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APPEAL from.ecimen tacourt, Oconto county. The
the order was irregularly made, or for leave to purge tion of consisting of two detached bodies of territory, himself of the contempt and be let in again to make the same as by the first order. his defense. Brinkley v. Brinkley, supra.
We shall not follow the very able arguments of the The order should be affirmed.
learned counsel of the appellaut, urging many and weighty reasons of public policy, why, if possible, the
Constitution should be so construed as to require a TOWN-MUST CONSIST OF CONTIGUOUS TER- town to be composed only of contiguous territory, and RITORY.
reasons based upon the Constitutional rule of uni
formity of town goverument and of taxation. We WISCONSIN SUPREME COURT, SEPT. 21, 1880. shall pass directly, and confine ourselves strictly, to
the consideration of the true meaning and proper conCHICAGO AND NORTHWESTERN RAILWAY Co. v. Town
struction of the term “town," as used in the ConstiOF OCONTO.
tution, with reference only to the defect in the
organization, or in the changing of the boundaries of The word "town," as used in the Constitution of the State the town of Oconto, here urged, as making the orders
of Wisconsin, denotes a civil division composed of con- of the board of supervisors void. There are few, if tigumus territory, and under the power granted to
there are any, decisions of courts having a bearing county boards by the statute, " to set off, organize, vacate, and change the boundaries of tho towns in their
upon this question, directly or indirectly, and it must respective counties " (R. S., 8 670, subd. 1), such a board
therefore be treated as an original one, and determined cannot make a valid order changing the boundaries of a
somewhat arbitrarily. The word "town," philologictown so that it shall consist of two separate and de- ally considered, is a change in the orthography and tached tracts of land.
pronunciation of the Anglo-Saxon word “tun," from the verb tyan,” meaning to "inclose," and "tun,"
therefore, means an inclosure. It was used to denote states the facts.
a garden inclosed by a hedge, or a collection of houses F. J. Lamb and W. F. Vilas, for appellant.
inclosed by a wall. Zell's Popular Encyclopedia, and Tracy & Bailey, for respondent.
Johnson's New Universal Encyclopedia.
Its general and customary usage in England, as ORTON, J. This suit is brought to recover from the denoting a collection of houses or hamlets between a town of Oconto, the defendant, certain moneys paid | village or city, or its stricter legal or civil meaning, as under protest for taxes claimed to havo been illegally denoting a civil corporation of larger territory, which assessed upon the plaintiff's lands, situated in towns might include a village or city, is somewhat foreign 35, 36, and 37, range 16, in Oconto county, by the said to the use of the word, and the civil and territorial towns, for the year 1878. Two grounds of recovery subdivision or organization which it is used to signify were relied upon at the trial — First, that the assess- in this country. Its first use in this country was to ment was improperly made; and second, that these define the original or primary civil or governmental lands were not subject to assessment and taxation by organizations of the early colonists of New England, and in the town of Oconto. The latter ground, being who knew by bitter experience the oppressive tyranny the more important, and if well taken, fatal to the of imperial law, and who desired, above all things, to legality of the assessment, will alone be considered.
be governed not only by laws made by themselves in To sustain this objection to the assessment, it is
primary assembly, but having a limited and local claimed that the several orders of the board of super-application to their wants in small and independent visors of the connty of Oconto, attaching these lands communities. They were considered and adopted by to and making them a part of the town of Oconto, are those alone who knew their fitness and adaptation to void, because they are left by such orders in a body of their wants, and they received the general assent. lands separated and detached, and not contiguous to This attachment to local law and local government, the main body of lands in said town, in violation of which then prevailed and still prevails in this country, the Constitution, which, it is claimed, requires towns was the producing cause of the organization of the to be composed and constituted of contiguous territory towns of the New England colonies, which had exonly.
