurement of the commission of the offence 169 connivance in the offence 169 collusion to obtain 170 future marriage, prohibition against, after 178, 179 insanity, who may maintain action to annul a marriage in case of . 144 of party . 162 jurisdiction of court to grant 161, 164 in New York 161 of foreign marriage 180, 181 domicile of parties as affecting 181-184, 230 absence of defendant from 182 marriage settlement as affected by 177 New York, jurisdiction of parties in 161 parties to the action 162, 163 death or insanity of party 162 jurisdiction of court 161, 164 jurisdiction in New York 161 procedure, in action for 163-167 alimony pendente lite 163-167 collusion 163, 170 specific allegations 163, 164 evidence, admissions 164 in an action for separation 188-190 procurement as a defence 169 property rights after 176-178 recrimination as a defence 167 separation, judicial 185-190 ci'uelty 185-187 desertion 187 188 procedure, alimony 188-190 DOMESTIC RELATIONS, defined 141 (See Husband and Wife; Parent and Child; Guardian and Ward; Master and Servant.) DOMICILE, as affecting lawfulness of trade in time of war 139 as affecting capacity to marry 146, 147, 157, 158 as affecting divorce 180-184 as affecting construction of marriage settlements 223, 230 of husband that of wife ' 030 as affecting capacity of married women to deal with property . . 230 INDEX. 695 [References are to Pages.] DOMICILE — continued. right of wife to acquire new, after separation 230 of origin 255 of legitimate child 255 when changed on death of father 255 when changed on death of both parents 255 when changed by marriage 255 of parent of child, as determining legitimacy 258, 259 effect of change of 259 as to inheritance of real estate 259 of illegitimate child that of the mother 263 of ward, power of guardian to change 279 of infant as affecting right to contract 284 of infant determines capacity to make will of personalty .... 286 of infant not changed by own act 297 of lunatic judicially declared insane 310 of apprentice not changed by own act 322 of a corporation 381, 382 as affecting the distribution of intestate's estate 642, 643 law of, solemnities of a will depending on, distinction between real estate and personal property 587 (See Will.) DONATIO MORTIS CAUSA . 668 DOWER, how affected by divorce 176-178 defined 232 DRUXKARDS, habitual, statutory rules as to the care of 310 DUE PROCESS OF LAW, meaning of, in Fifth Amendment 68, 69 provisions for restraint on legislative as well as judicial and execu- tive action 68 what implies . . . 68 resource to common law for meaning 68, 69 considered with expression " law of the land " . • 68 as used in Fourteenth Amendment 73-77 grand jury not imperative in criminal cases 73 State police power not interfered with 73 liberty of contract preserved « 73 (See Police Power.) opportunity for all litigants to be heard 74 preference may be given to one cause over another ...... 74 State may have different rules for different parts of its ter- ritory ,..,....,.. 74 public reasons may justify special rules 74 nuisances may be summarily abated 74 as related to police power 432 what is, respecting prohibitory liquor laws 440 DURESS, kinds of 79 marriage obtained by 144, 160 696 INDEX. [References are to Pages.] DUTIES. (See Custom Duties.) DUTY when imposed by statute ^ when imposed by rule of law ^^^ ECCLESIASTICAL CORPORATIONS, do not exist in the United States 354, 38o ECCLESIASTICAL LAW, how related to civil law 1-, 14 not part of American common law 15, 161 provisions of Magna Charta respecting jury trials did not extend to trials under ^" when considered part of common law 161 restitution of conjugal rights under 225 confers no power to appoint guardians except ad litem 275 EDUCATION, compulsory laws for 237 religious and moral, of child 245 of ward by guardian 279, 2S3 EMANCIPATION, of child by parent 247 EMINENT DOMAIN, exercise of, by local authority must follow statute 36 private property taken for public use when unconstitutional ... 42 land acquired by corporation, under no reversionary interest in grantor 405 principles of, stated 425, 426 condemnation, under law of, defined 427 property, what is under law of 427-430 taking, what is under law of , . . . . 428-430 as applied to occupation of streets by elevated railways . 428, 429 distinction between public use and public necessity, under law of 430, 431 (See Public Necessity.) both real and personal property may be taken by , 559 personal property, as well as real estate, protected by the Consti- tution 559 destruction of personal property without compensation in cases of inevitable necessity .... 430, 431, 559 requiring county to issue bonds for State improvements is not a case of, but taxation 559 nature of 559 EMPLOYER. (See Master and Servant.) EMPLOYERS' LIABILITY ACT, 1880 335 EMPLOYMENT, same common, defined, scope of 331, 334 in law of master and servant 339-342 INDEX. 697 [References are to Pages.] ENGLISH LAW, Petition of Rights 47 Habeas Corpus Act 47 who may apply for writ of habeas corpus under 95 BiU of Rights 48 Act of Settlement 48 Tenure of Judicial Office Act 49 Act of 11 & 12 Wm. III., c. 6, modifying the common law against inheritance by aliens 134 statutes against incestuous marriages 145, 146 statute as to second marriage where fii'st spouse is absent and un- heard of for seven years , 148 married women's laws 207-215 statutes as to wills by married women 224 statute as to the maintenance of poor relatives 233 Infants' Custody Act 243 Lord Campbell's Act, allowing recovery for injury causing death, 251-253 statute permitting proceedings to establish legitimacy . . . 264, 265 Statute of Jointm'e 298 Factory Acts 301 statutes as to apprenticeship 318 Act for Winding up Corporations 402 Act of 31 Edw. III., stat. 1, c. 11, providing for the appointment of administrators 445 Statute of Distributions 446 registration of trade-marks under 552 rights of foreign assignees in bankruptcy under 579 origin of the power to make a will under . 582 as to the making of wills 585-599 ENTICEMENT, of wife, suit for, by husband 225 of servant, suit for, by master , 344 of master, suit for, by servant 345 ENTIRETY, tenancy by - . . 192 in New York 197 EQUALITY OF PROTECTION. (See Civil Rights ; Due Process OF Law.) EQUITABLE CONVERSION, reconversion of proceeds of sale of infant's land 278 as applied to alien land-holding 132, 133 of land by direction in will as affecting right of corporation to take as devisee 373 defined 420 EQUITY, origin in lack of legal remedies 12 governed by special rules worked out through precedents ... 12, 13 provisions of Magna Charta as to jury trial do not extend to . . . 46 jurisdiction as to custody of children . 174 power over estate of child to direct maintenance from ..... 235 jurisdiction over persons and property of infants .... 242-244, 245 698 INDEX. [References are to Pages.] EQUITY — coniitiued. power of, to appoint guardian of minor child ^7* procedure in, to make infant ward of the court 280, 281 rules for protection of infants 297-300 marriage settlements 297 equitable jointure 298 appointment and control of guardian ad litem 299 jurisdiction of, over idiots and lunatics 306 jurisdiction of, over corporations to enforce trusts 385-389 to remedy abuses of directors 396 to enforce claims of creditors 378, 401 to protect creditors and stockholders on dissolution . 404, 405, 411 trusts in personal property in 456, 457 creditor's right to follow trust fund in 456, 457 jurisdiction of, over copyrights 505 " " patents 536, 539 ESCHEAT, in the case of real property 557 treasure-trove, shipwrecks, and estrays and 557 ■where owner dies intestate without successors 557, 558 in England bona vacantia vest in the king 557 public administrator's duty to take charge of vacant estates . . . 558 ESTOPPEL, as growing out of married woman's covenant of warranty .... 210 guardianship by 272 in case of affirmation by infant that he is of age 286, 287 in pais infant not bound by . 286, 287, 297 against corporation using false name 356 as applied to licensee of a patent 529 ESTRAYS, ownership of 476 title of finder to 557 EXECUTION, enforcement of judgment by 560 (See Judgment.) EXECUTORS AND ADMINISTRATORS, ' actions, what survive to 650-651 when liable on an implied contract for omission of duty . . . 651 against, on testator's contract 651 right of, under Lord Campbell's act 251, 252 may sue, for damages to deceased's estate caused by death . . 251 right to sue for mutilation of deceased's body 454 administration in probate court 666 administration suits 664-666 administrators, distinctions applicable to 645-647 letters of administration 645-646 cum tesiamento annexo 645 de bonis non 645 durante absentia 646 durante minore cetate 646 INDEX. 699 [References are to Pages.] EXECUTORS AND ADMINISTRATORS — con^mwecZ. pendente lite 646 durante animi vitio 646 selection of, by statutes 646 husband as, of wife's estate 194, 197 ■when husband liable as, of wife's estate 199 incapacity of infant to become 297 advertisement, for claims by 649 ancillary administration 667, 668 assets, what are 648 distinction between legal and equitable 648 real estate as 651-654 collection of 648-654 conversion of, and investments 660 collection of claims due the State 649 bonds, executor need not give 644 burial of deceased, duty of 648 business of decedent, continuation by 658-660 care and preservation of the estate 660-664 duty to insure 660 conversion of assets and investments 660 liability for waste of assets, or devastavit 662-664 when liable for co-executors' waste 662, 663 co-executors' waste, liability for 662, 663 collection of claims due the estate by 649 contracts of 658 debts of decedent, priority of, due the United States or particular state 649 order in which property should be used in the payment of . 