an assurer include rats; perils of the sea not assured against by a ship-owner do not include rats. If a peril of the sea must be, as the Court consider, indigenous, why are pirates and collisions, perils of the sea? The law of England sadly wants a master-hand to crush these refinements." Besides having figured in song, and story, as in the legends of Whittington's Cat, and the "Pied piper of Hamelin," rats have a distinct and well marked judicial history. It was settled at an early date by the continental maritine law that, the common carrier by sea was liable for damage done to cargo by rats, but he was excused if he had been prudent enough to take a cat on board, (as a portion of the crew or as a deadhead passenger) to keep the rats in order and within proper bounds.1 In England as appears from the case under consideration, the law concerning rats is quite unsettled, and has always been so. In 1815, a ship was detained in the West Indies and the rats ate holes in her bottom to such an extent that the cargo had to be sold, as the ship could not proceed on her voyage. Upon an action against the underwriters,2 Lord Ellenborough held that, the damage by the rats was not a "peril of the seas" within the meaning of the policy of insurance. In a later case in 1852,3 the action was brought for damage done by rats to a quantity of cheese on voyage from Genoa to London. The court gave the defendant carrier the benefit of the usual exception of the dangers of the seas," which however were not in the bill of lading, and then decided against him, because damages by the direct action of the rats were not among those dangers. It was further held, that the defendant could not be excused because he had two cats on board; the court declining to follow the continental authorities which hold that cats on board a ship, even if they fail to secure the cargo from rats, will at any rate protect the carrier, so far as rats are concerned, against the consignee.—

In Pennsylvania, in 1809, the court held that the destruction of goods at sea by rats, is a "peril of the seas" for which the carrier is

not responsible. It will be seen from this sketch, that there is no dominating authority on either side of the question, and the House of Lords may, in due season, decide the great rat case either way without subjecting itself to any serious charge of rendering an absurd decision. We have only two remarks to make on the subject. One is that the rats are permitted to cut too large a figure in the case, that the damage was done by contact with salt water which is emphatically a danger of the sea and within the exception in the bill of lading, and the only question in the case is one of fact, whether the master of the ship was guilty of negligence in permitting the presence of rats in the ship at all. If he used all available and appropriate means to exclude or destroy them, fumigation, cats, "Rough on Rats" etc., the carrier is not responsible; if he did not, the carrier is responsible. The other is, that we do not appreciate the distinction made by the Court of Appeal between the liability of the insurer and the exemption of the carrier. If a loss is chargeable to an underwriter because it resulted from a peril of the sea which he insured against, such a loss cannot be charged against a carrier who in his bill of lading expressly excepts liability for "perils of the

sea."

COMMERCIAL LAW-NEGOTIABLE PAPERCONSIDERATION IGNORANTIA JURIS.-The Supreme Court of Vermont recently decided a case of some interest, on the subject of negotiable paper, the consideration thereof, and ignorance of the law connected therewith. A note, payable in bank, was taken up before maturity, by the principal, who paid the bank with the money of the plaintiff, under an agreement with him that he should hold the note as owner. The bank, however, marked the note "paid," and the plaintiff induced the surety to sign a new note. The surety did not know that the bank note had been marked "paid" at the bank, until after he had signed the new note. After the maturity of the new note, suit was brought upon it against the surety, who resisted on the ground that the old note had been paid be

5 Carrigues v. Coxe, 1 Binne. 592.

6 Churchill v. Bradley, 6 East R. 314. July 19, 1886.

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, purchased 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. it as to Brown? The court says: 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 reIceived, 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

How was "Treating

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 under 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.

The courts says correctly: "Any act that is a detriment to the plaintiff is a sufficient consideration for a promise to pay money.7 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 a 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, 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.

8 Shortredge v. Cheek, 1 Ad. & El. 316. 9 Haegh v. Brooks, 10 Ad. & El. 306.

FORMALITIES AS ESSENTIAL TO THE VALIDITY OF A MARRIAGE.

1. The question stated.

2. The effect of Inter-State law.

3. General principle.

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.2 If, on the other hand, Marylanders desire to avoid any formalities whatever, they need only go into Pennsylvania, where none are required.3

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

1 Dicey Dom. pp. 200 et seq. Wharton confl. L. § 169; Westlake confl. L. s. 344; Story confl. 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.

3 Redgrave, 38 Md. 93, 98; infra n. 57.

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.

