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neither found nor shown that the officer did, or omitted to do, any thing by reason of such act of omission of the respondent, or that the plaintiff in the execution was in any way prejudiced thereby." In Vanderhorst v. Bacon, 38 Mich. 669; S. C., 31 Am. Rep. 328, it was held that the right to exemption was not waived by the debtor's failing to claim it and receipting for the goods.

In the late English case of Hatcher v. Ball, the question of restraining the use of a person's name, and the publication of a false advertisement, was decided. The plaintiff was the owner of an hotel at Dawlish called Hatcher's Royal Albert Hotel, and the defendant owned an adjoining hotel called the Royal Hotel. The defendant had married a daughter of Hatcher the father, and had since December, 1877, placed over his door "Hatcher's" Royal Hotel. The defendant had also recently advertised his hotel as the only hotel at Dawlish having an uninterrupted sea view. The plaintiff complained of this advertisement, as his hotel also had a sea view. The plaintiff had advertised his hotel as having a splendid sea view. Pollock, B., said: "Both on principle and on the authority of decided cases, there was no sufficient case here calling for the interference of the court. As to the first part of the motion in reference to the use of the word 'Hatcher,' it was clear that word had been used by the defendant without question since the year 1877, and therefore there was no case either for an interim order, or in fact for an injunction at all. As to the advertisement, he was also of opinion no case had been made out for interference. It was no doubt true that the defendant's advertisement would deceive, and in fact it could scarcely be said that any hotel could have an uninterrupted sea view from all its windows. People should no doubt not exaggerate in their advertisements, but it was a question of degree how far any advertisement constituted an actionable injury. Looking at the question in a reasonable light, would it be said that such an advertisement would constitute an injury, for instance, at Brighton or any of those towns where nearly all the hotels would have a sea view? The only question was, would such an advertisement make any difference where there was perhaps only one other hotel with a sea view? There was here no affirmative

statement that the plaintiff's hotel had no sea view, and therefore the case did not come within the class of cases of Thomas v. Williams and Thorley's, etc., Company v. Massam. It was also clear that defendant did not claim any distinctive name so as to come within another class of cases, and therefore on the whole the motion failed."

In United States v. DeMott, commissioner's court, district of New Jersey, 3 Fed. Rep. 478, it was held that section 3995 of the Revised Statutes, providing that "any person who shall knowingly and willfully obstruct or retard the passage of the mail, or any carriage, horse, driver, or carrier carrying the same, shall, for every such offense, be punisha

ble by a fine of not more than $100," is applicable to a person stopping a train carrying the United States mail, although he has obtained a judgment and writ of possession from a State court against the railroad company in respect to the lands about to be crossed by such train. Patterson, commissioner, said: "Nor could the fact of want of remuneration by the relators to such owner, if proven in the case, enter as an element for consideration here. The United States were no party to any laches by the relators in that respect, nor are they alleged to have been or to be cognizant of or privy to that failure by this company, or any preceding organization. In the absence of notice, or of the

way.

fact being brought to their knowledge, they would be justified in regarding the title of the relators to the land on which their tracks were laid to be as good as that of any other road over which their mails were carried. They found a road constructed and in running order, and recognized and used it for postal service, just as they do an ordinary highTo apply the principle of caveat emptor to them in such cases, and say they were bound to look up the title of every railroad and spur and branch, and ascertain if it was clear of claim and cloud, would seem to impair, to a serious extent, the efficiency and benefit of the service." "My opinion is that no ultra or decisive steps should have been taken by the owner at so early a date. On being advised of the facts the authorities of the United States, in equity, would have been compelled to make compensation, or fall back on the bonds of the company. They would have no fair

claim to use the road, upon notice of the facts shown here, unless by agreement with the owner. But until such notice their right to carry the mail remained the same as before."

