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tion. The Code Napoleon is much influenord by the sumed to pay for such goods. The common-law principles of the Roman law as regards the powers of liability of a husband civilly for the torts of his wife married women; but the Scottish law goes in the very prevails very generally in this country, unless some opposito direction. The systems which are least in- statute has changed the rule. The courts will sanction dulgent to married women are invariably those which a valid agreement of separation between husband and hare followed the canon law. The doctrines of the wife; and if the husband makes in such agreement a Engiish common law, as well as the Scottish, are provision of a specified sum for the support of the largely borrowed from the Canonists. Recent legisla- wife and makes the payment accordingly, the wife tion has very much softened the rigors of the common cannot create any debts against him for such support. law in England; it has done much in America.

At common law a husband is entitled to the personal In the United States the common-law disability of a property and chose in action of his wife, and they are married woman to make contracts very generally pre- vested in him at her death whether reduced to possesvails where no statute has changed the rule. Several sion or not, in virtue of his marital 'right, and not of of the States have provided for the protection of mar- his right to administration. The liability of the husried women. Wherever such statutes exist the courts band for the debts of his wife which were contracted have given full effect to them. It is generally held before the marriage is a joint one, and it terminates that such statutes do not enlarge the general powers on her death, uuless enforced during coverture by a of the wife as to all contracts, but only as to such as judgment or joint action against both. affect her property or estate. She may now make bar- The rigor of the common law has been very much gains, carry on any trade or business, and perform softened with every advancing step made in the knowllabor and services on her own separate account as if edge of the principles of the Roman law. Its principles she were unmarried; and the earnings and profits be- have been found readily suitable in every age to the relong to her exclusively. She may sue and be sued in quirements of an advancing civilization. Led by their relation to her separate business as if she were a feme theory of natural law the jurisconsults of ancient sole. Foster v. Conger, 61 Barb. 145. The tendeucy of times assumed the equality of the sexes as a principle legislation and the adjudication of the court is to ex- of their Code of Equity. The codified jurisprudence tend the rights and powers of married women beyond of Justinian was a powerful solvent of those barbario those given by the common law. Ordinarily the hus- principles that inhered in the laws in relation to band is entitled to the personal services and earnings women throughout Europe. The legal status of woman of the wife, unless it is earned in a business carried on was read rather by the light of the canon law. This upon her sole and separate account. The statutes in was inevitable since the canon law nearly everywhere some of the States are broad enough to give the wife prevailed. In some of the French provinces married the earnings of her personal services in all cases and women obtained all the powers of dealing with propall the rights which she would have had unmarried, erty which Roman jurisprudence had allowed and the and her husband's creditors cannot reach them on local law was largely followed by the Code Napoleon. their avails. Marshall v. Marshall, 2 Bush (Ky.), 415; Although the Scottish law, which shows such a scruHoyt v. White, 46 N. H. 45 ; Oglesby v. Hall, 30 Ga. pulous deference to the doctrines of the Roman juris386; Whiting v. Beckwith, 31 Conn. 596; Abbey v. Deyo, consults, has been very slow in its progress in mitigat44 N. Y. (5 Hand) 348. As a general rule in this coun- ing the disabilities of married women. try the wife's earnings belong to the husband and A reactionary movement is now taking place. The may be taken for his debts unless some statute gives tendency of legislation is to give married women the them to the wife. The common law does not permit power of acquiring, holding and managing their own husband or wife to be a witness for or against the

property. other in civil actions. In some of the States they have enacted special laws by which the wife or hus

LIABILITY OF TAX COLLECTOR FOR FALSE band may sometimes be witnesses for or against each

RETURN other, but it is generally held that statutes which merely declare that interest shall not disqualify, do not remove the common-law disabilities of husband

MICHIGAN SUPREME COURT, APRIL 21, 1880. and wife, which are founded or principles of public policy.

