« AnteriorContinuar »
done to cargo by rats, but he was excused it
an assurer include rats; perils of the sea not not responsible. It will be seen from this assured against by a ship-owner do not include sketch, that there is no dominating authority rats. If a peril of the sea must be, as the on either side of the question, and the House Court consider, indigenous, why are pirates of Lords may, in due season, decide the great and collisions, perils of the sea? The law of rat case either way without subjecting itself England sadly wants a master-hand to crush to any serious charge of rendering an absurd these refinements." Besides having figured
decision. We have only two remarks to in song, and story, as in the legends of Whit- make on the subject. One is that the rats tington's Cat, and the “Pied piper of Hame- are permitted to cut too large a figure in the lin,” rats have a distinct and well marked case, that the damage was done by contact judicial history. It was settled at an early with salt water which is emphatically a dandate by the continental maritine law that, the ger of the sea and within the exception in the common carrier by sea was liable for damage bill of lading, and the only question in the
case is one of fact, whether the master of the he had been prudent enough to take a cat on ship was guilty of negligence in permitting board, (as a portion of the crew or as a dead- the presence of rats in the ship at all. If he head passenger) to keep the rats in order and used all available and appropriate means to within proper bounds.' In England as ap
exclude or destroy them, fumigation, cats, pears from the case under consideration, the “Rough on Rats” etc., the carrier is not relaw concerning rats is quite unsettled, and sponsible; if he did not, the carrier is rehas always been so. In 1815, a ship was de- sponsible. The other is, that we do not aptained in the West Indies and the rats ate preciate the distinction made by the Court of holes in her bottom to such an extent that the Appeal between the liability of the insurer cargo had to be sold, as the ship could not and the exemption of the carrier. If a loss proceed on her voyage. Upon an action is chargeable to an underwriter because it reagainst the underwriters,? Lord Ellenborough
sulted from a peril of the sea which he inheld that, the damage by the rats was not a
sured against, such a loss cannot be charged "peril of the seas” within the meaning of the
against a carrier who in his bill of lading expolicy of insurance. In a later case in 1852,3 pressly excepts liability for “perils of the the action was brought for damage done by
sea.” rats to a quantity of cheese on voyage from Genoa to London. The court gave the defendant carrier the benefit of the usual excep- COMMERCIAL LAW-NEGOTIABLE PAPERtion of the dangers of the seas,” which CONSIDERATION— IGNORANTIA JURIS.--The Suhowever were not in the bill of lading, and
preme Court of Vermont recently decided a then decided against him, because damages by 6 of some interest, on the subject of the direct action of the rats were not among negotiable paper, the consideration thereof, those dangers. It was further held, that the
and ignorance of the law connected. theredefendant could not be excused because he
with. A note, payable in bank, was taken had two cats on board; the court declining up before maturity, by the principal, who to follow the continental authorities 4 which paid the bank with the money of the plaintiff, hold that cats on board a ship, even if they under an agreement with him that he should fail to secure the cargo from rals, will at any hold the note as owner. The bank, however, rate protect the carrier, so far as rats are marked the note "paid," and the plaintiff concerned, against the consignee.
induced the surety to sign a new note. The In Pennsylvania,in 1809, the court held that surety did not know that the bank note had the destruction of goods at sea by rats, is a
been marked “paid” at the bank, until after "peril of the seas” for which the carrier is he had signed the new note. After the ma
turity of the new note, suit was brought upon ? Roccus de Navibus, n. 58; Emengon I. 375, 376:
it against the surety, who resisted on the Story on Bailments $ 513.
ground that the old note had been paid be2 Hunter v. Potts, 4 Camp. 203. 3 Lavaroni v. Drury, 22 L. J. Exch. 2.
5 Carrigues v. Coxe, 1 Binne. 592. · Roccus de Navibus, etc. Supra.
6 Churchill v. Bradley, 6 East R. 314. July 19, 1886.
money from the plaintiff to buy the note, he converted the money to his own use, for he paid the note, he did not buy it. If, in either event, he had torn up the note as soon as he received it, he would have been equally liable to the plaintiff. In no event, and der no circumstances, could an action at law be sustained against Brown on the note, because it bore on its face evidence that it had been paid. That equity would relieve in such a case is obvious, but we hardly think it could fairly be said that the note was certainly good in the hands of the plaintiff against Brown.
fore he executed the new one, that there was no consideration for the new note, and that the payment of the bank note by the principal discharged him, the mere surety. The court, however, decided that the surrender of the bank note, by the plaintiff to the surety defendant, was a good consideration for the new note, and that if the defendant in signing the new note, acted in ignorance or under a mistake, it was ignorance or mistake of law, which could not relieve him.