652-653 distinction between charge and direction as to the mode of paying 652 testator may exempt personal property 652 residuary devise treated as specific 652, 653 what court has power to take land for 653, 654 devastavit or waste of assets, liability for 662-664 distribution of estate 657, 658 when no will • 657 to an infant distributee 657 where distributee is unknown or dies 658 duty on legacies and succession 657 executors, distinctions peculiar to . 644, 645 need not give bonds 644 title dates from testator's death 644 may bequeath executorship in absence of statute 644 de son tort 644 when under some disability 645 when infant is appointed 645 married women acting as 645 right to undisposed residue of testator's property 638 general duties of 648-664 (See Appropriate subdivisions under this Title.) husband as administi-ator of wife's estate 194, 197, 109 infant, incapacity of to be 297 700 iND^^- [References are to Pages.] EXECUTORS AND ADMINISTRATORS - con^muerf. where appointed executor payment to an infant distributee oD/ insurance, as to duty of to make ' fi«A investments by, and conversion of assets ....... „ ^^^^ judicial proceedings administration suits ««« administration in the probate court r-a fi^7 legacies, payment of • • ^ ~ not payable until one year after testator s death b&i in what currency specific bequest should be delivered ' ' ' .."z security to refund „* „^„ intereslon ' ' ' ' ^^^I'J duty on legacies and succession o57 letters, testamentary ' ' * a A Sft of administration o*^' '^l^ liability of, limited to amount of assets received 6ol for waste of assets or devastavit 662-664 for co-executors' waste ... 6^-» ""^ management of the estate 658, 660 contracts of personal representative 658 continuing business of decedent 658-660 married women acting as 645 public administrators' duty to take charge of vacant estates ... 558 real estate, as assets 651-654 what court has power to take, for testator's debts .... 653, 654 recovery of property in a foreign country or another State .... 644 refunding of legacies, security for 655 residuary devise treated as specific in payment of debts . . . 652, 653 residue, executors' right to 638 stock, may vote on at stockholders, meeting 363 unknown distributee, distribution of estate where ...... 658 EXPATRIATION, right of, theories as to 139 EX POST FACTO LAW, nature of 53, 54 different meaning at common law and under Constitution .... 53 differs from retrospective law 54 instances of, making an act, innocent when done, criminal ... 54 aggravating or making crime greater than when committed . 54 changing punishment after offence committed 54 altering rules of evidence 54 changes in law or procedure altering situation of accused to his disadvantage are 54 change in kind of punishment is . 54 law requiring history of criminal to be considered in passing sentence not an 55 may be void as to past, and valid as to future offences 55 applies to criminal matters only 55 prohibition applies to Congress, legislatures, and constitutions . . 55 statute making time of execution of death sentence uncertain an . 55 INDEX. 701 [References are to Pages.] EX TERRITORIALITY, doctrine of, as exempting from local allegiance 123 EXTRADITION, as depending on international law or treaty 103, 110 interstate, under United States Constitution and statutes . . . 104-109 crime for which demand made . 105 indictment or affidavit, validity of determined by liaheas corpus 105, 106 who is a fugitive from justice, how determined 106 duty of asylum State 107 the warrant, its review by habeas corpus 108, 109 foreign, depending on treaty - ... 110 fugitive tried for offence for which extradited, and no other . 109-112 treaty resorted to for rule of decision Ill, 112 crime one at common law or statutory 112, 113 proceedings in aid of, under United States legislation . . . 113, 114 complaint, warrant, examination before commissioner, warrant of commitment, surrender 114, 115 requisition of demanding State or country ...... 104, 114, 115 (See Habeas Corpus). FACTORY ACTS, for protection of children in employment 237, 300, 301 for protection of servants . 335 FAILING DEBTOR. (See Assignment for Creditors; Bank- ruptcy AND Insolvency; Composition Deeds.) FALSE IMPRISONMENT, action for .... 94, 95 FINDING, method of gaining title 472-480 on land 472-478 at sea 478-480 treasure trove, under law of 475 estrays under law of 476 wreck under law of 477 derelict 479 when larceny , 473 FINE, as a method of conveying vrife's land , . . . . 207 and recovery, as a method of conveying infant's land ..... 290 FOREIGN CORPORATIONS, not persons within fourteenth amendment 74, 75 defined 352 power to act outside of State where created 353 recognition elsewhere depends on comity 353, 382 conditions imposed 353 taxes and licenses 353 prohibition against removal of suits 353, 382, 383 appointment of agent 382 not citizens entitled to privileges and immunities 353 'JQ2 INDEX. [References are to Pages.] FOREIGN" CORPORATIONS — co?irmwef/. citizens for purpose of conferring jurisdiction on courts . . . 353, 377 acquisition of land by, in another State, by deed or devise . 370, 373, 375 suits by, in Courts of other States and Federal Courts 377 suits against, at common law 378 under statutes 378-381 by attachment 378 by service on agent 378 by service on public officer designated by law 379 by service on officer temporarily in State 379 contracts of void, if conditions imposed on doing business not com- plied with 382 members when presumed to be citizens of foreign State . . . 353, 377 rights of a foreign assignee in bankruptcy of 581 FOREIGN MARRIAGE OR DIVORCE. (See Marriage; Divorce.) FOREIGN SOVEREIGN OR MONARCH, suits against, in courts of other countries 3, 379 suits by, in courts of other countries 377 FORFEITURE, title by 555-557 applicable both to real and personal property 555 for a crime 555, 556 no forfeiture until conviction 555 doctrine of relation applied to 555, 556 chattel considered as itself an offender 555, 556 extended to all kinds of personal propei'ty, whether in possession or in action 556 application to admiralty law 556, 557 under a contract 556 because of attainder for treason 556 for violation of customs, internal revenue, and navigation laws . . 556 classification of 556 proceedings to cause, an action in rem 557 as applied to admiralty law 557 of charter by corporation 389, 400 of stock in corporation 365, 406, 407 (See Corporations; Stock Corporations.) FOUNDER AND FOUNDATIONS, defined 385 FRANCHISE, of corporation cannot be sold under a judgment 378 FRAUD, effect of marriage obtained by 144, 160 (See Marriage.) of infant in making contract 286 liability of infant for 286, 302 committed by servant, liability of master for 340 in prospectus or report of directors or promoters 392-396 INDEX. 703 [References are to Pages.] FRAUD — continued. in sale of personal property does not prevent title passing .... 423 as an element in bankruptcy proceedings 575 legacies procured by g32 FREEDOM OF SPEECH AND OF THE PRESS, Congress shall make no law abridging 56 protection does not extend to immoral publications ... 57, 117, 118 ■what are obscene publications under clause 57 law prohibiting mailing of obscene letters constitutional . . .57, 118 (See Letter.) private sealed letter within the act 57 constitutional provision does not justify libel or slander .... 57 FUGITIVE FROM JUSTICE, who is, within the meaning of the Constitution 106 FUTURE ESTATE, in personal property 460-467 remainders 461 executory devises 461 powers 462 suspension of ownership 464-467 GENERAL LEGACIES, what are 611-613 GIFT, causa mortis 668 GOOD-WILL, relation of, to trade. marks 548 GRAND JURY, indictment of, in case of capital crimes 60 meaning of term as used in Constitution 46, 60 indictment of defined 60, 61 indictment of not corrected at trial, where constitutional clause applies 61 GUARDIAN AND WARD, ancillary guardian, when appointed 276, 280 appointment and removal of chancery and probate guardians, pro- cedure for 275, 276, 280, 281 civil law, i-ules of , as to 268-270 control of equity over guardian ad litem 299 answer submits rights of infant to court 296 right of " parol to demur " 299 effect of failure to appoint 299 duties of guardians 280-283 to make proper investments 282 to account 282 not to act adversely 288 to educate ward 283 foreign guardian, power of .... 280 704 INDEX. [References are to Pages.] GUARDIAN AND ^YAFvD — continued. kinds of guardians in English and American law 270-277 by nature 270 by nurture 270 in socage .....-••• 270-272 by estoppel 2 / 2 testamentary guardians 272-27-1 chancery guardians 274-275 probate or surrogate's guardians 275-276 ad litem and special guardians 276 power of guardians 277-280 over ward's personalty ■ 277 over ward's realty 277-279 (See Infants.) to change ward's domicile 279 as to religious education 246, 279, 283 as to foreign assets ... 280 as to person of ward 280 of a foreign guardian 280 undue influence of guardian over ward 283 ward of court, when infant becomes 280, 281 GUARDIANSHIP OF INFANTS ACT 246 HABEAS CORPUS, alien enemy, writ cannot be granted in favor of 96 children, to determine the custody of, as between parents . 97, 98, 174, 240-242 under New York Revised Statutes 242 application for writ of, by mother of illegitimate child to obtain custody 263 by guardian to obtain custody of ward 273 to State court for discharge of minors enlisted in United States army 296 civil proceeding, application for, is 103 discharge of prisoner brought up on writ of 97, 98 where detention claimed under warrant, etc 97 where detention is claimed under general principle of law, e. g., by parent of child, etc 97, 98, 174 (See Parent and Child.) when res adjudicata 99 English Act, who may apply for under 95 extradition, to bring up one held under, proceeding for . 