RAYNSFORD V. PHELPS. In New York (Laws 1869, ch. 887), in civil actions or A tax collector who held a warrant for taxes assessed upon proceedings a husband or wife is competent and com- land which was mortgaged to plaintiff made a false repellable to give evidence for or against each other the

turn that there were no goods upon such land to satisfy same as other witnesses, except in actions for adultery,

who tax, whereby it became a lien on the lands to plaintfor criminal conversation or confidential communica

iff's loss, he being obliged to redeem at the ta sale of

the land. Held, that the tax collector was liable to tion between them. Southwick v. Southwick, 49 N. Y.

plaintiff for the amount of such loss. (4 Sick.) 510. After a dissolution of the marriage by a divorce or by death, either party may be admitted as CTION for loss resulting from a false return by a & witness, unless as to confidential communication tax collector. The opinion states the facts. Demade during marriage. Although the general rule fendant had judgment on demurrer to a complaint seems clearly settled yet there are a few cases which below. seem opposed. After a divorce a woman is still in

C. G. & W. W. Hyde, for plaintiff in error. competent to testify against her former husband in a matter between him and a third party. Having lived

Simonds & Fletcher, for defendant in error. in illicit cohabitation does not render the one incom- COOLEY, J. It was decided in Royoming v. Goodpetent as a witness for or against the other. In case child, 2 W. Bl. 906, that a public officer having minisof bigamy the second wife is a competent witness. In terial duties to perform, in which a private individual criminal cases neither can be a witness for or against has a special and direct interest, is liable to such indithe other. A wife may act as agent for her husband vidual for any injury sustained by him in consequence or he as agent for his wife. A wife who leaves her of the failure to perform such duties. It was an officer husband without good cause cannot bind him to pay connected with the postal service who was held liable for necessaries furnished to her by a person who knows in that case, and the decision is followed in this counthat they are living separate and apart. Neither is a try. Teal v. Filton, 1 N. Y. 537; S. C., in error, 12 husband liable for goods sold to the wife upon her sep- How. 284. Election officers have been held liable on arate credit as feme covert trader, who has never as- the same ground (Ashby v. White, Lord Raym. 938; 1


Salk. 19; Lincoln v. Hapgood, 11 Mass. 350; Jeffries v. time, the plaintiff had foreclosed his mortgage and beAnkeny, 11 Ohio, 372); and so have commissioners of ca

came owner of the lands, and was compelled to redeem highways (Hover v. Burkhoof, 44 N. Y. 113; IIathaway from the tax sale. v. Hinton, 1 Jones (N. C.) 243); and so have inspectors Is the plaintiff wronged by this false return? We of provisions (Hayes v. Porter, 22 Me. 371: Mickerson think he is. It was his legal right that the goods of v. Thompson, 33 Me. 433; Tardes v. Bozant, 1 La. Ann. Freuch should be sold to satisfy the tax, and the law 199); and so havo tax and other officers (Army v. Su always intends that legal rights shall be respected. pervisors, 11 Wall. 136; Tracy v. Swartwout, 10 Pet. 80; Moreover, he alone suffered injury from the false reBrown v. Lester, 21 Miss. 392; Bolan v. Williamson, 1 turn. The public suffered nothing, for the lien on the Brev. 181). It is immaterial that the duty is one pri- land remained and was enforced, and the only injurimarily imposed on public grounds, and therefore pri- ous consequence of the misfeasance in public office marily a duty owing to the public. The right of action was that the tax was collected from one man, when springs from the fact that the private individual re- the command of the law was that it should be collected ceives a special and peculiar injury from the neglect in from another. performance, which it was in part the purpose of the If there is no wrong without a remedy, then it law to protect him against.

would seem that this action should be supported, for It is also immaterial that a failure in performance is the defendant is the only wrong-doer. It may be made by the law a penal offense. Hayes v. Porter, 22 suggested that the plaintiff might have a cause of acMe. 371. The exceptions are of those cases in which tion against French for money paid to his use, but the functions of the office are judicial, or partake of this is not clear. The statute does not make the purthe judicial. Sage v. Laurain, 19 Mich. 137; Goelchens chaser of land, under such circumstances, personally v. Mattheroson, 61 N. Y. 420; Bevard v. Hoffman, 18 liable; it only renders his property subject to seizure Md. 479; Harrington v. Commissioners, etc., 2 McCord, during the life of the tax warrant. Payment by de400. But even in these cases the officer is responsible fendant did not release the property of French, for it if he acts maliciously. Gordon v. Farran, 2 Doug. was released by the neglect of the officer which is (Mich.) 411; Bennett v. Fulmer, 49 Penn. 82, 157; complained of in this suit. The general rule is that Gregory v. Brooks, 37 Com. 365; Slichfadden v. Lipp- taxes can only be enforced by means of the statutory rick, 49 Ill. 286.