The reasoning of the court in this case is not altogether satisfactory. The strictissimi juris rule, as to the liability of sureties, is well established, and its application to the case under consideration is obvious. It is true that, as to the bank, he was a principal debtor, and his obligation was to pay the note at its maturity, to the bank or its assigns. He was principal, however, as to nobody else. The plaintiff in this action was a mere volunteer, he contracted only with the principal debtor, (Brown,) and furnished him with the money with which he paid the note. When that was done, and the bank, understanding it to be a payment, not a purchase, marked the note "paid,” and passed it to Brown, the release of the defendant was complete, the transaction between Brown and the plaintiff, by which the former obtained from the latter, the money, which was paid to the bank, was res inter alios acta, he was no party to any agreement between them. Whether Brown merely borrowed the money to pay the note from the plaintiff, or, as his agent, pur.chased the note, and by mistake it was marked "paid" instead of being endorsed, was no matter to the surety, as to him, (in a court of law at least,) it was paid. Ilow was it as to Brown? The court says: "Treating the bank note as paid, as to the defendant, and him as discharged therefrom, it certainly remained good in the hands of the plaintiff as against Brown, the principal." Of this we are by no means satisfied. If Brown borrowed the money to pay the note, which is one theory of the case, he became indebted to the plaintiff in the precise sum that he received, as soon as the money was in his hands, and whether he ever paid the note at all, or, having paid it, handed it to the plaintiff or not, he continued to owe him the money he borrowed. If he received the
The.courts says correctly: “Any act that is a detriment to the plaintiff is a sufficient consideration for a promise to pay money. The court adds, we think incorrectly: "It was a detriment to the plaintiff to give up the old note, as it was good against Brown." Could it be a detriment to plaintiff to give up a note on which he could not maintain an action? And could he maintain an action at law on a note which showed upon its face that it had been paid? If therefore the note could not be used as cause of action against either of its makers, had it any such value as would support a promise to pay money? In a case cited by the court,s Parke J., says: There is no doubt that the giving up of any note on which the plaintiff might sue would be a sufficient consideration." A later case however goes much further, a promise to pay money may be supported by the consideration of anything which the plaintiff parted with although he might have kept, and the defendant desired and obtained.' In other words this ruling is in effect that, anything which a party will accept as a consideration for a promise to pay money is a sufficient consideration.
7 Williamson v. Clements, 1 Taunt. 523.
FORMALITIES AS ESSENTIAL TO THE
VALIDITY OF A MARRIAGE.
1. The question stated.
4. Necessity of formalities under the unwritten or primary law.
5. Necessity of formalities under statutes.
6. Result-States in which formalities are necessary.
7. Result-States in which marriage by mere consent is valid.
8. Result-States in which the question is still in doubt.
1. The Question Stated.—The question is, whether competent persons may enter the Married State by a mere agreement to that effect between themselves, or whether they must give notice of their intention to marry or get a license, and must have some authorized person to marry them, and must have the fact of their marriage recorded. In some States formalities are necessary, and in other States the contract alone is essential.
2. The Effect of Inter-State Law.--The necessity of formalities to the validity of any particular marriage depends on the law of the place of the marriage, i. e. the place where the parties contract to be husband and wife; this is a settled principle of International and Inter-State law. Thus, if two persons from some other part of the world desire to marry in Maryland, they must be married as the law of Maryland requires-by a minister of some recognized sect.? If, on the other hand, Marylanders desire to avoid any formalities whatever, they need only go into Pennsylvania, where none
3. General Principle.To determine whether or not, in any given State, formalities are essential to the validity of a marriage, (supposing this question not to have been expressly settled by decision) reference must
be had to the primary law or law existing before the passage of any statutes on the subject, and then to the statutes, and the latter must be harmonized with the former as far as possible. Thus, if the primary law requires no formalities to the validity of a marriage, a statute requiring formalities will not be held to touch the validity of a marriage, unless it expressly refers to such validity or invalidity, as we shall see below.