Campbell v. James, U. S. Circuit Court, Southern District of New York, 3 Fed. Rep. 513, is a decision important to postmasters. The plaintiff had recovered a judgment of more than $60,000 damages against Postmaster James, of New York city, for unlicensed use of his patented stamp for cancelling postal stamps. The defendant moved for a certificate under section 989 of the Revised Statutes of the United States. That section is as follows: "When a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him, and by him paid into the treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other offcer, or that he acted under the direction of the secretary of the treasury or other proper officer of the government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the treasury." The motion was denied, on the ground that a postmaster is not an "officer of the revenue. The court said: "It is clear that the word 'reve

nue,' in all these forms of expression, means only the revenue from customs. The act does not relate to revenue from any other source. So far as it relates to revenue from any source it relates only to revenue from customs. The words 'officers of the revenue,' in section 12, mean officers of the revenue from customs. The words 'officers of the revenue' in section 989 of the Revised Statutes, which is a mere revision or reprint of section 12 of the act of 1863, can have no different meaning from what it would have had if there had been no revision or reprint. Under said section 12 the words 'other officers of the revenue' would never have been construed to mean a postmaster. Therefore, they cannot be so construed in section 989 of the Revised Statutes. The revision cannot change the meaning of the same words by displacing the enactment from the connection in which Congress originally placed it. This is the view held by the post-office department itself; for in the report of the postmaster-general to the president, of November 8, 1879, reference is made to this suit, and to the decision on it, by the interlocutory decree, adverse to the defendant James, and it is stated that 'there is no provision of Federal law to secure 'certificates of probable cause' to United States officials, other than treasury officials, in cases of adverse judgments for acts done in their official capacity.' This is unquestionably a correct view. For what acts done in their official capacity 'treasury officials' may have certificates granted to them, under the statute, and whether such acts can ever include the act of infringing a patent, are questions not involved in this case.

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CONSTRUCTIVE FRAUD-PHYSICIAN

AND PATIENT.

N Audenreid's Appeal, 89 Penn. St. 114, A. was 70 years old, very wealthy, infirm and confined to the house, but of sound mind and judgment. F. was his physician and confidential friend. A. executed a contract with F., by which, in consideration of one dollar and F.'s services in securing certain stock for A., A. agreed to transfer a certain interest in the stock to F. F. received thereby about $50,000. A. having died, his executors sued to set aside the transaction. Held, that F. was at liberty to show that the transaction was a gift; that a physician is not prohibited from receiving a gift from his patient by reason of the mere relation; and that the burden of proof of fairness is not on the defendant.

So far as the burden of proof is concerned, we are inclined to believe this is opposed to the almost unanimous current of authority. The following are the principal cases of gifts from patient to physician and contracts between them:

Gibson v. Russell, 2 Y. & C. 104. Here a deed of real estate from an aged and infirm person to his intimate friend and medical attendant was set aside for fraud, one of the circumstances in proof being that the deed stated, contrary to the proof, a pecuniary consideration, £1,000. In fact the grantor

furnished that sum to the grantee to support a colorable payment. It also appeared that the patient had been under insane delusions. On these grounds the decision is distinguished in the principal case. This is the only hostile decision there referred to.

In Dent v. Bennett, 4 My. & Cr. 269, Lord Chancellor Cottenham said: "A medical attendant obtains from his patient, eighty-five years of age, an agreement to pay him £25,000 for services completed two years before, the regular charge for which had been previously paid; and this privately, without the intervention of any third person, and carefully concealed until after the death of the patient." "It was argued, upon the authority of the civil law, and some reported cases, that medical attendants were, upon questions of this kind, within that class of persons whose acts, when dealing with their patients, ought to be watched with great jealousy. Undoubtedly they are; but I will not narrow the rule, or run the risk of in any degree fettering the exercise of the beneficial jurisdiction of this court by any enumeration of the description of persons against whom it ought to be most freely exercised. 'The relief,' as Sir S. Romilly says in his celebrated reply in Huguenin v. Baseley (from hearing which I received so much pleasure that the recollection of it has not been diminished by the lapse of more than thirty years) - 'the relief stands upon a general principle, applying to all the variety of relations in which dominion may be exercised by one person over another;' and when I find an agreement, so extravagant in its provisions, secretly obtained by a medical attendant from his patient of a very advanced age, and carefully concealed from his professional advisers and all other persons, and have it proved that the habits, views, and intentions of the testator were wholly inconsistent with those provisions, I cannot but come to the conclusion that the medical attendant did obtain it by some dominion exercised over his patient." The court also held that the agreement was void at law, the money be ing payable at death, as it was an inducement to hasten the patient's death.