clusive control of their local affairs. Each town had There was some question on the argument whether clearly-defined territorial limits or boundary, so rethe orders of the board of supervisors of Oconto stricted as to fully secure to each citizen the advantcounty, organizing and changing the boundaries of the ages of a local or home government, and not so extended town of Oconto, in fact left these bodies of land so as to defeat or lessen them. detacbed, but by an inspection of the orders it is The nature and uses of this form of local governapparent that they are so detached. The order of the ment are fully expressed by one of the earliest acts of the board of November 15, 1876, it is conceded, made the Massachusetts colony, in general court in 1636, viz. : town consist of two detached bodies of lands, in the “Inasmuch as particular towns have many things smaller body of which the lands of the appellant in which concern only themselves and the ordering of question were situated, and the two bodies separated their own affairs, and disposing of their own towns, it by the distance of nearly 20 miles of intermediate ter- is ordered that the freemen of every town, or the ritory. By the order of March 25, 1877, certain lands, major part of them, sball only have power to dispose of a part of, and contiguous to, the larger body, and in their own lands and woods, with all the privileges and the direction of the lands in question, were detached appurtenances, not repugnant to the laws and orders from the town of Oconto, and added to and made a of the general court." Local Law of Mass. and Conn. part of the towns of Peshtigo and Marinette. By the by Fowler, 10-20. can be seen that in the very order of January 12, 1878, certain lands lying con- nature and uses of such a local government the town tiguous to the lands so detached were added to and must be — First, of limited territorial extent; second, made a part of tho town of Oconto, but this order of compact and contiguous territory; third, its boundfailed to embrace the lands so detached, and they were ary must be clearly defined and continuous; and still left in those two other towns. These orders, then, fourth, it should embrace within its government only taken together, still leave the two bodies detached, but those having a unity or similarity of interests. Iu New not by so great a distance. It was unquestionably in- England, towns having been the first local civil governtended by the last order to cure this defect in the first ments, and antecedent to the formation of counties, one, and connect the two bodies together; hut by this the counties were made by a consolidation of its towns. omission the town still remains subject to the objec- In the western States, however, when an organic law
PETITION for writ of habeas corpus. The facts ap
is first made for the government of the whole territory, also poid, and tho taxes so paid by the appellant under or a constitution is formed for the whole State, coun- protest are illegal and void and may be recovered in ties are formed first, and towns within them after- this action. ward; but the same original idea and meaning of the The judgment of the Circuit Court is reversed, and town remain the same, and that is, “a subdivision of the cause remanded for a new trial. a county,” as defined in Johnson's New Universal Encyclopedia, and “subdivision of a county, as a parish is part of a subdivision of a diocese.” “In popular SUNDAY LAWS AFFECTING ONE CLASS usage, in America, the whole te tory within certain
ONLY INVALID. limits.” Imperial Dictionary. Webster defines town as an enclosure;"
CALIFORNIA SUPREME COURT, AUGUST 30, 1880. whole territory within certain limits;" and the word “parish" as a district of certain limits, which cannot
Ex PARTE WESTERFIELD. be altered without legal enactment;" and the word “district" as "a defined portion of the State."
A statute making it a misdemeanor for those engaged in In Abbott's Law Dictionary it is defined, “a walled the business of baking to bake or to permit their em place or borough." Finch, 80.“ Townships are in
ployees to do so, for the purpose of sale, on Sunday; corporated, not as cities and villages are, for their own
held unconstitutional under a provision forbidding the benefit, and by their assent, but like counties, as mere
legislature to pass special laws for the punishment of
crimes and misdemeanors. civil divisions of the State." Waltham v. Kemper, 55 III. 346. “The several towns of this State are corporations for certain very limited purposes : for the conservation of highways, * relief of the poor,
F. J. Castlehun, for petitioner. the assessment and collection of taxes, etc. The several towus are political divisions, organized for the
D. L. Smoot, contra. convenient exercise of portions of the political power
MYRICK, J. The petition is in the custody of tho of the State.” Lorillard v. Town of Monroe, 11 N. Chief of the Police of the city and county of San Y. 392. All of these terms defining “town
Francisco, under a warrant charging a misdemeanor strangely expressive of compactness, adjacency, and under an act entitled "An act to regulate and provide contiguity, such as "enclosure," ** whole territory for a day of rest in certain cases," approved April 16, within certain limits," " defined portion of the State,' 1880. a subdivision of a county." A town, in its name
The act provides that “it shall be unlawful for any and uses, conveys the very idea of locality, vicinity,
person engaged in the business of baking to engage. vicinage and convenience. A town is a subdivision in
or permit others in his employ to engage, in the labor the singular; not subdivisions, or many subdivisions,
of baking for the purpose of sale between the hours of in the plural. Aside from these definitions, all of
6 o'clock P. M. on Saturday and 6 o'clock P. M. on Sunwhich appear to be conclusive of the question, there is day, except in the setting of sponge preparatory to much force in the general and almost invariable usage, tho night's work; provided, however, that restaurants, in this country at least, in the organization of towns hotels and boarding-houses may do such baking as is and counties, as in precincts, districts, cities, and vil
necessary for their own consumption;" and a violalages, in forming them of adjacent and contiguous ter- tion of the act is made a misdemeanor, punishable by ritory. If there had been many instances, and I might fine and imprisonment, or both. say any, of the organization of a town constituted of
This act is in conflict with section 25, article IV, of separate, detached, and remote bodies of territory, the
the Constitution, and is therefore void, evils would have been so manifest and numerous that
“Section 25. The Legislature shall not pass local or cases of complaint would havo found their way into
special laws in any of the following enumerated casesthe courts and reports, but by considerable searching that is to say:
* Second. For the punishment I have been unable to find a single case directly involv
of crimes and misdemeanors." ing this question.