4. Necessity of Formalities Under the Primary or Unwritten Law.—No formalities are necessary by the law of nature, or by the Canon law, prior to the Council of Trent, or by the civil law, or by the law of Scotland.9 Whether or not any are necessary by the common law of England is disputed. In England, after much hesitation, a divided court settled the affirmative ; 10 and this view has been sustained in Maryland, Massachusetts12 and North Carolina. 13 But the contrary has been held by the Supreme Court of the C'nited States, 14 and in Alabama, 15 California, 16 Georgia,17 Illinois, 18 Iowa,19 Kentucky, 20 Michigan,21 Minnesota, 22 Missis
4 Stewart Mar. & Div. $ 53; Cotterall v. Sweetman, 1 Rob. § 304, 317, 320; Meister v. Moore, 96 U. S. 76, 79; infra n. 31.
5 Campbell v. Gullatt, 43 Ala. 57, 67, 68; infra n.
6 See Richard v. Brehm, 73 Pa. St. 140, 144; Lindo v. Belisario, 1 Hagg. Consist. 216, 4 Eng. Eccl. $ 367; Dumaresly v. Fishly, 3 A. K. Marsh. 368, 370.
7 Dalrymple, 2 Hagg. Consist. 54, 4 Eng. Eccl. 485; Reg. v. Millis, 10 Clark v. F. 534; Hallett v. Collins, 10 How. 174; Patton v. Phila. 1 La. Ann. 98, 101; Prevost, 4 La. Ann. 347, 349.
8 Hallett v. Collins, 10 How. 174, 181.
9 Wright, 15 Sess. Cas. Sa.$ 767; McAdam v.Walker, 1 Dow.148; Dalrymple, 2 Hogg, Consist. 54,4 Eng. Eccl. $ 485.
10 Reg. v. Millis, 10 Clark & F. 534; several hundred pages of discussion; see pp. 624, 626, 655, 703, 707, 763, 784, 815, 832, 856, 858, 8990; Beamish, 9 H. L. Cas. 274; Du Moulin v. Druitt, 13 Ir. C. L. 212; Catherwood v. Cazlon, 13 Mees. & W. 261, 8 Jur. 1076.
11 Dennison, 35 Md. 361.
1 Dicey Dom. pp. 200 et seq. Wharton confl. L. 169; Westlake confl. L. S. 344; Story conti. L. s. 121; Stewart Mar. & Div. $. 108; 1 Bish. Mar. & Div. $. 353; Pearson, 51 Cal. 120, 125; Roth, 104 Ill. 35, 42; Roche v. Washington, 19 Ind. 53, 57; Boyder v. Dively, 58 Mo. 510; State v. Patterson, 2 Ired. 346, 356; Canjolle v. Ferrie, 26 Barb. 177, 187; Phillips v. Gregg, 10 Watts 158, 168; Morgan v. McGhee, 5 Humph. 13, 14; et passim. 2 Dennison, 35 Md. 361; infra n. 35. Redgrave, 38 Md. 93, 98; infra n. 57.