remedies. Crapo v. Stetson, 8 Meto. 393; Shaw v. The principle is as familiar as it is sound. It is nev- Pichett, 26 Vt. 482; Camden v. Allen, 26 N. J. 399, ertheless insisted that the present case is not within Packard v. Tisdale, 50 Me. 376; Carondelet v. Picott, 38 it. Tax collectors, it is truly said, are chosen because Mo. 125. But whether or not the rule applies here is the machinery of government must be kept in motion, immaterial, as this action, in either case, is well and to that end it is essential that the public revenue grounded in common law principles. should be collected. They are chosen, therefore, and The judgment must be reversed, with costs, and the their duties imposed on public grounds, not on pri- cause remanded, with leave to defendant to withdraw vate. If through any negligence on the collector's his demurrer and plead, on payment of the costs of part, the State loses a portion of its dues, the officer is demurrer. responsible to the State for the loss; but it is denied (The other justices concur.) that he owes any duty to individuals, except to abstain, as every citizen must, froni committing trespasses on their rights. The question of negligence, in BEQUEST OF BONDS DOES NOT INCLUDE the performance of public duties, must always con

OVERDUE COUPONS. cern the public good. But conceding that the law creates the office of col

NEW YORK COURT OF COMMON PLEAS, SEPTEMBER lector in order that public revenues may be collected,

16, 1880. it does not follow that it leaves that officer at liberty to disregard private interests in their collection. When

MCGRATH Y. VAN STAVOREN. the law prescribes who shall be liable for the payment of taxes, and whose property may be levied upon A testator gave to his piece specified railway bonds; held, therefor, it at the same time, by implication, forbids that interest coupons on the bonds, duo at the time of the officer to seize upon the property of others, or by

testator's deai, did not pass to the niece. ,

HIS action was brought by Emma H. McGrath and

otbers against Emma Van Stavoren and others for favor of the person whose property is the subject of it,

the construction of some of the clauses of the will of and he is at liberty to buy and sell in reliance upon the

George W. Van Stavoren, who died in 1861. To his duty being performed. He has a right to understand

niece the plaintiff named, testator, gave two $1,000 that the officer is commissioned by the law to act only

Erie Railway bonds, on which, at the time of his death, with due respect to the rights of individuals, and that

there were undetached interest coupons due to the if he acts otherwise and causes special injury, he dis- amount of $280. The plaintiffs claimed that this sum obeys his commission, and is not within the protection belonged to the legatee. The court gave judgment for the commission might otherwise give.

the defendants. The plaintiff owned a mortgage on lands on which a tax was assessed for the year 1874. A warrant was DALY, C. J. The coupons attached to the bond issued for the collection of this tax, and was placed in were due and payable at the time of the death of the the hands of defendant for service. The plaintiff's testator and did not pass with the bond to the legatee, case is that during the life of this warrant, and while but form a part of the coupons of the estate. De Genthe defendant held it, there was personal property dre v. Kent, L. R., 4 Eq. 283-5; Wright v. Tucker, 1 upon the land, belonging to one French, who had pur- Johns. & Hem. 266; Brundup v. Brundap, 60 N. Y. 544, chased the equity of redemption after the first Mon- 551; Lock v. Venables, 27 Beav. 598; In re Rogers, 1 day of May, and before the first Monday of December, Drew & Small. 338; Paton v. Shephard, 10 Sim. 186; of that year, from which it was the duty of defendant, Earp's Will, 1 Parsons' Eq. (Penn.) 453, 464-5; Spear v. under the express provisions of the statute, to make Hart, 3 Robertson, 420. collection. Comp. Laws, $ 1006. Instead of perform- "Specific legacies,' says Williams, “are considered ing this duty he falsely made return of no goods, as separated from the general estate, and appropriated whereby the tax became established as a lien upon the at the time of the testator's death, and consequently, land, and the land was sold for its satisfaction. Mean- from that period, whatever proceeds accrue upon