Doggett v. Lane, 12 Mo. 215, was a case of a sale by patient to physician, and there was no proof of inadequacy of price. The transaction was sustained.

Billayev. Southee, 9 Hare, 534, was the case of a poor patient, becoming rich, and executing to his physician a note for £325, an amount greatly in excess of his services, and without the rendition of any account. The court restrained the enforcement of the note beyond the amount justly due for services, saying: "No part of the jurisdiction of the court is more useful than that which it exercises in watching and controlling transactions between persons standing in a relation of confidence to each other; and in my opinion this part of the jurisdiction of the court cannot be too freely applied, either as to the persons between whom or the circumstances in which it is applied. The jurisdiction is founded on the principle of correcting abuses of confidence, and I shall have no hesitation in saying it ought to be applied, whatever may be the nature

of the confidence reposed, or the relation of the parties between whom it has subsisted. I take the principle to be one of universal application, and the cases in which the jurisdiction has been exercised -those of trustees and cestui que trust, guardian and ward, attorney and client, surgeon and patient -to be merely instances of the application of the principle." "It is said that he intended to be liberal," "but intention imports knowledge, and liberality imports the absence of influence; and I see no evidence in this case either of knowledge or of the absence of influence; and where a gift is set up between parties standing in a confidential relation, the onus of establishing it by proof rests upon the party who has received the gift."

In Pratt v. Barker, 1 Sim. 1, a case of physician and patient, the evidence showed knowledge and absence of influence, and the transaction was sustained.

In Popham v. Brooke, 5 Russ. 8, a patient, suffering from apoplexy and a diseased organization of the brain, and capable of talking only in monosyllables, and that with difficulty, executed to the surgeon of the ship on which he had been voyaging, and who had attended him, an instrument, giving him an annuity of £100 for his life, in consideration that he would live with him and attend him professionally. The Master of the Rolls remarked: "If it were admitted that Colonel Popham was of capacity to understand, and did perfectly understand, the nature and effect of these instruments, they could not be maintained by the defendant. On the 8th of July, the defendant was informed by Dr. Nevinson that Colonel Popham could not recover, nor survive long; and either on that or on the preceding day, the defendant stated to Mrs. Popham his own opinion that Col. Popham could not survive more than a month or six weeks. When, therefore, these instruments were executed on the 12th of July, the defendant well knew that he was in fact giving little or no consideration for so large a gratuity; whereas Col. Popham must have executed them in the hope of a prolonged life. Under such circumstances it would have been the bounden duty of the defendant to have declined a compensation of that character, even if Col. Popham had pressed it on him, and had been in truth capable of business."

In Ashwell v. Lomi, L. R., 2 P. & D. 477, it was held that although there is no rule of law which forbids a man to bequeath his property to his medical attendant, yet it is not a favorable circumstance for one in such a confidential position, with respect to a patient laboring under a severe disease, to take a large benefit under such patient's will, more particularly if it be executed in secresy, and the whole transaction assumes the character of a clandestine proceeding, and in such a case the onus will lie very heavily upon the party benefited to maintain the validity of the will.

In Allen v. Davis, 4 DeG. & S. 133, an aged gentleman had accepted a draft for some £262 in favor of a dentist, the latter averring that it was in consideration of an oral agreement, no third person be

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ing present, that he was to attend to the acceptor's teeth and supply him with artificial teeth, during life. The acceptor dying before the maturity, held, that the draft must be surrendered. The court said: "In a case of imputed fraud, the plaintiff is entitled to ask of the court, as a judge of fact, whether an inference of fraud-of gross fraudarises from the case as Mr. Davis has himself stated it. And I think it quite impossible to ask any reasonable being to draw any different inference from such materials." Citing Dent v. Bennett.

Cadwallader v.

West, 48 Mo. 483, was the case of a patient, aged, feeble, deaf, and of very weak mind, bestowing all his estate on his attending physician, who lived with him and had controlling influence over him, for an extremely trifling compensation. The transaction was set aside. The court said: "Owing to the relation which the parties sustained toward each other, the deed was presumptively the result of undue influence, and therefore prima facie void for that reason. It has been repeatedly declared by learned chancellors that the mere relation of patient and medical adviser was sufficient to avoid the contracts of the former made with the latter, during the continuance of such relation." Citing Dent v. Bennett. The court then go on to say that this presumption is not repelled by the evidence, the substance of which is given above.