sippi,23 Missouri, 24 New York, 25 Ohio,26 Penn ly says, that any marriage not in accordance sylvania” and Tennessee, 28 and the English with. its terms shall be void. In all the decision has been disapproved in Canada.29 other States the validity of marriages not in Formalities were necessary by the Mexican accordance with statute depends upon con
struction. 5. Necessity of Formalities Under the Pri 6. Result—States in Which Formalities are mary or Unwritten Law.—All the States have Necessary.—In the following States a marstatutes providing for some formalities of riage celebration by some duly authorized marriage, for example, relating to the per officer, civil or religious, is necessary to the mission or license which must be gotten or validity of the marriage: Kentucky, by the notice which must be given before the statute ; 34 Maryland, Massachusetts, * North ceremony, to the persons who may perform Carolina, 37 Tennessee and Texas,59 by pri.' the ceremony, and to the record which must
mary or unwritten law. Likewise in Enbe made of the marriage, but, unless such gland, 40 and probably Canada.“ statutes state that marriages not in conform 7. Result—States in Which Marriage by ity with their terms shall be void, such mar Mere Contract is Valid.—In the following riages are valid, if valid by the primary or States two persons may become husband and unwritten law.31 Thus, the Maryland statutes wife by merely agreeing to be such and provide that no marriage shall be bad without assuming the status of married persons: license and that all marriages must be sol Alabama,42 California, 43 District of Columemnized by a minister of some recognized bia, 44 Georgia, 45 Illinois 46 Iowa, 47 Louisiana, 48 sect, and it is has been held in Maryland that the failure to obtain a license does not 34 Stat. 1881, p. 15, $ 2; Estell v. Rogers, 1 Bish. 62,
64. As to formerly see supra n. 20. affect the validity of a marriage, 32 but that
35 Cases cited supra n. 33. a marriage not solemnized by a minister is 36 Com. v. Munson, 127 Mass. 459; Thompson, 114 invalid,83 the ground of such apparently in
Mass. 566, 567; Milford v. Worcester, 7 Mass. 48,
52. consistent decisions being the (from that
37 Rev. 1873, p. 587; State v. Samuel, 2 Dev. & B. 117, court's point of view) good one, that by the 179; Cooke, Phill. (N. C.) 583, 586. But this does not common law no license was necessary while
seem finally settled; State v. Tachanatah, 64 N. C. 614
616. a religious ceremony was, and that as the
38 Stat. 1871, $$ 24, 39; Grisham v. State, 2 Yerg. 589, statutes said nothing about validity, the rule 592; Bashaw v. State, 1 Yerg. 177. But see Johnson, 1 stood as at common law. A disregard of
Cold. 626, 635; Rice v. State, 6 Humph. 14, 15. Contra
Andrews v. Page 3 Heisk. 653, 667. these statutory provisions, however, renders
39 R. S. 1879, pp. 410, 411; Rice, 31 Tex. 174, 178, 179; the parties liable to certain penalties in the Nichols v. Stewart, 15 Tex. 230, 232; Smith, 1 Tex. 621,
632. But see Lewis V. Ames, 44 Tex. 319, 339, 340; statutes provided.
Sapp v. Newsom, 27 Tex. 537, 540. None of these are Kentucky is the only State, as far as this direct decisions. writer can discover, where the statute express
40 Cases cited supra n. 10.
42 Campbell v. Gullatt, 43 Ala. 57, 69; Robertson v. 23 Hargraves v. Thompson, 31 Miss. 211, 215.
State, 42 Ala. 509, 513; State v. Murphy, 6 Ala. 754, 24 Dyer v. Brannock. 66 Mo. 391, 402.
772. 25 Fenton v. Reed, 4 Johns. 51, 52; Rose v. Clark, 8
43 Civ. Code 1881, $ 55; McCausland, 52 Cal. 566, 577; Paige, 573, 579.
Graham v. Bennett, 2 Cal. 503, 506; Titcomb, Myr. 26 Carmichael v. State, 12 Ohio St. 553, 557, 559. 27 Guardians v. Nathans, 2 Brewst. 149, 152.
Prob. 55, 57. Holmes, 1 Abb. U. S. 525, is not law. 28 Grisham v. State, 2 Serg. 589, 592.
See case, 17 Cal. 598. 29 Breaky, 2 U. C. Q. B. 349, 352.
44 Meister v. Moore, 97 U. S. 76, 78; R. S., D. C., 80 Rice, 31 Tex. 174, 178.
1875, $ 718; U. S. v. McCormick, 1 Cranch C. C. 593; 31 Cotterall v. Sweetman, 1 Rob. Eccl. 304, 312; Meis
U. S. v. Lambert, 2 Cranch C. C. 137; Blackburn y. ter v. Moore, 96 U. S. 76, 78, 79; Campbellv. Gullatt; 43
Crawfords, 3 Wall. 175. The contrary has been held Ala, 57, 69; Port, 70 111.484, 486; Carmichael v. State, 12
in one of the district courts by Judge Cox. Ohio St. 553, 557, 559; cases supra nn. 14-27. But see