105, 108, 114, 115 (See Extradition.) New York law, who may apply for under 95 not applicable when detention is by process of United States courts 95 nor when held on final judgment of any court 95 under New York Revised Statutes to determine custody of child, 242 petition, contents of 96 punishment for disobedience of writ 96 remand of prisoner brought up on writ of 97 INDEX. 705 [References are to Pages.] HABEAS CORTVS — continued. return to writ of . . , 96 97 review is not a writ of 97 State courts, issuance of writ by, when prisoner held under United States authority 200, 101 for discharge of minors enlisted in United States army . . . 269 suspension of writ of, constitutional prohibition against .... 58 provision applies to privilege, not to writ 58 power of belongs to the legislative branch of government . . 58 instances of during the civil war 58 traverse to return to writ of 97 United States laws, application for writ of under, when prisoner is held in violation of 76 cannot be granted under, where one is abducted from a State and held in another under a criminal charge 76 when issued by Federal courts 99, 103 provision of United States Revised Statutes 99, 100 appeal to Supreme Court from conviction of lower court . 100, 102 when prisoner held under State authority 100, 103 jurisdiction of Supreme Court 99 ward, application for writ of, by guardian to obtain custody of . .. 273 writ itself, contents of 96, 97 HABEAS CORPUS ACT, provisions of 47, 95 extended provisions of Magna Charta 47 generally adopted in the United States 48, 95 extended by later statutes in England 48 right guaranteed by, may be suspended by English Parliament when 48 HEIR, must be born in lawful wedlock 259 HIRING. (See Master and Servant; Contract.) HOLOGRAPHIC WILL, meaning of, under the Roman law 586n HOMESTEAD LAWS, benefit of, accrue to children 255 HOTCH-POT, meaning of 640 HUSBAND AND WIFE, administrator of husband, right of, in wife's estate ... - 194, 197 admissions by wife out of court, how far binding on husband . . 231 alienation of affection, right to recover for ....... 213,225 annulment, dissolution and judicial separation 159-190 (See Divorce.) chattels real of wife, husband's right in, at common law .... 195 effect of statutory changes 197 children, custody of. (See Divorce; Parent and Child.) choses in action of wife, husband's rights at common law . . . 193-195 effect of statutory changes 197, 198 civil damage acts, rights under 226-229 (See Civil Damage Act.) 45 yOQ INDEX. [References are to Pages.] HUSBAND AND WIFE — continued. confidential communications between 231 contracts of wife, her capacity to make 206-215 at common law 206-211 could purchase, but could not hold lands without husband's consent 207 could convey land by fine 207-210 could contract when deserted by husband 210, 211 under statutes 198, 211-21.5 may deposit money in savings banks 211 . may insure husband's life 211-213 may patent inventions 213 has a right to her earnings 213 may control her separate estate and carry on business . ■ 213 her general power to contract 214, 218 may enter into partnership with husband .... 214,215 her right to make other contracts with him 214 may sue in her own name for injuries to person and prop- erty 213, 226 conveyance by wife under New York Revised Statutes 208, 210 conveyance by wife under English Married Women's Prop- erty Act .... 209 conveyance by wife to husband or vice versa . . . 209, 210 conveyance by estoppel 210 creation of the relation, capacity to marry, marriage contract and legal consequences 142-159 (See Marriage.) crimes of wife, husband's liability for 206 criminal conversation, in action for, wife cannot testify for husband 231 debts of wife, duty of husband to pay, an/e-nuptial 198-200 liability of wife's sole and separate estate for 199 (See Sole and Separate Estate.) entirety, estate by, at common law 192 not affected by statutory change 197 fee of wife, husband's right in, at common law 191, 192 eifect of statutory change 197 fine, wife's conveyance by at common law 207 legal consequences of the relation 190-233 libellous letter about husband addressed to wife 81 life estate of wife, husband's right in at common law 192 effect of statutory change 197 New York, married women's acts in 198, 211-215 partnership between . . 214 personal violence by husband, wife's protection against .... 229 personalty of wife, husband's right in, when tangible, at common law 196 effect of statutory changes 197 pin-money trust 219 property of wife, husband's right in at common law and under statu- tory changes 190-198 real estate of wife, husband's right in 191-198 at common law , 191-196 when in fee 191, 192 in estate by entirety 192 INDEX. 707 [References are to Pages.] HUSBAND AND WIFE — continued. iu life estate jgo statutory changes 196-198 wife could purchase, but could not hold lands, without husband's consent oq? could convey by fine at common law 207-210 conveyance by wife under New York Revised Statutes . . 208-210 conveyance under English Married Women's Property Act . . 209 conveyance by wife to husband or vice versa 209, 210 conveyance by estoppel ..,,., 210 sepai'ate estate of wife 215-'^'^3 under antenuptial settlement 216 under postnuptial settlement 21 f] creditors' rights 216 under settlement, with view to separation 217 when created by other methods than a settlement 218 pin-money trust 219 rights of wife over 219-223 suits against husband for protection of 221 disposal of by wife 220-224 services, right of husband to recover for the loss of wife's . . 225, 226 settlement, wife's equity in 194 antenuptial 216 postnuptial 216 made with view to separation 217 society, right of either to that of the other , 225 suits for restitution of conjugal rights 225 right to recover for alienation of affections 213, 225 for enticement, loss of service and seduction .... 225, 226 suits, by wife in her own name for injuries to person and property 213, 226 against husband for protection of wife's separate estate . . . 221 support of wife, husband's duty to 200, 205 when they cohabit 200, 202 desertion by husband 202 expulsion of wife from home , . 202, 203 desertion by wife 203 adultery of wife 203 separation by agreement 204 surname, wife's right to husband's 229 torts of wife, husband's liability for 205 206 will, power of wife to make, of lands 223, 224, 585 of personalty 224, 225, 585 witnesses, when may be, for and against each other .... 230, 231 confidential communications 231 as to acts of violence against her 231 as to secret facts 231 admissions out of court 231 in actions for criminal conversation, etc 231 statutory changes 231 neither may testify as to non-access 261 708 INDEX. [References are to Pages.] ICE, when private property 422 IDIOTS, jurisdictiou of equity respecting 305, 306 (See Lunatics.) IGNORANCE OF LAW, in case of infancy 292 ILLEGITIMATE CHILDREN. (See Parent and Child; Legi- timacy.) INDIANS, status of tribal 311 tribal, owe no allegiance to State 311, 312 tribal, when "persons" 312 when citizens 312 INDICTMENT. (See Grand Jury; Presentment.) INFANTS, antenuptial debts of wife, of liability for 199 administrator, cannot act as 297 civil acts other than contracts 296, 297 enlistment in army 296 contracts of ancestor 296, 299 relinquishment of dower by jointure 297 contracts of apprenticeship 296, 315, 319 payment of taxes 299 support of illegitimate child 262, 209 contracts of, general rule 286, 287 whether void or voidable 286, 295 fraud in making 286, 302 negligence or other tort in course of 286 declaration that he is of age 286, 287 contracts for necessaries 287-289 necessaries defined 287, 288, 289 contract may be implied 289 money borrowed in payment for 289 contracts of, in contemplation of marriage, how affected by statute validating all such contracts 298 crimes, liability for .303 disaffirmance of a contract during infancy or afterward . . . 294-296 general rule ..... 291 recovery of money paid 294 rescinding contract of service 295 by persons other than infant, but in privity with him . . . 295 conveyance of real estate 290 purchase of real estate 291 sales and purchase of personal property 291 distribution of decedent's estate, when distributees are 657 domicile, capacity to act as affected by 285 cannot be changed by 297 equity, special rules in, concerning 297-300 marriage settlement 297 jointure as barring dower of infant 298 duty of guardians ad litem in suits in 299 INDEX. 709 [References are to Pages.] INFANTS — continued. obligation incident to ownership enforced 299 300 rights of unborn children protected 300 executor, where appointed as g45 factory acts, in relation to 300 301 illegitimate child, liability of, to support 262 269 incapacities other than contractual , 297 cannot qualify as administrator 297 nor for office 297 nor change domicile 297 nor make will of real estate 297 estoppel in pais not applicable 297 necessaries of, what are, and contracts for 287-289 ratification by, of voidable contracts 289-294 conveyances of real estate 290 purchases and leases of real estate 291 sales, mortgages, and purchases of personal property .... 291 ratification of indebtedness contracted during infancy . . . 292 knowledge of law as an element in 292 nature of promise 293 sale of land belonging to, under statutes 277-279 under private act 277 279 status of 284 torts, liability of, for 301, 302 in carrying out contract 286, 302 conversion, replevin 302 fraud 302 unborn children, rights of protected in equity 300 when incapacity to act, contract, marry, commit a crime, etc., ceases 284 will of real estate, cannot be made by 297 INFANTS' CUSTODY ACT 243 INFANTS' RELIEF ACT, 1874 293 INFORMATION. (See Quo Warranto.) INFRINGEMENT, of copyright 502-505 of patent right 531-534, 540 of trade-marks 550-562 no violation of trade-mark to use it for a wholly distinct purpose . 