In Crispell v. Dubois, 4 Barb. 393, a will had been drawn by the testatrix's physician and confidential adviser, devising him a considerable amount. The court said he "stood in relation of special confidence to the testatrix, both as her medical attendant and confidential adviser," and that the onus of proof was on him as propounder of the will.

Story says (1 Eq. Jur., § 314): "Similar considerations" (i. e., as to the presumption of unfairness and the burden of proof) "apply to the case of a medical adviser and his patient. For it would be a meager sort of justice to say that the sort of policy which has induced the court to interfere between client and attorney, should be restricted to such cases; since as much mischief might be produced, and as much fraud and dishonesty be practiced, if transactions were permitted to stand which arose between parties in equally confidential relations."

In Hare and Wallace's note to Huguenin v. Baseley, 2 White and Tudor's Lead. Cas. in Eq. 1230, it is said: "A physician is within the circle of confidential relations while attending on his patients, and until the influence arising from this source has ceased to operate."

This question arose in a case at nisi prius in England, in August, 1880, before Mr. Justice Stephen, in Mitchell v. Homfray. This was an action, brought by the executors of the late Mrs. Geldard, to recover a sum of £800, alleged to have been advanced on loan by the old lady to Dr. Homfray, but which he claimed to have received as a gift. The judge, in summing up, said that if one person chose voluntarily to confer a benefit upon another, to give money (or other things) without fraud, or any undue pressure or solicitation, or without intention to defraud creditors, and if he has a perfectly good title, the

property in the money (or goods) is as absolutely transferred as that in goods sold and delivered. Upon this principle a broad and important exception had been grafted by the Court of Chancery. There are certain relations of life in which one person obtains so much influence over another by reason of the relationship which exists between them that the former can hardly avoid being more or less under temptation. The relationship, for instance, between priest and penitent is of so delicate a nature, and so liable to abuse, that any advice given by priest to penitent is regarded with a jealous eye and guarded by strict rules. The same may be said of the relationship existing between client and legal adviser, and between a patient and the medical man who attends him. With regard to this latter relationship, which was the important one in the present case, his lordship said he should follow the line laid down by Lord Justice Turner in the case of Rhodes v. Bate, 35 L. J. Rep. Chanc. 267, and should tell the jury that the law was that if a gift be made by a patient to a medical man during the existence of the relationship, the gift would be set aside, unless at the time when the gift was made, the patient had competent and independent advice with regard to the giving of it.

Counsel for the appellee in the principal case cited Jackson v. Ashton, 11 Pet. 255. The court there said: "We now come to consider the fourth ground taken by the complainants; which is, that from the relation which existed between the defendant and Mrs. Goodwin, she could make no valid contract with him. He was her pastor and agent." "Some years before the mortgage deed was signed, Mrs. Goodwin did belong to the church under the charge of the defendant; but this relation had ceased long before the death of Goodwin; but if this relation existed in fact, it is not charged in the bill. Does the profession of a clergyman subject him to suspicions which do not attach to other men? Is he presumed to be dishonest? It will indeed exhibit a most singular spectacle, if this court should by its decision fix this stain upon the character of a class of men who are generally respected for the purity of their lives, and their active agency in the cause of virtue. They are influential, it is true, but their influence depends upon the faithfulness and zeal with which their sacred duties are performed. Acquainted as we are with the imperfections of our nature, we cannot expect to find any class of men exempt from human infirmities. But why should the ministers of the gospel, who as a class are more exemplary in their lives than any other, be unable to make a contract with those who know them best and love them most? Their influence, by precept and example, does more to reform the actions of men, and restrain their vicious inclinations, than all the institutions of society. And yet we are called upon to denounce this whole class, and hold them incapable of making a contract with those who are under their pastoral charge, and who, like Mrs. Goodwin, are distinguished for their piety." These remarks, it will be seen, are obiter, and the case was of contract, and not of gift.