45 Code 1873, § 1698; Askew v. Dupree, 30 Ga. 173, Com. v. Munson, 127 Mass. 459; Bashaw v. State, 1
179. Serg. 177; Grisham v. State, 2 Serg. 589, 592.
46 R. S. 1880, pp. 704, 705; Port, 70 Ill. 484, 486; 32 Blackburn v. Crawfords, 3 Wall, 175. See Greaves, Hebblethwaite v. Hepworth, 13 Chic. L. N. 19, 99 Ill. 4 R. 2 P. & D. 423; Ely v. Gammel, 52 Ala. 584; Askew 126. v. Dupree, 30 Ga. 193; Campbell v. Beck, 50 I11. 171; 47 R. S. 1880, $ 2195; Blanchard v. Lambert, 43 Iowa, Stevenson v. Gray, 17 B. Mon. 193; Gatewood v. Tank, 228, 231. And see State v. Williams, 20 Iowa, 18; 3 Bibb, 246; Sabalot v. Populus, 31 La. Ann. 854; State v. Wilson, 22 Iowa, 364; Kilburn v. Mullen, 22 Johnson, 1 Cold. 626.
Iowa, 498; White v. State, 4 Iowa, 449. 39 Dennison, 35 Md. 361; Classen, 57 Md. 510, 512.
48 Civ. Code, 1876, Acts 86-98; Holmes,
Michigan,49 Minnesota, 60 Mississippi,5 Mis Indiana,67 Kansas, 68 Maine,69 Nebraska, 70 souri, 52 New Hampshire, 63 New Jersey, 64 New Nevada," Oregon, Utah, 73 Vermont, 14 VirYork, Ohio, Pennsylvania, 57 Rhode Island, 68 ginia75 and West Virginia.76 In these States South Carolina 9 and Wisconsin. 60
the law is in such a condition that should the 8. Result-States in Which this Question is question arise directly it might be decided Undecided.-In the following States it has either way; ” but that on principle it should not been decided whether a marriage by
be decided in favor of mere contract marmere contract is valid, though the cases cited riages seems clear. 78 A contrary decision will show the inclination of the several courts would probably be reached in Delaware, on this subject: Arkansas, 61 Connecticut,62 Maine, Virginia and West Virginia. Colorado, Dakota, 64 Delaware,65 Florida, 66 Baltimore, Md.
470; Patton v. Phila. 1 La. Ann. 98, 101; Prevost, 4 La. Ann. 347, 349; Cole v. Langtry, 14 La. Ann. 770;
67 R. S. 1881, $ 5330; Trimble, 2 Ind. 76, 78; Fleming, Pbilbrick v. Spangler, 15 La. Ann. 46; Huber, 20 La.
8 Black. 234, 235; Nossaman, 4 Ind. 648, 650. Ann. 97; Blasini, 30 La. Ann. 1388.
68 Comp. L. 1881, pp. 537, 538. Consult State v. 19 Hutchins v. Kimmell, 31 Mich. 126, 130; Meister v.
White, 19 Kan. 445, 449. Moore, 98 U. S. 76, 78; stat. 1882.
69 R. S. 1871, pp. 454, 484; State v. Hodgskins, 19 Me. s0 Stat. 1879, p. 623; State v. Worthingham, 23 Minn.
155, 157; Damon, 6 Me. 148, 149; Cram v. Burnham, 5 528, 533.
Me. 213; Brunswick v. Litchfield, 2 Me. 28. 51 R. C. 1880, $ 1150; Floyd v. Calvert, 53 Miss. 37,
70 Stat. 1881, pp. 341, 342. 44; Dickerson v. Brown, 49 Miss. 357; Rundle v.
71 Stat. 1873, $ 197; Fitzpatrick, 6 Nev. 63, 66. Pegram, 49 Miss. 751; Hargroves v. Thompson, 31
72 G. L. 1872, p. 661. See Holmes, 1 Abb. U. S. 525, Miss. 211, 213.
538, 539, 544. 52 R. S. 1879, $ 3267; Dyer v. Brannock, 66 Mo. 391,
73 Supreme court would probably be followed. See
Meister v. Moore, 96 U. S. 76, 78, 79. 402; Boyer v. Dively, 58 Mo. 510.