property. The implied prohibition creates a duty in | THIS

them, and nothing more or less, belongs to the legatee." abroad, and went to Amsterdam, whither he was fol2 Williams on Executors (4th Am. ed.), 1221. And it lowed by Charlotte Smith and the three children, and is equally an established rule that the bequest of that he resided there until 1820, and from that date a bond or other security does not pass the interest until that of his death in 1832, he resided in Brussels; which has accrued and is payable on the security, un- that whilst at Amsterdam he had by Charlotte Smith less there is something super-added to the bequest to another child born in 1821 (afterward Mrs. Pieret), and show that such was the intention. Roberts v. Kuffin, that after her birth in 1822 he married Charlotte 2 Atk. 112; Gibbon v. Gibbon, 13 C. B. (4 J. Scott) 217, Smith at Amsterdam, and by the act of register of per Maule, J.; 1 Roper on Legacies (2d Am. ed.), 285; marriage it was declared that the parents intended to Floyd on Wills, 227-8.

legitimize all the children before mentioned, and that The cases suggested - of a bond with coupons at- after such marriage there was a fifth child born (aftertached, given mortis causa (Walsh v. Sexton, 55 Barb. ward Mrs. Denis). It was also set forth that by the 251), or the bequest of a promissory note (Willard, J., evidence taken the four children born before the marin Tifft v. Porter, 8 N. Y. 516) — are not analogous. riage were, according to the law of Holland, legitimate. The gift mortis causa of a bond, with coupons attached By an order of Stuart, V. C., made July, 1862, in which were then due and payable, shows by the de- Goodman v. Goodman, the chief clerk's certificate was livery of the bond with the coupons the intention that confirmed, and it was declared that, it appearing that the donee is to have both the bond and the interest Leyon Goodman was domiciled in Holland at the time that is due on the coupons. But no such intent is in- of the birth of Madamo Pieret, she was entitled to an ferable by the bequest of a bond in a will, where noth-equal share with her sister, Mrs. Denis, in the legacy ing is said about interest wbich is then due upon bequeathed by the will of John Goodman to the chilcoupons attached to the bond or which may become dren of Leyon Goodman. due at the time of the testator's death, and in the case Mrs. Pieret now claimed to share with the four of a promissory note drawing interest, the interest is children of Isaac Goodman, according to the statute payable, together with the principal, when the note of distributions, in the lapsed share bequeathed by becomes due, and necessarily passes, as incident of the Rachel Goodman's will, and the amount was paid into note, by the transfer of a note to another.

court by the trustees of her will.


JESSEL, M. R., said that he agreed with the view CONFLICT OF LAW – LEGITIMACY OF CHIL- taken by Kindersley, V. C., in Re Wilson's Trusts, L. DREN BORN ABROAD.

R., 1 Eq. 247; 13 L. T. Rep. 576, as to Goodman v.

Goodman, 3 Gif. 643; 6 L. T. Rep. (N. S.) 641, which ENGLISH HIGH COURT OF JUSTICE, CHANCERY

was only a decision that Leyon Goodman was domiDIVISION, JUNE 12, 1880.

ciled in the Netherlands, and continued: But then

there is the case of Boyes v. Bedale, 1 H. & M. 79; 10 Re GOODMAN'S TRUSTS, 43 L. T. Rep. (N. S.) 14.

L. T. Rep. (N. S.) 131, which came before Lord Hath

erley when vice-chancellor. It was decided in that A child, illegitimate according to English law, but who has case that the child or children of a person domiciled been, according to the laws of its domicile and of its

in England must mean the children according to Engparents' domicile, legitimized by a post-natal marriage,

lish law, as distinguished from the children born before cannot take under the statute of distributions as one

marriage and which were not legitimate according to of the next of kin of an intestate dying domiciled in England. The word "children," in the statute of dis

English law. But the vice-chancellor said more than tributions means children according to the English

that. This is what he said: “I take it that the lanlaw.

guage of the statute of distributions would be dealt

with in the same way. If an intestate dies domiciled ETITION for payment out of court.

in England, the division of his property is governed This was a petition for the distribution amongst throughout by English law, and no person could take the next of kin of Rachel Goodman, who died domi- by representation under that statute, unless legitimate ciled in England in 1878, of a lapsed share of residue by the law of England." That is no doubt only a dicpaid into court by her executors under the Trustee tum, but it is a dictum entitled to very great respect. Relief Act.