The act purports, according to its title, to be an act To so construe the constitution as to authorize the
to provide for a day of rest. Instead of pursuing that board of supervisors of a county to organize or change
intent, it goes on to say that certain acts, viz., the the boundaries of a town so that it would be composed
labor of baking for the purpose of sale, if performed of separate, detached, and non-contiguous territory,
by certain persons, viz., persons "engaged in the buswould most unquestionably restrict the sovereign
iness of baking for the purpose of sale," shall constipower of the legislature in the organization of assem
tute a crime, and shall be punished. The employees bly districts" consisting of contiguous territory, and
are not to be punished. This is special legislation. A bounded by county, precinct, town or ward lines."
certain class is selected. As well might it have said, it Article 4, S4, Const. The term precinct, as used in
master carpeuters or blacksmiths, or if attorneys hafthis section, has reference only to certain districts
ing clerks, shall labor or permit employees to labor, having similar functions to those of towns, as in Grant
they shall be deemed guilty of misdemeanor and be county, and perhaps other places in territorial times, punished ; carpenters or blacksmiths not master workand which passed away upon the formation of the first
men, or attorneys without clerks, may labor at their legislative districts, after the admission of the State,
will. The baking of bread is in itself lawful and necesand the term is no longer used except, perhaps, occa
sary. Even if there be authority to restrain the labor sionally, interchargeably with election districts. By
on some one day, it must be, if at all, under a general section 5 of the same article, senate districts are re
law restraining labor on that day. quired to be of alike “convenient contiguous terri
Let the petitioner be discharged. tory," and the power of the legislature would be restricted in their formation if the territory of towns MCKINSTRY, J. I concur. I entertaiu no doubt that need not be contiguous. Supported by these authori- the invalidity of the statute under which the defendant ties, as well as most obvious and numerous reasons of was arrested may be determined upon habeas corpus. public policy, practical convenience, and respecting “Sunday laws" have been held not to be violatire of the publio welfare, we decide that a town must consist a provision of a constitution, that "the free exercise of contiguous territory, and that the orders of the and enjoyment of religious profession and worship
. board of supervisors of Oconto county are void and of without discrimination or preference, shall forever bo no effect; and that the assessment complained of is allowed in this State.” Ex parte Andrews, 18 Cal. 678.
Such laws have been sustained as simply requiring a building." The warehouse with its contents was periodical cessation from labor — the power to pass totally destroyed by fire in November, 1872. At the them resting upon the right of the Legislature to pass time of the loss, it contained goods belonging to the laws for the preservation of health and the promotion defendants aud goods consigned to them for sale of good morals. I do not deem it necessary, in this amounting in value to $174,073, and goods sold but not place, to assent to the proposition, that a law which removed of the value of $30,551. Among the goods enforces, under penalty of fine and imprisonment, a sold, but not removed, were certain goods of the cessation from labor upon Sunday by one whose re- plaintiffs, which they had purchased of the defendligious belief has imposed upon him the duty of taking ants. The insurers settled as for a total loss for $165,his rest on Saturday, in no degree discriminates against 000. Some of the insurance companies became inhis " religious profession." But admitting the con- solvent so that defendants received but sixty-three stitutionality of general laws prohibiting all labor on per cent of this amount, which was not enough to pay Sunday, or upon any other day, I think the act of April the value of the goods owned by and consigned to de16, 1880, is a “special law," within the meaning of those fendants. It appeared that if the goods sold and not terms as employed in section 25, article. IV, of the removed were not included in the adjustment of loss, present Coustitution. The act does not declare the there would have been no difference in the amount business of “baking,” as ordinarily conducted, to be allowed for insurance. Defendants were bound by a nuisance; nor does it contain any intimation that the contract to insure all their consignments, and had apbusiness of baking may tend to interrupt divine wor- plied the sum received to indemnify themselves and ship by any class of sectaries, or can otherwise inter- their consignors, and no portion of it was applied for fere with the rights or privileges of any citizen. The the benefit of plaintiffs. It was usual for those enbaking of bread is not only lawful and necessary, but gaged in this business to take insurance on goods sold we will take notice that there is nothing so peculiar in and not delivered or removed, but there was no custhe occupation as that those engaged in it require-as tom to insure for the benefit of purchasers; and there a sanitary measure or for the protection of their was no contract, to insure for the plaintiffs' benefit the morals-a period of rest not required by those engaged goods thus purchased by them. Plaintiffs brought in many other employments.