8

6

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,1 11 Massachusetts 12 and North Carolina. 13 But the contrary has been held by the Supreme Court of the United 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. 31.

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, 768, 784, 815, 832, 856, 858, 890; 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.

12 Com. v. Munson, 127 Mass. 459.

13 State v. Samuel, 2 Dev. & B. 177, 179.

14 Meister v. Moore, 96 U. S. 76, 78; infra n. 44.

15 Campbell v. Gullatt, 43 Ala. 57, 69.

16 Graham v. Bennett, 2 Cal. 503, 506.

17 Askew v. Dupree, 30 Ga. 173, 179.

18 Port, 70 Ill. 484, 486.

19 Blanchard v. Lambert, 43 Iowa, 228, 231.

20 Dumaresly v. Fishly, 3 A. K. Marsh. 368, 370.

21 Hutchins v. Kimmell, 31 Mich. 126, 130.

22 State v. Worthingham, 23 Minn. 528, 533.

5. Necessity of Formalities Under the Primary or Unwritten Law. -All the States have statutes providing for some formalities of marriage, for example, relating to the permission or license which must be gotten or the notice which must be given before the ceremony, to the persons who may perform the ceremony, and to the record which must be made of the marriage, but, unless such statutes state that marriages not in conformity with their terms shall be void, such marriages are valid, if valid by the primary or unwritten law. 31 Thus, the Maryland statutes provide that no marriage shall be had without license and that all marriages must be solemnized by a minister of some recognized sect, and it is has been held in Maryland. that the failure to obtain a license does not affect the validity of a marriage, but that a marriage not solemnized by a minister is invalid, the ground of such apparently inconsistent decisions being the (from that court's point of view) good one, that by the common law no license was necessary while a religious ceremony was, and that as the statutes said nothing about validity, the rule stood as at common law. A disregard of these statutory provisions, however, renders the parties liable to certain penalties in the statutes provided.

33

Kentucky is the only State, as far as this writer can discover, where the statute express

23 Hargraves v. Thompson, 31 Miss. 211, 215.

24 Dyer v. Brannock. 66 Mo. 391, 402.

25 Fenton v. Reed, 4 Johns. 51, 52; Rose v. Clark, 8 Paige, 573, 579.

26 Carmichael v. State, 12 Ohio St. 553, 557, 559.

27 Guardians v. Nathans, 2 Brewst. 149, 152.

28 Grisham v. State, 2 Serg. 589, 592.

29 Breaky, 2 U. C. Q. B. 349, 352.

30 Rice, 31 Tex. 174, 178.

31 Cotterall v. Sweetman, 1 Rob. Eccl. 304, 312; Meister v. Moore, 96 U. S. 76, 78, 79: Campbell v. Gullatt, 43 Ala. 57, 69; Port, 70 111.484, 486; Carmichael v. State, 12 Ohio St. 553, 557, 559; cases supra nn. 14-27. But see Com. v. Munson, 127 Mass. 459; Bashaw v. State, 1 Serg. 177; Grisham v. State, 2 Serg. 589, 592.

32 Blackburn v. Crawfords, 3 Wall. 175. See Greaves, 4 R. 2 P. & D. 423; Ely v. Gammel, 52 Ala. 584; Askew v. Dupree, 30 Ga. 193; Campbell v. Beck, 50 Ill. 171; Stevenson v. Gray, 17 B. Mon. 193; Gatewood v. Tank, 3 Bibb, 246; Sabalot v. Populus, 31 La. Ann. 854; Johnson, 1 Cold. 626.

Dennison, 35 Md. 361; Classen, 57 Md. 510, 512.

ly says, that any marriage not in accordance with its terms shall be void. In all the other States the validity of marriages not in accordance with statute depends upon construction.

6. Result-States in Which Formalities are Necessary. In the following States a marriage celebration by some duly authorized officer, civil or religious, is necessary to the validity of the marriage: Kentucky, by statute; Maryland, Massachusetts, North Carolina, Tennessee and Texas, by primary or unwritten law. Likewise in England,40 and probably Canada."

34

37

35

89

7. Result-States in Which Marriage by Mere Contract is Valid.-In the following States two persons may become husband and wife by merely agreeing to be such and assuming the status of married persons: Alabama,42 California,43 District of Columbia, Georgia, Illinois 46 Iowa, 47 Louisiana, 48

34 Stat. 1881, p. 15, § 2; Estell v. Rogers, 1 Bish. 62, 64. As to formerly see supra n. 20. 35 Cases cited supra n. 33.

36 Com. v. Munson, 127 Mass. 459; Thompson, 114 Mass. 566, 567; Milford v. Worcester, 7 Mass. 48,

52.