If I had any doubt upon this subject in this case I The question raised by the petition was, whether a re- should follow the dictum, but I feel myself no doubt spondent, Mrs. Pieret, who was illegitimate according whatever. The words of the (statute under which to the law of England, but claimed to be legitimate these parties must come are “brother's and sister's and therefore one of the next of kin, on the ground children." When an intestate dies without children that she had been legitimized according to the law of you go to the next of kin, but you must not carry in Holland by her parents' post-natal marriage, could representation beyond brother and sister, and cousetake a share in the distribution of the fund.

quently this lady must prove herself to be a brother or The facts were as follows: The testatrix died in 1878, sister to take at all, and the question is, whether the having bequeathed a third part of her residuary per- word does not mean exactly what Wood, V. C., said sonal estate to a niece who had died during the testa- children according to the law of England. I think trix's life-time. At the date of the death of the that that is the meaning. Then I have in addition to testatrix her sole relatives were the children of her that the authority of Kindersley, V. C., in Re Wiltwo deceased brothers, Isaac and Leyon Goodman; of son's Trusts, where he entirely agrees with Boyes v. Isaac there were four children living, and the children Bedale, and decides accordingly. He says: “Now, the of Leyon had formed the subject of a special inquiry will being a will made in England by an Englishman directed in a suit of Goodman v. Goodman, 3 Gif. 643. domiciled in England, must be construed according to That suit was a suit for the administration of the estate the law of England. Every term in it must receive of Henry Goodman, the father of the present testatrix, that interpretation which belongs to it according to who by his will bequeathed a share of his residue to English law. What is the interpretation which the the "children of Leyon Goodman."

law of England gives to the term 'children?' UnBy tho chief clerk's certificate in Goodman v. Good-doubtedly children lawfully begotten, ex justis nuptiis man, it was found that Leyon Goodman had three procreatos, unless indeed there be something in the children by Charlotte Smith, born respectively in 1815, context which satisfies the court that the testator 1818, and 1820, in London, and that in 18:20 he left Eng- meant to use the expression in a different sense. land with the intention of permanently residing Therefore he quite agrees that under the particular

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circumstances it must be so. Then afterward he refers mentioned is applied to prevent vexatious litigation to Boyes v. Bedale, and says: “I do not hesitate to and is rigidly enforced in common-law actions, but in follow that decision;" so that decision agrees with equity will not be enforced unless the equity of tho Boyes v. Bedale. I think, if it is agreed that those case requires. In this case the action and judgment cases are decided rightly, in the case of a will of a of Charmed only plaintiff and was enforced against domiciled Englishman, according to the statute of dis- no part of the mortgaged premises. Judgment aftributions, the word "children," wherever it occurs, firmed. Dougherty v. Remington Paper Company, apmust mean children according to the English law. It pellant et al. Opinion by Earl, J. is impossible that there can be two meanings put on [Decided Sept. 21, 1880.] the same words in the statute. It must mean the

MANDAMUS – WILL LIE AGAINST TOWN BOARD OF same. Then as regards the actual decision, the declara

AUDIT TO COMPEL SPECIFIC EXAMINATION OF CLAIM.tion by Stuart, V. C., that they take under another

Relator, who was commissioner of highways of the will, cannot decide the question of legitimacy for all

town of Elmira, presented his bill to the town auditors, purposes.

in proper form and duly verified, for twenty-seven Some further discussion took place, during which

days' service, specifying by its date each day for which his lordship said that, as he understood, in Goodman v.

payment was claimed. The rate of compensation of Goodman, the opinions of Dutch advocates were taken,

commissioners of highways fixed by statute is two and that according to them all the brothers and sisters

dollars per day. The auditor allowed relator thirtyof Madame Pieret and Mrs. Denis were legitimate by

four dollars as a gross sum, without allowing or disalDutch law, and ho did not at present see on what

lowing any specific item alleged in the account, and ground in that action any of them had been excluded

without deciding that any definite or particular days from participating.

were not necessarily spent in the service of the town.