this action to recover an aliquot portion of the insurA general law must include within its sanction all ance moneys secured to apply on their goods lost. who come within its purpose and scope. It must Held, that they were not entitled to recover on the be as broad as its object. If it is to be made a crime ground that it was the duty of the defendants to insure not to refrain from labor during the whole or dur- their goods not removed from the warehouse, nor ing any portion of any given day of the week, it could they on the ground that the defendants, having must be made equally a crime as to all persons who voluntarily insured the plaintiffs' goods, and received do not so refrain; or the prohibitory law must be from the insurers money on account of the same, are made applicable to all of a class, the members of bound in equity to pay it over. The defendants rewhich for reasons apparent upon mention of the ceived no money on account of the goods of the plaintclass, may at least require, for the benefit of their iffs. The money that they received was not sufficient health or morals, a period of rest not beneficial to to pay for their own goods and those of their consignors any other class or individual. We might perhaps destroyed by the fire; and there was no equity, as take notice that there are controlling reasons why between them and the plaintiffs, which required them clergymen should not be prohibited from pursuing their to pay over to the plaintiffs any portion of the money pious labors on the Christian Sabbath, and that a law so received. And even if plaintiffs' goods were inmight still be general which included all others, al- cluded in the statement of loss, that could not of itself though it excluded them. So we might perhaps hold give any rights to the plaintiffs which they did not that there are other special classes who might be per
The defendants were under no mitted to pursue their avocations, notwithstanding a obligations to include these goods in their statement law which prohibited labor by the rest of the commu- of loss. If they had been omitted from the statement, nity, because of the fact that their peculiar pursuits the defendants would have been entitled to receive the involved “works of necessity,” and placed them be- same amount; and they did not actually receive any yond the benefits of the law which would compel an more because they were included. Martineau v. Kitchenforced cessation of labor by others. But there can ing, L. R. 7 Q. B. 436; Stilwell v. Staples, 19 N. Y. 401. be no rule which will permit the prohibition of a par
Reitenbach v. Johnson. Opinion by Eudicott, J. ticular kind of labor in itself innocent and beneficial
MERGER- -OF MORTGAGE SECURING NOTE. - Defendto the public. There is no reason, and can be no reason, why bakers should be forced to rest from their
ant made his note payable to the order of plaintiff and labors periodically, which is not applicable to many
secured the same by mortgage upon certain premises other classes of artisans and workmen. To say that
owned by him. These premises defendant conveyed every law is "general” within the meaning of the
to W., who assumed the mortgage. W. conveyed the Constitution, which bears equally upon all to whom it premises to plaintiff, subject to the mortgage, which
was reoited to form part of the consideration. Plaintiff is applicable, is to say that there cau be no special laws.
afterwards conveyed the premises to D. and brought this action on the note, Held, that there was a merger
of the mortgage, and defendant was not liable on tho MASSACHUSETTS SUPREME JUDICIAL
note. Dickerson v. Williams. Opinion by Ames, J. COURT ABSTRACT.
TAXATION - - OF LANDS HELD BY RELIGIOUS CORPOJULY AND SEPTEMBER, 1880.