The case of Greenleaf's Estate, 12 Harris, 232, cited by counsel, and the only authority relied on by the court, has no application. The court simply said: "We cannot agree with the learned judge of the Common Pleas, that the gift (for such undoubtedly it was) to Mr. Sudards is prohibited by law, as against public policy. We know of no rule of law or morals which will prevent clergymen from receiving gifts, large or small, even from their parishioners, which it seems was not the case with Mrs. Greenfield, as she did not belong to the immediate church or congregation of Mr. Sudards. In this country the danger is that clergymen will receive too little rather than too much."

In Norton v. Relly, 2 Eden, 286, a grant of an annuity, obtained by a dissenting minister having a spiritual ascendancy over a woman under a state of religious delusion, was set aside on principles of public policy. The report does not show what the evidence was. Lord Chancellor Henley delivered a very severe and at the same time amusing opinion, in which he makes very different presumptions as to the clergy from those in Jackson v. Ashton.

We are quite inclined to believe, from the foregoing array, that in the case of any artifical confidential relation, like that of physician and patient, the donee must satisfy the court, on a bill brought to set aside the gift, that the donor had competent and | independent advice in conferring the benefit, that he fully understood the nature of the transaction, and that no undue influence was practiced; and that this rule is independent of age, sex, mental infirmity, and other incapacity.

As to the application of the doctrine of constructive fraud as between a minor and a person in loco parentis, see Berkmeyer v. Kellerman, 32 Ohio St. 239; S. C., 30 Am. Rep. 577; husband and wife, Boyd v. De LaMontagnie, 73 N. Y. 498; S. C., 29 Am. Rep. 197; Darlington's Appeal, 86 Penn. St. 512; S. C., 27 Am. Rep. 726; parent and child, Jacox v. Jacox, 40 Mich. 473; S. C., 29 Am. Rep. 547; affianced parties, Pierce v. Pierce, 71 N. Y. 154; S. C., 27 Am. Rep. 22, and note, 26; Gilmore v. Gilmore, 7 Or. 374; guardian and ward, Ferguson v. Lowery, 54 Ala. 510; S. C., 25 Am. Rep. 718, and note, 728; grandfather and grandson, Cowee v. Cornell, 75 N. Y. 91; S. C., 31 Am. Rep. 428; attorney and client, Dickinson v. Bradford, 59 Ala. 581; S. C., 31 Am. Rep. 23.

THE

THE EFFECTS OF MARRIAGE.

BY ISAAC VAN WINKLE.

II.

IE French law does not interfere in matrimonial arrangements respecting property, except when there are no special agreements which the parties may make as they think proper, and not contrary to good morals. They cannot by any agreement change the legal order of succession. They may declare in a general manner that they intend to be married under the régime de la communauté (possession in common, or under the dotal system-le régime dotal). In such cases the respective rights of husband and wife and their heirs are governed by rules under the title of Community of

Goods and Dotal System. In default of special stipulations which derogate from the system of community, or which modify it, the rules hereafter laid down form the common law of France.

All marriage settlements must be drawn up before marriage by a notary and cannot be altered after marriage.

The communauté, either legal or conventional, begins from the day of the registration of marriage, and cannot be stipulated to commence at any other time. Possession in common comprises all the personal property which the husband and wife possessed at the time of marriage and all that accrues to them during marriage, by succession or gift; unless the donor has expressed the contrary.

2. All the fruits, rents and interest of whatever kind, due or received during the marriage, and all that arises from property which belonged to the husband and wife at the time of the marriage, or which have accrued to them since from whatever source.