Held, that the action of the town board of auditors NEW YORK COURT OF APPEALS ABSTRACT:

was improper and a mandamus would lie to com

pel a proper award. Within the range of their discreFORMER ADJUDICATION

tion boards of auditors are sufficiently powerful. The ACTION BY PLEDGEE OF

courts may not dictato their conclusion, but may MORTGAGE TO FORECLOSE - PAYMENT OF JUDGMENT

jointly require that they arrive at one in a just and BY OWNER OF MORTGAGE RESTORES HIS RIGHT TO

intelligent way and with some reasonable respect for FORECLOSE.- A executed a mortgage to B to secure the payment of $4,500. B assigned the mortgage to

the possible rights of creditors. A claimaut is entitled plaintiff in his action. Plaintiff assigned it to C to

to the judgment of a board of auditors upon each

item of his claim, and a mandumus framed to compel secure the payment of $1,334, and the assignment was

tho performanco of that duty will bo sustained. Peoexpressed to be upon the condition that it should be

ple v. Supervisors of Delaware, 45 N. Y. 196. Order void upon the payment of that sum. The sum secured

affirmed. People ex rel. Thurston v. Board of Town by the mortgage was then due. The $1,334 not being paid as agreed, C commenced an action to foreclose

Auditors of Elmira, appellants. Opinion by Finch, J. the mortgage, all the parties to this action being made

[Decided Sept. 21, 1880.] defendants. That action was defended by A, who set up that the mortgage was given for the sole purpose of

UNITED STATES CIRCUIT AND DISTRICT securing against liability for indorsements upon notes

COURT ABSTRACT.* which had been paid, and the mortgagee sustained no damage. Plaintiff in this action also appeared and AGENCY - PAYMENT TO AGENT BY MISTAKE WHEN denied personal liability. In that action judgment AGENT NOT LIABLE TO REPAY. - It is a general rule was given that C had a lien upon the mortgaged prem- that an agent, known and treated with as such, cannot ises for the $1,334, and a sale of sufficient of them to be compelled to pay back money received by him unpay that sum was ordered. The parties appearing ap- der a mutual mistake of fact, and paid over to his pealed and the judgment was affirmed. Plaintiff paid | principal. Holland v. Russell, 30 L. J. 312; 32 id. the amount of the judgment and afterward com- 297 ; Shand v. Grant, 15 C. B. (N. S.) 322-324; Newall menced this action to foreclose the mortgage. The R. v. Tomlinson, L. R., 6 C. P. 405; Buller v. Harrison, company, which had an interest in the mortgaged Cowp. 565-569; Frye v. Lockwood, 4 Cow. 454-456; premises, appeared and set up the judgment in the Granger v. Hathaway, 17 Mich. 500; Morral v. McClelprior action as a bar and defense to this action. Held, lan, 1 Wend. 173; Costigan v. Newland, 12 Barb. 456. that the former judgment did not constitute a defense. If tho agent acts in bad faith, or with knowledge of The assignment by plaintiff to C constituted a pledge his principal's want of right to receive the money, or of the mortgage to him as security for the sum is himself a party to an illegal exaction of the money, named. Hoskius v. Kelly, 1 Rob. 160; Campbell v. or is not authorized by his assumed priucipal to act for Parker, 9 Bosw. 322. Plaintiff remained the general him, as where his power of attorney is a forgery, payowner of the mortgage. The court decided that Chad

ment of the money over will be no defense.

Miller v. a lien upon the mortgaged premises to tho extent of

Aris, 3 Esp. 231; Snowdon v. Davis, 1 Taunt. 359; Edthe sum named; that lien was discharged and the wards v. Hodding, 5 id. 416 [*815); Seidell v. Peckmortgage was restored to plaintiff as fully as she owned

worth, 10 S. & R. 442. See, also, Story on Agency (8th and possessed it before the assignment. The principle ed.), ss 300, 301, and notes. If the party receiving the that there can be but one suit for the enforcement of

money, though an agent in fact, does not disclose his one entire demand, and that where an action is brought

agency to the party making tho payment, there is of for a part of the demand a judgment in such action is

course no presumed consent or direction that he pay a bar to an action for another part of the demand