74 R. L. 1881, $ 2310; Newbury v. Brunswick, 2 Vt. W G. L., 1878, pp. 428, 429; Londonderry v. Chester,
151, 160, affirms this; Northfield v. Plymouth, 20 Vt. 2 N. H. 268, 279; Clark, 10 N. H. 380, 383; State v.
582, 591, denies it. See also State v. Rood, 12 Vt. 396, Winkley, 14 N. H. 480. But see Dunbarton v. Frank
399; Northfield y. Vershire, 33 Vt. 110. lin, 19 N. H. 257.
15 Code 1873, p. 864; O'Neale, 17 Gratt. 582, 587; 54 Rev. 1877, $ 631; Pearson v. Hovey, 11 N. J. L. 12, Francis, 31 Gratt. 283, 286, 287. See Trimble, 2 Ind. 18; Goldbeck, 18 N. J. Eq. 42, 43; Vreeland, 18 N. J.
76, 78. Eq. 43, 45; Wilson v. Hill, 13 N. J. Eq. 143, 145. Per 76 R. S. 1879, p. 167. haps a doubt.
97 See Peck, 12 R. I. 185, 488. * R. S., 1832, p. 2332; Hynes v. McDermott, 82 N. 78 See Andrews v. Page, 3 Heisk. 653, 667; cases supra Y. 41, 46; Chamberlain, 71 N. Y. 423, 427; Hayes v.
n. 31. People, 25 N. Y. 390; Caujolle v. Ferrie, 23 N. Y. 90; 13 Wall. 565; Van Tuyl, 57 Barb. 235; Bissell, 50 Barb. 325; Davis, 1 Abb. N. C. 140; Taylor, 9 Paige, 611; Rose v. Clark, 8 Paige, 574; Fenton v. Reed, 4 Johns.
ON SOME COMMON ERRORS IN * Carmichael v. State, 12 Ohio St. 553, 557, 559. See
ADVOCACY. R. S. 1880, $$ 63, 88; Duncan, 10 Ohio St. 181, 183.
57 Dig. Laws 1872, p. 1002; Richard v. Brehm, 73 Pa. St. 140, 144; Com. v. Stump, 53 Pa. St. 132, Brice's It is sometimes said that the reply is so Est. 11 Phila. 98; Hartz v. Sealy, 6 Birn. 405; Guar
much more important than the opening of a dians v. Nathans, 2 Brewst. 149; Physick, 2 Brewst. 179.
case, that it is an advantage worth manuv5* Matthewson v. Phoenix, 23 Am. Law, Rep. N. S. ring for. On the other hand, I had not long 401, 403; Peck, 12 R. J. 485, 488; P. S. 1882, p. 416.
commenced my studies for the bar, when I - Fryer, Rich. Eq. Cas. 85, 92. See G. L. 1871, § 440; State v. Whaley, 10 S. C. 500; North v. Valk,
heard a very distinguished Nisi Prius advoDud. Eq. 212.
cate, now a judge, express just the contrary # R. S. 1873, $ 2331; Williams, 46 Wis. 464, 475.
opinion, saying in effect, that, let him have Dig. 1874, $$ 4171, 4178; Scoggins v. State, 32 Ark. 205, 212.
the opening, he cared little who had the *G. L. 1875, p. 1185; Budington v. Munson, 33 reply, and he was undoubtedly right. GenConn. 481, 487; Hammick v. Bronson, 5 Day, 290, 293; Roberts v. State, 2 Root, 381, 382; Goshen v. Stoning.
erally speaking, a case well opened is half ton, 4 Conn. 209, 218; State v. Boswell, 6 Conn. 446,
Won. It is the opening speech that gives the 450; Kiffe v. Antram, 4 Conn. 134, 139.
cue to the jury. Throughout the course of WG. L. 1877, p. 611.
the evidence, they follow the lines then given M Holmes, 1 Abb. U. S. 525, which decides contra, but is probably not law, case 17 Cal. 598.
them. The connection of each separate $ Rev. Code, 1874, p. 473; Pettyjohn, 1 Houst. 332, proof with the whole chain is readily made 334.
when that chain has already been carefully * Dig. 1881, p. 751; Burns, 13 Fla. 369, 380; Ponder v. Graham, 4 Fla. 23.
sketched out to them and, what is very im