37 Rev. 1873, p. 587; State v. Samuel, 2 Dev. & B. 117, 179; Cooke, Phill. (N. C.) 583, 586. But this does not seem finally settled; State v. Tachanatah, 64 N. C. 614 616.

38 Stat. 1871, §§ 24, 39; Grisham v. State, 2 Yerg. 589, 592; Bashaw v. State, 1 Yerg. 177. But see Johnson, 1 Cold. 626, 635; Rice v. State, 6 Humph. 14, 15. Contra Andrews v. Page 3 Heisk. 653, 667.

39 R. S. 1879, pp. 410, 411; Rice, 31 Tex. 174, 178, 179; Nichols v. Stewart, 15 Tex. 230, 232; Smith, 1 Tex. 621, 632. But see Lewis v. Ames, 44 Tex. 319, 339, 340; Sapp v. Newsom, 27 Tex. 537, 540. None of these are direct decisions.

40 Cases cited supra n. 10.

41 See Breaky, 2 U. C. Q. B. 349.

42 Campbell v. Gullatt, 43 Ala. 57, 69; Robertson v. State, 42 Ala. 509, 513; State v. Murphy, 6 Ala. 754, 772.

43 Civ. Code 1881, § 55; McCausland, 52 Cal. 566, 577; Graham v. Bennett, 2 Cal. 503, 506; Titcomb, Myr. Prob. 55, 57. Holmes, 1 Abb. U. S. 525, is not law. See case, 17 Cal. 598.

44 Meister v. Moore, 97 U. S. 76, 78; R. S., D. C., 1875, § 718; U. S. v. McCormick, 1 Cranch C. C. 593; U. S. v. Lambert, 2 Cranch C. C. 137; Blackburn v. Crawfords, 3 Wall. 175. The contrary has been held in one of the district courts by Judge Cox.

45 Code 1873, § 1698; Askew v. Dupree, 30 Ga. 173, 179.

46 R. S. 1880, pp. 704, 705; Port, 70 Ill. 484, 486; Hebblethwaite v. Hepworth, 13 Chic. L. N. 19, 98 Ill.

126.

47 R. S. 1880, § 2195; Blanchard v. Lambert, 43 Iowa, 228, 231. And see State v. Williams, 20 Iowa, 98; State v. Wilson, 22 Iowa, 364; Kilburn v. Mullen, 22 Iowa, 498; White v. State, 4 Iowa, 449.

48 Civ. Code, 1875, Acts 86-98; Holmes, 6 La. 463,

470; Patton v. Phila. 1 La. Ann. 98, 101; Prevost, 4 La. Ann. 347, 349; Cole v. Langtry, 14 La. Ann. 770; Philbrick v. Spangler, 15 La. Ann. 46; Huber, 20 La. Ann. 97; Blasini, 30 La. Ann. 1388.

Hutchins v. Kimmell, 31 Mich. 126, 130; Meister v. Moore, 98 U. S. 76, 78; stat. 1882.

50 Stat. 1879, p. 623; State v. Worthingham, 23 Minn. 528, 533.

1 R. C. 1880, § 1150; Floyd v. Calvert, 53 Miss. 37, 44; Dickerson v. Brown, 49 Miss. 357; Rundle v. Pegram, 49 Miss. 751; Hargroves v. Thompson, 31 Miss. 211, 215.

52 R. S. 1879, § 3267; Dyer v. Brannock, 66 Mo. 391, 402; Boyer v. Dively, 58 Mo. 510.

G. L., 1878, pp. 428, 429; Londonderry v. Chester, 2 N. H. 268, 279; Clark, 10 N. H. 380, 383; State v. Winkley, 14 N. H. 480. But see Dunbarton v. Franklin, 19 N. H. 257.

4 Rev. 1877, § 631; Pearson v. Hovey, 11 N. J. L. 12, 18; Goldbeck, 18 N. J. Eq. 42, 43; Vreeland, 18 N. J. Eq. 43, 45; Wilson v. Hill, 13 N. J. Eq. 143, 145. Perhaps a doubt.