and payment to his principal will be no defense. (Phillips v. Berick, 16 Johns. 136; Bendernagle v. Cocks, In such a case, having acted as a principal, he will not 19 Wend. 207; Fish v. Folley, 6 Hill, 54), has no applica- be permitted to defend on the ground that he was not tion to this case. If C bad proceeded to judgment the principal. Canal Bank v. Bank of Albany, 1 Hill, and sale for a part only of his demand, the whole being 287, 293, 294; Bank of Commerce v. Union Bank, 3 N. due, and theu brought another action, the principle Y. 230, and Kingston Bank v. Ettinge, 40 id. 391, conmight have been invoked against him. But plaintiffsidered. District, S. D. New York, June 24, 1880. did not hold the mortgage under C. Upon satisfying United States v. Pinover. Opinion by Choate, D. J. bis lien the pledge was restored to her unaffected by any thing the pledgee might have done. The principle

Appearing in 3d Federal Reporter

CONSTITUTIONAL LAW - IMPAIRING CONTRACT — EX- officer's return on an original writ cannot be controEMPTION FROM TAXATION – FEDERAL JURISDICTION. verted by the defendant except as provided by statute; - The Legislature of a State may contract in a corpo- and in Estes v. Cooke, 12 R. I. 6, it was decided that rate character for exemption of the corporate property the return on an execution was conclusive on the parfrom taxation, unless there be some constitutional ties in a subsequent action. In other States, with two probibition. Tomlinson v. Branch, 15 Wall. 460. Where or three exceptions, the rule is that the return is cona State bas, by valid contract, exempted certain prop- clusive on parties and privies until set aside in some erty from taxation, it cannot by subsequent legislation direct proceeding. Swift v. Cobb, 10 Vt. 282; Bates v. subject that property to taxation, nor prohibit the Willard, 10 Metc. 62, 80; Campbell v. Webster, 15 Gray, United States courts from using their injunctive 28; Whitaker v. Sumner, 7 Pick. 551; Sykes v. Keatpowers to protect the contract from violation. While ing, 118 Mass. 517, 520; Bramford v. Melvin, 7 Me. 14; the general rulo is that courts will not enjoin the col- Huntress v. Tiney, 39 id. 257; Messer v. Bailey, 31 N. lection of taxes upon the mere ground that they are H. 9; Herman on Executions, $ 242. The return is in excessive or illegal, yet if their exaction is unconstitu- fact a part of the record, and while it stands is as contional, and the party assessed has no other adequate clusive as any other part of it. Barrows v. National remedy, or their enforcement will occasion irremedi- Rubber Co. Opinion by Durfee, C. J. able oppression and produce a multiplicity of expensive [Decided June 18, 1880.] suits, an injunction to restrain their collection will be

FRAUDULENT CONVEYANCE — CONVEYANCE IN CONgranted. State Railroad Tax Cases, 92 U.S. 575. Cir

SIDERATION OF MARRIAGE NOT VOLUNTARY. — Marcuit, M. D. Tennessee, 1880. Louisville & Nashville Railroad Co. v. Gaines, Comptroller. Opinion by Bax

riage is deemed in law a valuable consideration. A

conveyance, therefore, in consideration of marriage, ter, C. J.

stands upon a different footing from a voluntary conMARITIME LAW - SEAMAN CAN BE REQUIRED TO veyance. All the authorities agree to this extent, at WORK ON SUNDAY. — A seaman upon a schooner in the least, that a man, though indebted, may settle a porharbor of Frankfort, Michigan, wbere she was towed tion of his property on his intended wife, and that, in to receive a cargo of lumber, cannot refuse to work on the absence of fraud, the settlement, if no more than Sunday, in loading the schooner, where the towing a reasonable provision for the wife, will be upheld vessel is not able to enter the harbor by reason of an against existing as well as subsequent creditors. Caminsufficiency of water, and is lying outside in the lake, pion v. Cotton, 17 Ves. Jr. 264; Armfield v. Armfield, awaiting the schooner, and is in a place of danger. Freeman (Miss.), 311; Croft v. Arthur, 3 Des. 223; BuckW the master of the schooner was of opinion that ner v. Smyth, 4 id. 371; Davidson v. Graves, Riley's it was necessary, for the safety of the towing vessel, Eq. 232; Magniac v. Thompson, 7 Pet. 348; Marshall v. that the loading of the schooner (begun on Friday) | Morris, 16 Ga. 368; Smith v. Allen, 5 Allen, 454; Bonshould be completed on Sunday, and ordered tho work ser v. Miller, 5 Oregon, 110. National Exchange Bank to be done, it was the duty of the crews to obey. In v. Watson. Opinion by Matteson, J. this case, held, that a seaman refusing to work on Sun- [Decided July 3, 1880.] day was rightfully expelled from tho schooner, and STATUTE OF FRAUDS CONVEYANCE OF REALTY forfeited his wages for his disobedience. The Richard