543 INJUNCTION, in restraint of a threatened libel 82 rules governing the right to, to protect a trade-mark 551 INJURIES, causing death 77, 78, 226, 251 causing death committed on high seas 253 INQUEST OF OFFICE, method of recovering land from alien 132 INSOLVENCY. (See Bankruptcy and Insolvency.) INSTITUTES. (See Civil or Roman Law.) INSURANCE, by wife on life of husband in New York . 211,212 assignment of policy by wife 211,212 rjlQ INDEX. [Keferences are to Pages.] INSURANCE — continued. action in equity by creditors to obtain lien on policy 211 companies, foreign, may be excluded from doing business .... 353 INTERPRETATION AND CONSTRUCTION, general rules • ^^^ '^^ reasonable implications as well as express words taken into account .'■■■.■ ^^ words taken in ordinary sense unless having technical meaning 30 intention to be followed 30 but meaning must be found in text 30 whole of writing must be considered 30 difference between interpretation and construction 30 construction and doctrine of c^ ^res 31,608 difference between strict, liberal, and extravagant construction . . 31 later clause repugnant to earlier in same instrument 35 for interpretation and construction of statutes. (See Statute Law.) of wills, rules 603-608 proceeding for the construction of a will 603, 60i (See Wills; Cy Pres.) INVENTION AND DISCOVERY. (See Patents.) INTERNAL REVENUE LAWS, forfeiture under 556, 557 collection of 558, 559 (See Forfeiture ; Taxation.) JEOPARDY, defence of prior 62-67 signification of as used in Constitutiou 63 when accused may be said to be in 63 rule in United States and State courts as to 64, 65 of jury discharged in course of trial, no 63, 64 must be conviction or acquittal 63, 65 must be on trial for same offence, instances 63, 64 rule in England 67 two theories as to 64, 65 if court has no jurisdiction, no 65 where law under which tried void, no 65 where judgment arrested for inherent defects in, no .... 65 where protection waived, no 65 where defective indictment prevents judgment, no 66 where acquittal on variance between indictment and evidence, no 66 where acquittal had by fraud, no 66 where discharge of jury, or adjournment for sickness of judge or juror, absconding of juror, no 66 where nolle prosequi entered, no 66 dismissal of charges before trial, no 66 trial not finished at end of term, no 66 if prisoner acquitted, new trial not granted on appeal for error 67 I INDEX. 711 [References are to Pages.] JOINT LIABILITY, defined 459 contributiou in case of . 459 distinguished from joint and several 459 JOINT OWNERSHIP, in personal property 458-460 partition of property held under 460 JOINT STOCK COMPANIES, how differ from partnership or corporation 351 removal of directors of, appointed for definite period 397 JOINT TENANCY, in personal property 458 JOINT WILLS, as distinguished from mutual 597 JOINTURE, of an infant married woman as barring dower 297, 298 JUDGES in England, terms of during good behavior, unless removed on formal address of Parliament 49 Federal, removed by impeachment 49 discretion of, in discharging jury in criminal trials before verdict 63-65 (See Jeopardy.) JUDGMENTS, defined 560 in personam 560 distinction between " judgment" and " decree " 560 enforcement of, by execution . 560 by punishment for contempt of court 560 for value of property converted does not pass title, until paid . 560 for a specific thing vests title 561 in rem .... 561 in courts of admiralty 561 necessity of notice to owner 561 ownership changed by its own force 562 not affected by repeal of statute under which action brought ... 41 of courts of sister States or of foreign countries when attacked col- laterally for fraud or want of jurisdiction 184 against domestic corporations 361, 378 against foreign corporations 378 when attachment granted 378 on service on agent . , '^''^ on service on public officer 379 JURISDICTION, of subject-matter not obtained by waiver of statute 37 of person sometimes obtained by waiver 37 of United States courts over patents 534 over trade-marks 544, 553 JURY, trial by, in case of felonies secured by Magna Charta 46 trial by, in civil suits at common law secured by Magna Charta . 46 y22 INDEX. [References are to Pages.] J URY — continued. verdict of, must be unanimous 40 accused cannot waive, in capital cases except State statute coufers right • *^ trial by, in felonies preceded by indictment by grand 46 grand, at common law ," ' ' ^^ trials by, reviewed by United States Supreme Court according to rules of common law ^1' ' ^ trial by in Territories in criminal cases 50, 59, 60 meaning of, as used in Constitution and Sixth Amendment ... 59 trial by, in criminal cases guaranteed by Constitution applicable solely to Federal Courts 59 applicable to Territories 60 applicable to District of Columbia 60 right to, exists from beginning 60 not applicable to petty offences 60 (For regulations respecting trials by, in criminal cases, see Crimes; Grand Jury.) trial by, preserved in suits at common law in Federal Courts ... 71 trial by, in criminal cases in State under Fourteenth Amendment . 76 judges as to law and fact, when 81, 82 JUSTIFICATION, as a defence in an action for libel or slander 90-92 (See Libel; Slander.) LAND, acquisition of , by alien (See Alien; Real Estate.) LAPSED LEGACY, doctrine of 614, 615 LARCENY, grand and petty, defined at common law 451 animals subject to 451 when finder of chattel may be guilty of 473 LAW, common, connected with prevailing customs, how prescribed ... 6 due process of (See Due Process of Law.) enactment of statute 8 power of Congress 8 power of State legislature 8 municipal, defined 5-7 of State, what includes 5 private as contrasted with public 3, 4 domain of, what includes 3, 5 includes private international, and conflict of laws .... 5 rules of, applied to State or nation seeking to vindicate a right analogous to private right 5 public, governs controversies in which State a party, or between indi- viduals, when doctrines of public nature involved .... 5 includes international, constitutional, criminal, and administrative 5 rights secured by 2 INDEX. 713 [References are to Pages. ] LAW — continued. sanction of, punishment, prevention, remedy, declaring acts in oppo- sition to right, void 2 States of Union, what consists of 11 statute, how prescribed 6 when takes effect 7 ( See Statute Law. ) substantive and procedure or adjective 2 United States, supreme when conflicting with State 1 (See Common Law; Statute Law.) LEGACIES, abatement of 619-621 residuary, as contrasted with such as are specially named . . 620 demonstrative, as contrasted with such as are pecuniary . . . 620 specific, as contrasted with demonstrative and other .... 620 specific, as between themselves abate proportionally .... 620 payment of some legacies and subsequent waste, effect of . . 621 absolute and conditional 616, 617 conditions precedent and subsequent 616 gift to executor by virtue of his office 616, 617 acceleration of 615, 616 acceptance of, presumed, if beneficial 636 ademption of 621-624 when said to be adeemed 621 when legacy is specific 621, 622 may appertain to general under special circumstances . . . 621 not applicable to demonstrative 622 once adeemed, not restored by subsequent confirmation of will . 622 gift to legatee before death 623 double portions 623 distinction between ademption and satisfaction .... 623, 624 (See subdivision, satisfaction, below.) apportionment of payments on death of life tenant 619 charged upon land 627-630, 652 by implication 627-629 where the question is between the legatee and owner of land considered by itself 627 " mixed residue " 628, 652 express charge 629, 630 effect of 629 of both debts and legacies 629, 630 charitable 633-636 doctrine of remoteness does not apply to 633 cy pres doctrine to uphold 634, 635 superstitious uses 634 mortmain statutes 634, 635 civil death as incapacitating from taking 634 conditional 616, 617 ( See subdivision, absolute and conditional, above. ) contingent 614-616 (See subdivision, vested and contingent, below.) corporations, incapacity of, to take 632, 633 excepted from statute of wills 371-375, 632 714 INDEX. [References are to Pages.] LEGACIES — continued. New York legislation restrictiog bequests to 632, 633 creditor of testator, legacy to 624, 625 cumulative, what are 612 rules for determining 612, 613 two for same amount to same person presumed not . . . 612 legacies in different instruments generally are 612 but simple repetition in different instruments if exact will not be regarded as 612 different instruments must be closely examined .... 612 several gifts to strangers in different instruments presumed to be 613 first and second codicils not regarded as separate instru- ments 613 legacies to "servants"; if descriptive, repetitious ; if to identify, cumulative 613 debtor of testator, legacy to 626 demonstrative, meaning of term 610 pecuniary legacy given with particular security is 610 distinction between specific and, us to abatement and ademp- tion 010, 611 ( See subdivisions, abatement, ademption, above.) duty on . 657 executor, gift to, by virtue of his oflBce 616, 617 right of, to undisposed residue 638 general, what included in 611-613 ademption may appertain to, under special circumstances . . 621 interest on 655-657 will not begin to run until a year after testator's death . . . 655 when implied 655, 656 when legacy is charged on land 655 when given by a parent 656 rule in England when to illegitimate children 657 to wife 657 incidents of 619-627 (See subdivisions, abatement, satisfaction.) lapse, doctrine of 614,615 life tenants, right to enjoy specific legacy in its original form . 