3. All the real property acquired during marriage. Real property (immeubles) is considered as having been acquired in common, if it is not proved that one of the consorts was the owner or in legal possession of it before marriage, or that it has accrued to him or her by heirship or gift. The liabilities of the communauté consist of: All personal debts due by the consorts on the day when the marriage was solemnized or the successions which fall to them during its continuance, saving compensation for liabilities relative to the real property that belongs separately to one or other of the consorts. 2. Debts, whether of principal sums, arrears or interest, contracted by the husband during the community, or by the wife with the consent of her husband, saving compensation in cases when it is due. 3. Arrears and interest only of such rents and debts as are personal to either of the consorts. 4. Repairs chargeable to the usufructuary of immovables that do not fall in common. 5. The maintenance of the consorts, education and maintenance of their children, and all other charges incidental to marriage. A husband solely administers the property of the community, and may sell, alienate or mortgage it without the concurrence of his wife. He cannot bequeath more than his share of the community. Penalties incurred by the husband for misdemeanors may be recovered out of the property of the community, compensation being made to the wife; those incurred by the wife can only be recovered out of the non-propriété (property of which the usufruct belongs to another) or her real property so long as the community lasts. The criminal condemnation of one of the consorts affects only the delinquent's share in the community, and his or her private property. Deeds executed by the wife without the consent of the husband, and even when she is judicially authorized, do not affect the property of the community unless she contracts as a public trustee and for the purpose of her business.

A husband has the management of all the property of his wife, and may sue solely in all actions that relate to her. He cannot alienate her real property without her consent, and in default of due care he is responsible for deterioration of the property of his wife. The community is dissolved: by death; by judicial sepa ration; by separation of property. All voluntary separation of property after marriage is void. A judgment declaring the separation of property takes effect from the day that the demand was made. Private creditors of the wife cannot, without her consent, demand the separation of property. But in cases of bankruptcy or insolvency of the husband, creditors may exercise her rights to the amount of their claims. Creditors of the husband may obtain redress against a separation of property adjudged, and even executed, in fraud of their rights; they may even make themselves parties to the suit, on the petition for separa

tion, in order to contest it. A wife who has obtained a separation of property must contribute in proportion to her means and to those of her husband, to the expenses of the household, and to those of the education of their children. She must bear these expenses solely if the husband has no means. A wife judicially separated, or separated only in property, regains the uncontrolled management of her property. She may dispose of her personal property, but she cannot alienate her real property without the consent of her husband, or on his refusal, without that of the court of first instance. Upon a partition of the community each consort or heir takes from the bulk of the property (1) his or her private property that did not enter into the community, if it exists in kind, or the property acquired by reinvestment. (2) The price of the reaproperty alienated during the community and not reinvested. (3) Indemnities due to him or her by the community. The claims of the wife take precedence over those of the husband for property which no longer exists in kind. A wife who renounces the community and its effects forfeits her right to the property of the community, and even to the personal property which she herself brought to it. She has a right to retain wearing apparel, etc., for her own use. A wife who renounces has a right to recover: (1) Real property belonging to her, when not alienated, or the real property which has been bought as reinvestment. (2) The price of her real property which has been alienated and reinvested without her consent. (3) All the indemnities that may be due to her by the community. By her renunciation she is discharged from all the debts of the community, both as regards her husband and as regards creditors.

mon.

Married persons may modify the legal community of property by any kind of agreement not contrary to law. The principal modifications are: (1) That the community shall only comprise property acquired in com(2) That the present or future personal property shall not be in common, or only partly so. (3) That it shall comprise the whole or part of the real property, present or future, by changing it into personalty. (4) That the consorts shall pay separately debts contracted before marriage. (5) That in case of renunciation the wife may take back free and clear from all burdens whatever she brought into the community. (6) That the survivor shall have stipulated benefit (préciput). (7) That the consorts shall have unequal shares. (8) That a community of all their property in general shall exist between them. Consorts may exclude from the community all their personal property which they at present or may in future possess. If they put part of it to the amount of a certain sum or value into the community, they are deemed to have reserved for themselves the remainder. Upon the dissolution of the community each consort has a right to take back the value of the personal property that he or she brought into it at the time of the marriage; also that which has accrued to him or her since.

The stipulation by which the consorts, or either of them, bring into the community the whole or a portion of their real property, whether present or future, is called ameublissement (ameublir un immeuble - to change real property to personalty- an immeuble to a meuble). It is either definite or indefinite. It is definite when the consorts declare their intention to change to personalty and bring into the community a particular realty for the whole, or to the amount of a given value. It is indefinite when it simply declares that they will bring into the community real property to a certain amount. The effect of this definite ameublissement is to convert the real property affected by it into the goods of the community as personal property. When the whole of the real property of the wife is so converted, the husband may dispose of it as of the other

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