WITH RENTS RESERVED - IMPLIED CONTRACT. - A conMatt, 1 Biss. 440. District, E. D. Pennsylvania, Aug. 2,

veyed to B certain realty by a deed poll in which 1880. Smith v. Schooner J. C. King. Opinion by

specified rents were reserved for periods of time deAcheson, D. J.

scribed. B entered under the deed. Held, that by his PARTIES --TO SUIT TO DETERMINE VALIDITY OF WILL entry B contracted to pay the rents as reserved. Held, PERSONS NOT IN ESSE. – In a suit to determine the further, that B's contract being an implication of law validity of a will it is a settled rule of law that where was not within the statute of frauds. The contract to there are contingent limitatious and executory devises pay the rent reserved was not an express contract but to persons not in being, the suit may proceed against an implied contract, or a contract raised by law from those in being holding the prior estate, and that a the nature of the transaction, and it has been repeatjudgment or decree against the latter binds the former edly held that such contracts are not within tho statute in all respects as if they were in esse and parties to the of frauds. Goodwin v. Gilbert, 9 Mass. 510; Fletcher suit. Especially is this so when the former are before v. McFarlane, 12 id. 43; Felch v. Taylor, 13 Pick. 133; the court by representation - that is, where the rights Sage v. Wilcox, 6 Conn. 81; Allen v. Pryor, 3 A. K. and interests which those not in esse would have if Marsh. 305; Browne's Stat. of Frauds, S 166. In Goodthen in esse are the same with those of parties in being win v. Gilbert, the doctrine is broadly laid down that, and before the court. Gifford v. Hort, 1 Sch. & Lef. where land is conveyed by deed poll and the grantee 408; Story's Eq. Pl., $$ 145, 792; Mead v. Mitchell, 17 enters under the deed, certain duties being reserved N. Y. 210; Baylor's Lessee v. Dejarnette, 13 Gratt. to be performed, as no action lies against the grantee 152; Falkner v. Davis, 18 id. 651; Powell v. Wright, 7 on the deed, the grantor may maintain assumpsit for Beav. 444-449; Lorrillard v. Costar, 5 Paige, 172; Pal- the non-performance of the duties reserved, and the mer v. Flower, 1 Eng. Rep. 664; Bassnett v. Moxon, 13 promise being raised by the law is not within the statMoaks, 716; Willis v. Slade, 6 Ves. 498; Lloyd v. Johns, ute of frauds. Iu Pike v. Brown, 7 Cush. 133, Shaw, 9 id. 37-52. Circuit, S. D. Ohio, July, 1880. McArthur C. J., in delivering the opinion of the court, instances v. Allen. Opinion by Swayne, C. J.

the case of rent reserved in a lease by deed poll as a signal and familiar illustration of the doctrine. And

that occupation under the lease is not indispensable to RHODE ISLAND SUPREME COURT AB

the recovery, if only the lease has been accepted, was STRACT.

distinctly decided in Kabley v. Worcester Gas Light

Co., 102 Mass. 392, in a case in which the lessees never EXECUTION -OFFICER'S RETURN ON, CONCLUSIVE occupied at all. “It is enough," say the court, “that UNTIL DIRECTLY IMPEACHED. — An officer's return on they accepted the conveyanco which gave them the an execution is, until changed by proper proceedings right of immediate and exclusivo occupation. The operating directly on the record, conclusivo upon the law would imply from such acceptance a promise to parties to the action in which the execution issued, and comply with tho terms of the lease, and such a promise also upon an assignee of one of the parties who takes is not within the statute of frauds." Providence from him pendente lite, property attached in the action. Christian Union v. Elliott. Opinion by Durfee, C. J. In Angell v. Bowler, 3 R. I. 77, it was decided that an [Decided July 3, 1880.]

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