617, 618 where consumable 617 to dividends on stock bequeathed 618 apportionment of payments on life tenant's death 619 monk, capacity of, to take 636 murderer of testator cannot take 637 ownership or right of legatee 613-619 (See subdivisions, absolute and conditional, qualified ownership in, vested and contingent.) payment of 654-657 (See Executors and Administrators.) perishable articles, partial gift of 617, 618 if residuary gift of, intent that they be sold and converted into permanent property presumed 617 perpetuities, rule against 615 (See Perpetuitiks.) INDEX. 715 [References are to Pages.] LEGACIES —con^mwerf. qualified ownership in 617-619 articles which can and cannot be used without consuming, where partial gift of 617, 618 life tenant's right to dividends on stock 618 619 apportionment of payments on life tenant's death . . . . 619 repetitious 612 613 (See subdivision, cumulative, above.) residuary, what are 611 may be a residue of portion of estate 611, 612 satisfaction of 624-627 distinction between satisfaction and ademption 623, 624 in general, where to testator's creditor 624 625 of same nature as testator's debt ; equal or greater amount, presumed satisfaction of debt 624 such presumption overcome by slight circumstances . . . 624 to satisfy debt must be of a fixed amount 625 different presumption from general language of will . . . 625 parol evidence admissible to show legatee was a creditor . 625 as between parent and child 625-627 " double portions " 623,625,626 specific, definition of 608-610 mere exemption from general mass of estate does not make be- quest " of the rest " of property specific 609 substitutionary 612, 613 (See subdivision, cumulative, above.) undisposed residue, executor's right to 638 vested and contingent 614-616 doctrine of lapse 614, 615 rule against perpetuities 615 acceleration 615, 616 void 630-637 illegality; remoteness 630,631 fraud 631 uncertainty 631 want of capacity to bequeath 631 incapacity of legatee to take 631 corporations 632, 633 charities 633-636 individual legatees 636, 637 effect of 637, 638 goes to residuary legatee 637 LEGATEE, capacity to take, where civilly dead 634 corporation, capacity to be 632, 633 creditor of testator, as 624, 625 debtor of testator, as 626 executor, gift to, by virtue of his office 616, 617 life tenant's right to enjoy specific legacy 617, 618 monk, capacity to be 636 murderer of testator cannot take as 637 ownership or right of legatee 613-619 (See ExECUTOK and Administrator; Legacies; Will.) 716 INDEX. [References are to Pages.] LEGITIMACY, o^r ., e.. ,. 266, Job et scq. see generally ' j^ when au issue in divorce i-o*ORn Qttl presumption as to • • • i<<5, -ou, -oi rSee Bastardy; Divorce; Parent and Child.) retroactive, what is o;^'- q-q as affected by domicile of parent Joo, -^^ establishment of, by direct proceeding -b4 obscene, law prohibiting mailing of, constitutional, though sealed . 57 imputing an atrocious crime not necessarily obscene 57 property in (See Literary Property.) publication of confidential 49- patent and close, defined 505 of administration 645, 6-16 testamentary "'^^ (See Executor and Administrator.) LIBEL, civil and criminal libel defined 80-82 communications absolutely privileged in actions for 89 words used in judicial proceedings 89 words used in legislative debate 89 official reports of legislative debate 90 communications conditionally privileged in actions for, defined • . 87 charges against officers to their superiors 88 reports of court proceedings 88 criticisms on acts of public men 88 statements concerning the character of servants, tradesmen, etc. 88 criticism on literary works, etc 89 defences to action for 90 defined 80 denial and justification as defences in action for 90 injunction, when cannot be granted to prevent 82 trade, may be enjoined in England 82, 83 or where pursuant to conspiracy 82 jury judges both of law and fact, when 81, 82 justification, in criminal action for 91 in civil action for 91 defence of, must be proved, with accuracy, in action for ... 92 if attempted and fails damages enhanced 92 malice in an action for, when 87 inferred when defendant justifies 91 mitigating circumstances in actions for 92 general bad character of the plaintiff 92 provocation by plaintiff 92 insanity or intoxication of defendant 93 retraction and apology 93 conduct of plaintiff conducing to reasonable belief in guilt . . 93 evidence bearing on motive of defendant 93 on administration of justice 82 privileged communications in actions for 87, 90 INDEX. 717 [References are to Pages.] LIBEL — continued. publication of ...... 80, 81 distinction in civil and criminal 80, 81 indirect, sufficient 81 by seller, when ignorant 81 each a distinct injury 81 question of law, when 81 LIBERTY. (See Personal Liberty; Habeas Corpus; Bail; Re- ligion ; Freedom of Speech.) LIBRARIES, devises to, in trust in New York 372-375 LICENSE, to practice avocation when unconstitutional 128, 129 imposed on foreign corporation 353 as exercise of police power 433-438 of a patent right 526, 531 LITERARY PROPERTY, at common law, title to 488-494 plays 488-490 letters 490 pictures and statues 491 translations, annotations, catalogues, etc 491 lectures, trade secrets, other cases of breach of trust, etc. . 492-494 remedies for infringement of rights in 494 immoral publications not recognized as 493 dedication, effect of, upon 489 (See Copyright.) LORD CAMPBELL'S ACT, provisions of ... - 77, 251 as re-enacted in the several States 78, 251 general rules as to recovery under 252, 253 effect of contributory negligence 252 local effect of statute 252 extends to actions in personam only 252 damages for mental suffering not recoverable 253 not a bar to action for damages to estate of deceased .... 251 when applicable to injury committed on high seas 253 right of child in recovery under, for death of father 255 LUNATICS, jurisdiction of equity over , . . . . 305, 306 mode of proceeding to determine who are 306, 307 inquisition "06, 307 when superseded or suspended 307 effect of adjudication 307-311 contracts, wills, etc 308 committees or guardians of 309 foreign committee or guardians 310 theory on which the lunatic's estate should be managed by the court 309 rj-^Q INDEX. [References are to Pages.] MAGNA CHARTA, . indictment by grand and trial by petty jury in case of felonies . 45, 46 does not prevent proceeding by information in case of misdemeanor . 46 doctrines of, adopted in United States 46, 49 trial bv iury in civil common-law cases secured by 46 -^ •• '' (See Jury.) meaning of expressions "judgment of his peers " and " law of the land" 46 MALICE, in libel and slander 87, 90, 91, 93 (See Libel; Slander.) MANDAMUS, to place in office persons elected officers of corporations 364 to compel action by corporation . . . , 389 MARITIME. (See Admiralty.) MARRIAGE, ab.sence of husband for seven years, second, after .... 148, 160 ao-e want of, when incapacitates from, at common law and by statute 142, 143 capacity to contract, presumed 142 cohabitation, when evidence of ratification of 150 cohabitation after, without consummation 147 collaterally questioned, when may be 143 common law, when valid at 154 consanguinity and affinity, as affecting capacity for 145-147 consent to, by future words 152 consummation, want of, as a ground for invalidating 147 contracts of, defined . 151 contracts of husband and wife in foi'ce prior to, not affected by, in New York 223 (See Husband and Wife.) corporeal impotence, when incapacitates from 147, 148 deceased wife's sister, as to, with . 146, 158 dissolution of, various modes of 160, 161 (See Divorce.) domicile as affecting capacity of parties to 146,1.57,1.58 elements of, consent, present words, freedom to act . . . 15l', 152^ 154 evidence of, when direct, necessary 152 registration of , as _ 257 indirect, and presumptions as to 154-1.57 cohabitation 255 general reputation 156 declaration of parties 156 recognition 156, 157 force and fraud, when invalidates 144 foreign, validity elsewhere 157-159 (See Divorce; Husband and Wife.) form of, in England 152-154 in United States I53 154 Gretna Green I53 incapacity to contract 142-151 defect in age at common law and by statute 142, 143 INDEX. 719 [References are to Pages.] MARRIAGE — continued. incapacity, — mental unsoundness 143 144 force and fraud ^^44 consanguinity and affinity 145-147 corporeal impotence I47 143 prior marriage 148 miscegenation I49 incestuous, what is I45 law of place, validity of, as determined by 146 157-159 Levitical degrees, when within I45 i4g miscegenation, or mixed 449 (See Miscegenation.) polygamous, what is 443 presumption as to capacity to enter into 142 as to the existence of 154-157 prior marriage I43 registration of, as proof of I57 second, after absence of husband for seven years 148, 160 slaves, as to, between 150 (See Slavery.) validity of, determined by what law , . 157 void or voidable, when 143-151 who may avoid 443 444 (See Divorce.) will, revocation by subsequent , . 595 (See Will.) MARRIAGE SETTLEMENTS, construction as affected by domicile 223 (See Husband and Wife ; Separate Estate of Wife.) of infants 297, 298 MARRIED WOMEN'S ACTS IN NEW YORK 198 MARRIED WOMEN'S PROPERTY ACT, 1882 AND 1884 . . 198 MASTER AND SERVANT, al/er ego, the doctrine of 332 apprenticeship considered in connection with law of 315-323 (See Apprenticeship.) breach of contract of service, by servant 325-327 where contract entire 326 wages " payable monthly " 326 breach of contract by master 327, 328 action for wages 328 action for damages 328 quantum meruit ..... 328 care required of master, in selection of tools . 