RATION. – Plaintiffs, a religious incorporated society,.
purchased by one deed a tract of land through which INSURANCE FIRE POLICY - INSURANCE OF GOODS was a well-defined right of way. On the east of the SOLD BUT NOT DELIVERED- INSURANCE
way were buildings occupied for the purposes of the OTHEII'S BENEFIT.-Defendants, who were commission society. On the west side of the way there was no merchants, effected insurance in their own name to the building, but it was intended by the society to conamount of $165,000, upon merchandise contained in struct a building to be used for school purposes
On their warehouse in Boston. It was described in the this land, which was suited for cultivation, there had policies of insurance as “merchandise, principally been vegetables raised, part of which were used by the hide, and leather, their own, or held by them in trust, society for its own purposes and the remainder given or on commission, or sold, but not removed from the away to the poor. The society leased no part of the
land and derived no profit from it. Held, that the morality and policy (Goodnight v. Moss, Cowper, 591), land upon the west side of the way was not exempt and no judge or author has ever dissented from his from taxation under a statute exempting houses of strong approval. Apd changes in the statute have left religious worship from taxation. Under that statute this rule of the common law untouched. Tioga County it has been decided that the land on which such houses v. South Creek Township, 75 Penn. St. 436; Boykin v. stand is included in the exemption. Trinity Church Boykin, 70 N. C. 262; Chamberlain v. People, 23 N. Y. v. Boston, 118 Mass. 164. Real estate held by a reli- 88; People v. Overseers of Ontario, 15 Barb. 286; gious society, not more than sufficient in extent to Hemmingway v. Towner. 1 Allen, 209; Parsons v. Peomeet its reasonable requirements in this respect, and ple, 21 Mich. 509. (3) Where there was no proof of indevoted by such society in good faith to the erection ability or of the certain want of opportunity for of a church edifice, is entitled to the exemption given intercourse, and a child was born eight months after by the statute. But it is the appropriation of the an alleged criminal conversation, held, that the testiproperty to the sacred uses contemplated which se- mony of the husband and wife that they had had no cures this privilege. The lot of land on the west side intercourse would not overcome the presumption of of the way was not so appropriated. No church edi- legitimacy of the child. It was a maxim of the Roman fice had been erected upon it; and it did not appear law, and which the common law copied, that the prethat any such edifice was intended to be erected upon sumption is always in favor of legitimacy (Co. Litt. it. Held, also, that it was not exempt under a pro- 126a), and that he is the father whom the marriage invision exempting real estate of literary, benevolent, dicates (Co. Litt. 123; Domat. Pt. 1, B. 3, 76, $ 5); and charitable and scientific institutions occupied by them Montesquieu, alluding to it, observed that the “wickfor the purposes for which they were incorporated. It edness of mankind makes it necessary for the laws to did not appear that the lot of land in question was suppose them better than they are. Thus we judge occupied for the purposes for which the society was that every child conceived in wedlock is legitimate, incorporated. The most that could be said is that the the law having a confidence in the mother as if she society intended that it shall be so occupied at some was chastity itself." B. 6, ch. 17, Sp. of S. And time, but to all appearance, the time of such occupa- D’Aguesseau laid it down that “whilst the birth of tion was left wholly indefinite, and there was nothing children can be ascribed to a legitimate source, the law to prevent the society from changing its plans and will not suffer criminality." Greenleaf says that when alienating the property whenever it pleased. The ex- the husband and wife cohabit together as such, and do emption, instead of being absolute, is conditional; impotency is proved, the issue is conclusively presumed and at the date of the tax in controversy, the condi- to be legitimate, though the wife is proved to have tion had not been fulfilled. Boston Society of Re- been at the same timo guilty of infidelity. 1 Ev. $ 28. demptorist Fathers v. City of Boston. Opinion by The warrant of authority is in favor of qualifying this Ames, J.
statement, and instead of regarding the presumption as conclusive, to require it to apply with great force,
but subject to be overcome by admissible facts and MICHIGAN SUPREME COURT ABSTRACT.
circumstances of such cogency as to render belief OCTOBER, 1880.