R. S., 1832, p. 2332; Hynes v. McDermott, 82 N. Y. 41, 46; Chamberlain, 71 N. Y. 423, 427; Hayes v. People, 25 N. Y. 390; Caujolle v. Ferrie, 23 N. Y. 90; 13 Wall. 565; Van Tuyl, 57 Barb. 235; Bissell, 55 Barb. 325; Davis, 1 Abb. N. C. 140; Taylor, 9 Paige, 611; Rose v. Clark, 8 Paige, 574; Fenton v. Reed, 4 Johns.

52.

Carmichael v. State, 12 Ohio St. 553, 557, 559. See 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 Est. 11 Phila. 98; Hartz v. Sealy, 6 Birn. 405; Guardians v. Nathans, 2 Brewst. 149; Physick, 2 Brewst. 179.

58 Matthewson v. Phoenix, 23 Am. Law, Rep. N. S. 401, 403; Peck, 12 R. J. 485, 488; P. S. 1882, p. 416.

Fryer, Rich. Eq. Cas. 85, 92. See G. L. 1871, § 440; State v. Whaley, 10 S. C. 500; North v. Valk, Dud. Eq. 212.

60 R. S. 1873, § 2331; Williams, 46 Wis. 464, 475. Dig. 1874, §§ 4171, 4178; Scoggins v. State, 32 Ark. 205, 212.

G. L. 1875, p. 1185; Budington v. Munson, 33 Conn. 481, 487; Hammick v. Bronson, 5 Day, 290, 293; Roberts v. State, 2 Root, 381, 382; Goshen v. Stonington, 4 Conn. 209, 218; State v. Boswell, 6 Conn. 446, 450; Kiffe v. Antram, 4 Conn. 134, 139.

G. L. 1877, p. 611.

"Holmes, 1 Abb. U. S. 525, which decides contra, but is probably not law, case 17 Cal. 598.

Rev. Code, 1874, p. 473; Pettyjohn, 1 Houst. 332, 334.

Dig. 1881, p. 751; Burns, 13 Fla. 369, 380; Ponder v. Graham, 4 Fla. 23.

Nevada," Oregon, Utah,73 Vermont,74 Virginia and West Virginia.76 In these States the law is in such a condition that should the question arise directly it might be decided either way; 77 but that on principle it should be decided in favor of mere contract mar

riages seems clear.78 A contrary decision would probably be reached in Delaware, Maine, Virginia and West Virginia. Baltimore, Md. DAVID STEWART.

67 R. S. 1881, § 5330; Trimble, 2 Ind. 76, 78; Fleming, 8 Black. 234, 235; Nossaman, 4 Ind. 648, 650.

68 Comp. L. 1881, pp. 537, 538. Consult State v. White, 19 Kan. 445, 449.

69 R. S. 1871, pp. 454, 484; State v. Hodgskins, 19 Me. 155, 157; Damon, 6 Me. 148, 149; Cram v. Burnham, 5 Me. 213; Brunswick v. Litchfield, 2 Me. 28. 70 Stat. 1881, pp. 341, 342.

71 Stat. 1873, § 197; Fitzpatrick, 6 Nev. 63, 66.

72 G. L. 1872, p. 661. See Holmes, 1 Abb. U. S. 525, 538, 539, 544.

73 Supreme court would probably be followed. See Meister v. Moore, 96 U. S. 76, 78, 79.

74 R. L. 1881, § 2310; Newbury v. Brunswick, 2 Vt. 151, 160, affirms this; Northfield v. Plymouth, 20 Vt. 582, 591, denies it. See also State v. Rood, 12 Vt. 396, 399; Northfield v. Vershire, 33 Vt. 110.

75 Code 1873, p. 864; O'Neale, 17 Gratt. 582, 587; Francis, 31 Gratt. 283, 286, 287. See Trimble, 2 Ind. 76, 78.

76 R. S. 1879, p. 167.

" See Peck, 12 R. I. 185, 488.

78 See Andrews v. Page, 3 Heisk. 653, 667; cases supra n. 31.

ON SOME COMMON ERRORS IN ADVOCACY.

It is sometimes said that the reply is so much more important than the opening of a case, that it is an advantage worth manœuvring for. On the other hand, I had not long commenced my studies for the bar, when I heard a very distinguished Nisi Prius advocate, now a judge, express just the contrary opinion, saying in effect, that, let him have the opening, he cared little who had the reply, and he was undoubtedly right. Generally speaking, a case well opened is half It is the opening speech that gives the cue to the jury. Throughout the course of the evidence, they follow the lines then given them. The connection of each separate proof with the whole chain is readily made when that chain has already been carefully sketched out to them and, what is very im

won.