328, 330 in selection of co-servants 330-336 common employment, when servants are engaged in 331 contributory negligence of servant as preventing recovery against master 330 in use of defective tools 330 in case of negligence of co-servants 334 rjoQ INDEX. [References are to Pages.] MASTER AND SEB.Y AIST - continued. 001 oor co-servants, who are ' " * 00! ttl must be the same common employment 661-660 doctrine of alter ego ^^ under maritime law ^^^ same master - ^^Z under Employer's Liability Act in England .660 volunteer servants 335, 349 discharge of servant, for incompetency or misconduct .... 326, 327 wrongful duties of master, to servant . 327-336 to continue the service and pay the agreed wages .... 327, 328 to use due care in selection of tools, etc 328, 330 to use reasonable care in selection of co-servants .... 330-336 not bound to supply medical attendance 336 nor certify to servant's character 336 duties of master toward third persons 336-343 when under a contract • p'^" toward strangers 337-343 employment of contractor 337-339 involuntary employment 339 act without scope of employment 339 must owe duty, trespasser 342 duties of servant 315-3-7 to continue in service 325, 326 to possess necessary skill 326 to refrain from misconduct subversive of relation 327 to respond in damages for injuries to third persons caused by himself 327 not to disclose trade secrets 327 duty, legal, of master 338 where imposed by statute 338 where imposed by general rule of law 338 enticement of servant, master's right to sue for 344 foreign contract of service brought in question here 346 gratuitous or volunteer service 347-349 compensation, when allowed 347 person rendering, when a co-servant 335, 349 knowledge of servant or notice to . 342, 343 as to viciousness of animal 454 liability of master, for defective tools and machinery .... 328, 330 liability of master for acts of co-servants 331-335 some common employment, and same master 331-333 made to depend on character of act 333 when master works with servant 334 servants brought into collision by rules of master 334 liability of servant to third persons for wrongful acts 346 liability of servant to respond in damages to master for wrongful acts . 327 misconduct of servant subversive of relation of ....... 327 mutual mistake as to existence of relation of, right to compensation 348 negligence of master toward servants in furnishing tools and fellow- servants 328-335 INDEX. 721 [References are to Pages.] MASTER AND SERYAKF — continued. notice to or knowledge of servant 340 343 relation of, characteristics 323-3"25 contrasted with other relations 323-325 principal and agent 393 employer and contractor 323, 337-339 two supposable masters 323 324 single act of service 394 partnership 324 subservants 394 personal, and not assignable 395 must exist before service performed 325 respondeat superior, doctrine of 337-343 not applicable to employer and contractor 337-339 except where act illegal 337 or master controls act 337 or he is under an absolute duty 338, 339 nor to involuntary hiring 339 acts within scope of employment 339-342 act done in performance of master's contract 336 master must owe duty to person injured 342 not applicable to public officers 342 not applicable to charitable institution 343 not applicable to the relation of bailor or bailee 342 where servant uses the property of two or more 323 (See Service.) rights of master to sue for loss of service 343-345 where injury arises from breach of contract 343, 345 seduction 344 enticement 344 rights of servant against third persons 345 slavery part of, law of 313,314 (See Slavery.) scope of employment, defined 339-342 seduction of servant, master's right to sue for 344 skill impliedly warranted by servant 326 subservant, who is 324 MAXBIS, how differ from rules of law 16 " he who seeks equity must do equity " 194 " no trust shall fail for want of a trustee " 219 " he who clings to the letter adheres to the bark " 33 " the spirit of the law is the life of the law " 33 '^exp7'essio unius exclusio alterius" 37 ^^ubijus, ibi remedium" 8 "ut res magis valeat qiiam pereat^^ 35 •• he is the father who is shown to be such by the marriage " . . 233, 257 ^* volenti no7i Jit injuria" 248,335 "every one must so use his own as not to injure another's" . . 338, 339 " the safety of the people is the supreme law " 431,432 **■ quod non capit Christus Jiscus " 476 46 722 INDEX. [References are to Pages.] MENTAL UNSOUNDNESS, as affecting marriage 1*3 (See Marriage ; Lunatics.) MENTAL SUFFERING, not an element in damages 253 MILITARY LAW, ^ how related to civil law IL, 14 MILITARY TENURE, abolished • 270 MINOR. (See Infants.) MISCEGENATION, prohibited by State laws 149 MITIGATING CIRCUMSTANCES, as defences in actions for libel or slander 92, 93 (See Libel ; Slander.) MONOPOLIES, patent rights excepted from statute against 505-507 MORTGAGE, trade-mark, mortgagees' rights to 548 MORTMAIN ACTS, in England and United States 370, 634 MUNICIPAL CORPORATIONS, liability for acts of servants when under legal duty 338, 367 defined 351 charter of not a contract 855, 398, 399 ordinances of 365 in restraint or regulation of trade 365, 366 when strictly construed 366 legislation not administration 366 creation of monopolies by 366 not liable for negligence of its officers 866, 367 dissolution of by legislature 398 exercise of right of eminent domain by 427, 437 membership of 362 MUTUAL WILLS, what are 597 distinguished from joint wills 597 NATURALIZATION, power of vested in Congress 126 power of, conferred on State Courts, procedure 126, 127 requirements applicable to 127 declaration of intention 127 admission to citizenship, regulations, etc 127 of husband includes wife and minor children 128 by marriage of alien woman to citizen 128 collective, by general statute 128 death of declarants before 127 cannot be made retroactive 128 INDEX. 723 fReferences are to Pages.] NECESSARIES, for wife's support, what are 200-202 liability of husband for wife's 200-205 for support of infant, what are 287-289 presumption as to . . 287 288 functions of judge and jury in determining 287, 288 includes support of wife and children 288 (See Infants.) NEGLIGENCE, contributory, in actions for injuries causing death .... 252, 253 of master toward servant in selection of machinery and servants 328-335 of servant when that of master 336-342 contributory, of servant preventing recovery against master . 330-334 NEW CODE AND NOVELS. (See Civil or Ro.man Law ) NEW YORK, statutes do not take effect until twenty days after passage .... 7 statute and common law of England and the Colony of New York prior to April 19, 1775, still law in, subject to change ... 10, 21 statute modifying the common law- rule against inheritance by aliens 134 statutes as to second marriage where first spouse is absent and un- heard of for five years 148 law of divorce in 162, 173, 176, 178 judicial separation of husband and wife under the laws of . 187, 188 Married Women's Acts .... 198, 199, 207, 209, 211-215, 221-223 wills by married women in . . 224, 225 Civil Damage Act 226-229 admissibility of husband's or wife's testimony for or against each other, under the laws of 232 statute for the maintenance of poor relatives 234 laws of, respecting devises to corporations 372-375 laws of, respecting dissolution of corporations 402, 403 outline of statutes of, as to creation of corporations .... 413, 414 remedies in. against directors of corporations 396, 413 power of religious corporations to alienate land in 376 remedies against corporation for abuse of powers in 390 proceedings to condemn property in 427 law of, respecting taking property by public necessity 430 law of, respecting powers as to real estate 464 statutes of. relating to wrecks 478 assignment for creditors under the laws of 563, 564 laws of, as to the making of wills 58.5-599 statutes of, concerning adoption 266, 267 statutes of, modifying the disabilities of illegitimacy 265 appointment of guardians under the laws of ..... . 273, 274 apprenticeship under the poor laws of 322 NON RESIDENTS, discriminations against 128, 129 right of to sue in courts 129 NOTICE, to servant, when notice to master 343, 452 to owner of animals of vicious propensities 452 rr24 INDEX. [References are to Pages.] NUISANCE, public and private defined invention, abandonment of ^J^ use of invention by others in United States 510 utility of invention \\ \\ \ '.535,536 vacating _ proceedings by United States '^J^^ by individual ^'^^ scire facias at common law 535 PEACE, King's, of State and United States -i^^ right of wife to compel husband to give bonds to keep 229 PERPETUITY, defined 466 charitable gifts not subject to the prohibition against . 466, 467, 633-636 PERSON, natural or artificial " artificial may be corporation, State, foreign prince, natural person having artificial character 2, 350 (See Corporations.) as possessing rights and having standing in court 2, 4 as being bound to submit to exercise of rights by others 3 right may not be enforceable against all artificial persons, as State or United States 3 (See State; Sovereign; Petition of Right.) not synonymous with individual 4 one civilly dead not a 4 private or public 4 rights of private, governed by private law 4 (See Law.) rights of public, governed by public law 5 (See Law.) one entitled to present claim in court 45 not to be deprived of life, liberty, or property without due process of law 72, 73 nor denied equal protection of the laws 73 when Indian a 312 corporation when a 330- 351, 404 PERSONAL CONTRACT OR RELATION, apprenticeship, a 316, 317 master and servant 325 agreement between author and publisher 501, 502 I INDEX. 729 [References are to Pages.] PERSONAL LIBERTY, constitutional provisions in furtherance of 53-77, 94 remedies for violation of 94 action for false imprisonment and habeas corpus 94, 95 (See Habeas Corpus; Extradition.) PERSONAL PROPERTY, abandonment of, right of 441 absolute or qualified ownership in 449-456 wild animals 45O bodies of the dead 450-453 bailments 455 accession as a means of acquiring title 481-486 young of domestic animals 481 acquisition, methods of 468 act of the law, title by 555 assignment for the benefit of creditors as a means of transferring the title of a failing debtor to 562-565 bankruptcy and insolvency proceedings as a means of transferring title to 567-581 proceedings under former U. S. bankrupt act 568-577 insolvency under State statutes 577-581 capture, title by 469-472 booty 469-471 prize 471 composition deeds, transfer of title of , by 565, 566 conditional sale of 424 confusion, as means of acquiring title to 486,487 conversion in equity of 420 destruction of, in case of necessity 559 distinctions peculiar to 439-446 (See Ownp:rship.) distinctions between, and real property 419,420 eminent domain, right to take, under 559 equitable or legal ownership of 456 escheat, title to, by 557, 558 executors and administrators, administration of decedent's estate by 643-668 failing debtor, title from 562-581 finding, title by ; on laud, treasure trove ; at sea, derelicts . . 472-480 forfeiture, title to, by 555-557 future estates in 460-467 remainders 461 executory devises 461 powers 462 incorporeal, title to 488-554 infancy, ratification of sales of, made during 291 intestacy, succession in case of 443-446, 638-643 joint tenancy in 458 judgment, title by 560-562 lease for years 420 legacies 608-638 literary property, title to at common law 488-494 730 INDEX. [References are to Pages.] PERSONAL TROFERTY - continued. copyright 4y4-&UD occupaucy, title by 480, 481 partition of ao-^/I^q qualifications of ownership in !qq~I4; sale, exchange, or pledge of , right of 439-441 right of sale of, as affected by police power 440 what not subject to sale 441 separate ownership in 4o8 succession title by 581-643 by will 581-608 in case of intestacy 638-643 suspension of the ownership of i^4-;J^7 taxation as a mode of acquiring title to 558, .j59 tenancy in common in 459 trusts in 456, 457 will, title by 441-443,581-608 origin of power to make will of 582, 583 married women could not at common law 585 solemnities of execution of will did not originally apply to will of land 586 probate of will of 599-602 will of, speaks from death and not date of execution .... 606 PERSONAL SECURITY, right to, includes what 77 how violated and vindicated 77-94 (See Assault and Battery; Duress; Injuries to Health; Libel and Slander.) PETITION, right to assemble, and 57 PETITION OF RIGHTS rights guaranteed by 47 as a common-law method of procedure of enforcing private rights against sovereign 3, 380 PIN MONEY TRUST, for married women 269 PLAYS, property in, before publication 488, 490, 495 (Literary Property.) protected by copyright 495-497 PLEADING, plaintiff must plead in action on statute, defendant not protected by exception 35 defendant must plead compliance with proviso in statute .... 35 POLICE POWER, of States, what generally includes 75 invalid exercise of, under Fourteenth Amendment 75 interference with liberty of contract 75 interference with pursuing one's business 75 interference with payment of wages by employer .... 75, 76 regulation of railroads under 75, 76 INDEX. 731 [References are to Pages.] POLICE FOWER — continued. regulation or destruction of private property under 431-438 relation to constitutional provisions 432 when an invasion of right of property 432 when not due process of law 432 instances of the valid exercise of 433-437 invalid 437, 433 (See Eminent Domain ; Public Necessity.) right to sell personal property affected by 440 POLYGAMY, not tolerated even though not prohibited by statute 159 what is a polygamous marriage 148 (See Marriage.) POOR LAWS, support of parent or child under 233, 234, 25(5, 262 apprenticeship under 316, 318, 322 POWER, of married woman to dispose of property 224 execution of by will 224 of attorney, defined 462 POWERS, as a means of disposing of personal property 462, 463 New York law of as to real estate 463, 464 common law of 464 PREROGATIVE WRITS, defined 389 PRESCRIPTION", creation of corporations by 354, 371 acquisition of land by 369 corporation by 371 PRESENTMENT and indictment defined 46, 61 applicable where constitutional provision applies to non-infamous offences 46, 61 PREVENTION OF CRUELTY TO ANIMALS ACT 458 PRIMOGENITURE, defined 444-445 PRIVILEGED COMMUNICATIONS, in libel and slander 87-90 (See Libel; Slander.) PRIVILEGES AND IMMUNITIES, of citizens under Art. IV. of Constitution 128 of citizens under Fourteenth Amendment . 130 (See Citizens.) PRIVITY, in relation to disaffirmance of infants' contracts 295 PRIZE, defined 471 as a method of acquiring title to personal property 471 forfeiture as applied to admiralty law in cases of 557 (See Forfeiture.) 709 INDEX. [References are to Pages.] PROBATE OF WILL, ^ ^^^ origin of „^., what court has jurisdiction over ;••■••. necessity of there being personal property to give the court juris- ,. ,. 600 diction will disposing solely of foreign personal property cannot be pro- ^^^ bated jurisdiction of a Court of Chancery over buu citation of parties interested to attend 6U0 evidence to show want of testamentary capacity, due execution, undue influence, may be introduced 600, 601 subscribing witnesses may give their opinion of testator's mental capacity ^^^ probate court has no jury at common law 601 testamentary court has no power to determine the validity of a will of land at common law 601 « common form " and " solemn form " of, under early law . . . 602 substitute for, under New York statutes 602 allegations to contest, in New York, must be filed within one year . 602 PROHIBITORY LIQUOR LAWS, when exercise of police power by the State 432, 433, 440 PROPERTY, origin of, ownership of * ' ' '^^^''^^^ held at first in common by families and village communities . . . 416 undivided ownership 416 separate ownership, beginning of 416,417 meaning of, in law 418 movable and immovable 418,419 distinction between real and personal 419, 420 conversion in equity of 420 ownership, things not the subject of private 421,422 wild animals, running water, etc 421,422 qualifications of, theft, taxation, eminent domain, public neces- sity, police power 423-438 what is, under law of eminent domain 427, 428 invasion of rights of, under police power 432 deprivation of, without due process of law 432, 440 literary title to, at common law 488-494 by statute 494-505 in trade-marks 542 PROSPECTUS, liability of directors or promoters for false statements in or conceal- ments as to 392-394 ^ liability of corporation for acts of directors in issuing untrue . . . 394 ';\, PUBLIC, interests, statute affecting, how construed 36, 37 PUBLIC MEETINGS, f right to hold at common law 57 PUBLIC NECESSITY, taking of property by 430, 431 INDEX. 733 [References are to Pages.] PUBLIC USE, what is, undei" law of eminent domain 431 as affecting patentability 510 533 PUBLICATION, of a libel 80, 81 (See Libel.) when amounts to dedication in law of copyright .... 489 490 494 (SeeLiBKL; Slander.) PUNISHMENT, cruel and unusual, what is under Eighth Amendment .... 69, 70 cumulative punishments for distinct offences not 70 different punishment for different localities not 70 forfeiture of citizenship not 70 stripes as punishment not necessarily 70 death by electricity not 70 provision in amendment as to cruel and unusual, binds Congress . 69 PURCHASE, meaning in law of real estate 132 QUANTUM MERUIT, right of servant to recover from master upon 326, 328 QUO WARRANTO, as a remedy for removal of officers of a corporation 362, 364 proceedings by, to forfeit charter of corporation 389, 400 information in the nature of, to remove officers or forfeit charter of corporation 3(32, 389, 400 RAILROAD COMPANIES, liability of, for negligence of servants of sleeping car companies . 336 RATIFICATION, of ultra vires acts of directors of corporation by stockholders . . 339, 396 (See also Contracts; Infants.) REAL ESTATE, right of husband in wife's 191, 192, 196, 197 conveyance of by married woman 207-210 right of inheritance of depends on law of place where situated . . 259 right to inheritance of when child legitimated under statutes of parent's domicile 259 of infants, sale of by statute 277-280 of ward, control of guardian over 277 capacity to devise, depends on law of place where situated . . . 285 infant's, ratification of conveyances and purchases by ... . 290, 291 liability of owner of, in making improvements, blasting, etc. . . . 338 capacity of corporations to acquire 369-371 by grant, etc., at common law 369 by will under statute of wills 371 by will under New York statutes 372-375 capacity of corporations to dispose of 375, 376 equitable conversion of as affecting right of corporation to take , . 373 distinction between, and personal property 419, 420 y34 INDEX. [References are to Pages.] REAL ESTATE — continued. alienation of, at common law 4^^ succession to, at common law, on death of owner 444 future estates in, at common law 460, 461 disposal of. by powers at common law .'oaIa by New York statutes 463, 464 alienation, suspension of power of ...... 464, 467, 633-636 as assets of decedent's estate 6ol-654 distinction between a charge and direction in will as to the mode of paying debts ; "^- residuary devise treated as specific 652, 653 testator may exempt personal property from debts 652 what court has power to take land for testator's debts .... 653, 654 forfeiture of 555 (See Forfeiture.) escheat of ^^"^ (See Escheat.) taxation as a mode of obtaining title to 558,559 (See Taxation.) eminent domain, taking of, by 559, 427-430 (See Eminent Domain.) ■ wills of, testamentary court has no power to determine the valid- ity of . - 601 (See Probate.) RECRIMINATION, as a defence to action for divorce or separation 167, 189 (See Divorce.) RELATION, doctrine of, as applied to inquisition in lunacy 308 as applied to forfeiture 556, 557 RELIGION, establishment of, or prohibiting free exercise of, prohibited to Con- gress and . . 55, 117 establishment of, not prohibited to States by Constitution . . 55, 56 State constitutions respectinsc . 56 constitutional clause respecting cannot be invoked by territories in defence of immoral acts 56, 117 provisions New Hampshire Constitution concerning 56 training of child in 245, 246 RELIGIOUS CORPORATIONS OR SOCIETIES, devises in trust to 373 power to dispose of land 10, 376 succession of membership in 360-362 mortmain acts in England and the United States 370, 634 REMEDIES, as connected with rights 2 commensurate with rights 8 no right without 8 in equity . , 8 in courts of common law 8 (See Damages.) INDEX. 735 [References are to Pages.] REMEDIES — continued. choice of, when statute gives remedy for common-law right ... 37 statutory, followed where new right created 37 compensatory, preventive, and punitive 77 for infringement of trade-mark \ 559 of patent '.'.*.'.'. 537-540 of copyright 504^ 5^5 REPORTS, as depositories of rules of law 15-''7 distinction between record and 15 definition of 15 16 merit of, may determine value of decision ' 18 merit of older and later, value of syllabus 18, 19 use of contemporaneous English, before American Revolution . . ' 25 early English, Year Books 95 English law 25 26 how prepared in United States 26 value of treatises, digests, and abridgments in connection with . . 26 rules for determining value of reported case 17-24 (See Decision.) REPUTATION, injuries to (see Libel; Slander). as evidence of marriage 15g RESIDUARY DEVISE, what is a residuary bequest 611 treated as specific when 652 RESIDUARY LEGACIES, what are ^\i RETIIOSPECTIVE LAW, defined and compared with ex post facto 54 REVOCATION, of wills 592-597 RIGHTS, corresponding duties 12 imply duties when 1 45 includes power of controlling actions of others or law 2 mode of enforcement called " sanction " 2 (See Law.) general name for enforcing, " remedies," or " procedure "... 2 constitute substantive law and imply 2 person in whom right inheres 2 (See Person.) persons bound to submit to exercise of 3 (See Persons.) subject over which claimed 3 (See Law.) not presented to courts abstractly 4 appear in connection with acts done by claimant or those who dis- pute the right 4 existence determined through medium of action by a court ... 4 " no right without a remedy " 8 (See Remedies.) 736 '''''^^' [References are to Pages.] niGRTS— continued. ,. .^ , , , 8 45 violation injurious to individual a tort <=. "^^ violation of injurious to public a crime ^_^ absolute and relative defined ' .' ' ' 'J ,-'-- absolute, personal security, personal liberty and private property 4o-. . (See these various titles.) secured and established by 3/a' !^-o ... , 5o0-oo2 infringement g.^ damages for ,.,..„ • Til nn ^ injunction to restrain '^^^^ ^;^- registration of . • " .." under the English Act ^•^-^ o^^ la United States ^^^^ '.'^^ origin of the law of ^|^ defined _ " relation of " good-will " to '^y- aliens, as well as citizens, protected in the use of 54:i no violation of, to use for a wholly distinct purpose _ 543 United States Congress has no power to pass general laws, as to 544, 553 passes to representatives of appropriator at his death 548 mortgagee's rights " ' ' ' special questions arising on the dissolution of partnership .... 54& remedies for infringement 550 rules governing the right to an injunction ool jurisdiction of United States courts 544, 5o3 criminal legislation for the protection of ' ^^* rules governing the right to an injunction to restrain infringement q£ . 551, 552 plaintiff must seek his remedy " with clean hands " .... 551 must have been imitated 551 relief may be refused for delay 55"_ color of, cannot be taken into account 552 may extend to third persons, such as carrier of goods having forged brands ^5- TRADE SECRETS, servant may not disclose 3-7 TREASURE TROVE, ownership of . 4qq VISITATION OF CORPORATIONS 3b4-oa9 (See Charitable Corporatioxs.) VISITOR OF CORPORATIONS, ^^_^^^ defined (See Charitable Corporations.) 328 247 WAGES, suit for by servant, when (See Master and Servant.) of minor child, right of father to (See Parent and Child.) WAR, effect of, on contracts between citizens of belligerent countries 138, 139 (See Alien.) ownership of property captured in 409-472 WARD OF COURT 244, 280, 281 (See Guardian and Ward.) procedure to make infant 280, 281 effect of becoming 280, 281 marriage of, power of equity to compel settlement 297 WASTE, by husband as tenant by the curtesy 192 WILL, acknowledgment of signature to, by testator 588, 589 after born children, partial revocation under statute providing for . 595 age, want of, when incapacitates from making 583 incapacity of infant to make, of real estate 297 alterations and erasures in, presumed after execution 593 attestation clause to ;'91 presumptive evidence of acts recited 591 cancelling, obliterating, or destroying revocation of, by . . . 592, 593 capacity to make 583-585 want of age 583 mental unsoundness 584 undue influence 584. 585 coverture 223-225. 585 charity, devise or bequest to, when testator leaves wife or children . 238 codicil to, what is 597, 598 INDEX. 747 [References are to Pages.] WILL — continued. construction, operation, and effect of 603-608 of wills in foreign language 605 testator's intent presumed to be found in prior legal decisions interpreting the words used 605 same in law and equity 605 technical words presumed to be used in their legal sense . . . 605 wills of personal property speak from testator's death, not from execution 606 all parts construed together 606 words are to be taken in their ordinary and grammatical sense 606 not invalid, if words are plain, because of inconvenience or ab- surdity 606 extrinsic evidence admissible to remove an ambiguity . . . 606 not admissible to remove an uncertainty, as distinguished from an ambiguity 006, 607 error in description does not necessarily vitiate a legacy . . . 607 •words and clauses may be transposed, supplied, or rejected, when warranted by context or general scheme 607 circumstances under which made will be regarded ... 608 testator will be presumed to have calculated on the effect, and to have intended to dispose of his whole estate 608 c^/)rei', or rule of approximation 608 proceedings to obtain 603, 604 jurisdiction of Surrogate in New York over 604 c?/ /»e.s doctrine of 31,608,634,635 extraneous paper, reference to in, rules governing 588 must be in existence at the time 588 reference to, must leave no doubt as to identity 588 a question of construction whether reference sufficiently incor- porates 588 reference may be to a foreign will or other instrument . . . 588 guardians, appointment of, in 272-274 holographic, under Roman law 586 n. joint, as distinguished from mutual 597 law of place or domicile, solemnities of, depending on, distinction between real estate and personal property 587 legacies in (see Legacies). lunatic, capacity of, to make, when inquisition suspended .... 307 capacity of, restored to reason, though inquisition not supei'- seded, to make 308 married women's power to make 223-225, 585 mental unsoundness, when incapacitates from making 584 mutual, what are 597 as distinguished from joint 597 nature and requisites of 585-591 must be subscribed 587-589 acknowledgment of signature 588, 589 must be declared by testator to be his will 589 signature of witnesses 589-591 attestation clause 591 non-revocable 596, 597 nuncupative or oral 586 748 INDEX. [References are to Pages.] WILL — continued. origin of power to dispose of property by ... . 441-443, 582, 583 probate 599-602 (See Probate.) real estate, wills of . 224 incapacity of infant to make 297 testamentary court has no power to determine the validity of . 601 devises of, to corporations 371-375 revival and republication of 597-599 in New York revocation of second, does not revive first, unless intended 598, 599 revocation of 592-597 revocable wills 592 express revocation 592-594 revoking clause in later will 592 cancelling, obliterating, or destroying 592, 593 intent as an element of 593 "dependent relative " 594 implied 594-596 inconsistent later will 594 subsequent marriage 595 partial, under statute providing for after born children . . . 595 statutory provisions working 595, 596 by testator changing his relation to property bequeathed . . 596 non-revocable wills 596, 597 statute of wills 371 subscription of, by testator 587-589 subsequent marriage, when revoked by 595 title by 582 unborn children, rights of, under 300 undue influence in inducing the making of 584, 585 witnesses to, signatures of 589-591 may testify as to their opinion of testator's mental capacity 600, 601 WITNESSES, right of accused to be confronted by 61 compulsory process for obtaining, guaranteed to accused ... 61, 02 accused not compelled to be a, against himself 62 husband and wife as, for and against each other 230, 232 husband and wife as, concerning non-access 261 to will may give their opinion of testator's capacity 600, 601 WRECKS, ownership of 477 557 AVRIT, de Jiomini replegiando 58,116 (See Habeas Corpus.) Tie exeat hq %]mm^ "^/^^^Ai % -^^HIBRARYO^ -5^iLIBRARY<^ '!!^ijnjnw-\.JC\^ ^ ^urLALIfOft-^ UNIVERSITY OF CALIFORNIA LIBRARY Loa Angeles This book is DUE on the last date stamped below. SEP 1 3 1593 .■^ r\ \RY k V3J0^ x\m^^ 315 ^f iAi ^lOSANCfltf^ -V o 2=: It ^-.^^ y UC SOUTHERM REGIONAL LIBRARY FACILITY AA 000 761 627 9 INiiJVV^ DV^^ lilJiWi^Ul"- Vn. ...ATIlPr^T,'^. , ■^\^EW!IVEI?S-/A .vvlOS-AVCFlF.r>. <^^l■l!BRARY(9 • ''iim'rPT/'>, -'n^'vnrirr, ^.;^F-rAi!Fnr. k j# •'>