necessary. Morris v. Davis, 5 Cl. & Finn. 163; Whar. ton's Ev., § 1298; Best's Ev. (Wood's ed.) 426;
Stephen's Ev., art. 98. In the case of Banbury PeerCRIMINAL CONVERSATION — ACTION FOR, NOT DE- age, the House of Lords dealt with the presumption, PENDENT ON WIFE'S CONSENT - EVIDENCE - HUSBAND and the degree of evidence necessary to overcome it, AND WIFE NOT COMPETENT TO PROVE WANT OF SEXUAL in this language: “In every case where a child is born INTERCOURSE - PRESUMPTION OF LEGITIMACY. - (1) in lawful wedlock, the husband not being separated The common law, in giving the action for criminal from his wife by a sentence of divorce, sexual interconversation, instead of making the husband's right course is presumed to have taken place between the of action depend on his wife's having consented to her husband and wife, until that presumption is encoundefilement, has invariably, whatever the truth might tered by such evidence as proves to the satisfaction of be, decisively assumed that she did not assent, but was those who are to decide the question that such sexual overcome by force; and the action has been sustained intercourse did not take place at any time when, by just the same whether as matter of fact her will con- such intercourse, the husband could, according to the curred or she was outraged by actual violence. Bac. laws of nature, be the father of such child." 1 Sim. & Ab. Mar. and Div. 551-553; 3 BI. Com. 139; 1 Chitty s. 155. And in Bury v. Philpot, the Master of the Pl. (7th Eng., 16th Am. ed.), 140, 188; Broom Com. Rolls ruled that when opportunity existed for sexual 847; 2 Hilliard on Torts, 592; Forsyth v. State, 6 Ohio intercourse within such period that the child in ques23. And there seems to be no basis in justice or policytion might have been begotten by the husband, mere for the position that if the personal wrong is accom- probabilities can havo no weight against the legal inpanied by circumstances of such atrocity as to elevate ference. 2 Myl. & K. 349; and see Kliner v. Ehlers, 38 it to the public offense of rape, the private remedy is Penn. St. 439; Dennison v. Page, 29 id. 426; Hargrare thereby either taken away or suspended. Cooley on v. Hargrave, 9 Beav. 552; Head v. Head, 1 Sim. & S. Torts, 86. It is not reasonable to convert the wife's 150; Patterson v. Gaines, 6 How. 550; Stigall v. Stigall, innocence into a shield to save her assailant from 2 Broch. 256; Sullivan v. Kelly, 3 Allen, 148; Phillips prosecution for his private wrong to her husband. v. Allen, 2 id. 453; Cross v. Cross, 3 Paige 139. Egbert Lord Holt recognized the principle that both remedies v. Greenwalt. Opiuiou by Graves, J. were admissible in a case of actual violence; and alluding to an attempt to carve out cause for a third TAXATION - COLLECTOR OF TAX NOT LIABLE FOR proceeding to be carried on in the bishop's court, he ENFORCEMENT OF TAX — WARRANT VALID ON ITS FACE. said: “If a man solicit a woman and go gently to work - If tax proceedings on their face are fatally defective. with her at first, and when he finds that will not do he a suit will lie to recover back money paid under them. proceeds to force, it is all one continued act, beginning Smith v. Nat. Bank, 17 Mich. 479; Grand Rapids v. with insinuation and ending with force. Rigant v. Blakeley, 40 id. 367; Wattles v. Lapeer, id. 624. But a Gallisard, 7 Mod. 78. (2) According to an ancient rulo tax assessment is in the nature of a judgment, and the of the common law the evidence of neither husband authorities are numerous that it cannot be assailed for nor wife will be received to disprove the fact of sexual fraud or irregularity in a suit against an officer wbo intercourse. Rex v. Rook, 1 Wils. 340. And Lord holds process fair on its face for enforcing a tax based Mansfield declares that it was founded in decency, upon it. Holden v. Easton, 8 Pick. 436; Lincoln v.
Worcester, 8 Cush. 55; Cheever v. Merritt, 5 Allen, 563; single when she executed a judgment bond, thereby Hubbard v. Garfield, 102 Mass. 72; Savacool obtaining the consideration therefor, was not estopped Boughton, 5 Wend. 171; Howell v. Tripp, 61 Me. 4:26; from setting up her coverture as a defense to a recovCunningham v. Mitchell, 67 Penn. St. 78; Greene v. ery on the bond. And where as in the present can Mumford, 4 R. I. 313; Glascon v. Rouze, 43 Me. 479; the purchaser kuow the woman to be married he was Erskine v. Hohnback, 14 Wend. 613; Bird v. Perkins, not deceived and had no reason to complain of her 33 Mich. 28. There are numerous decisions which ex- subsequent refusal to relieve him of the consequences of tend a like immunity to the assessing officer, and which his foolish couduct. Alexander v. Kew, 2 Drawle, 90; do not suffer bis assessment, when regular on its face, Cress v. Jack, 3 Watts, 238; Carr v. Wallace, 7 id. 394: to be impeached in a suit against him, and there are McAninch v. Loughlin, 1 Harris, 371; Hill v. Epply, 7 none which support an action at the suit of an indi. Casey, 333. Innis v. Templeton. Opinion by Mervidual exeept on the ground of fraud or malice. Moss v. Cummins. Opiniou by Cooley, J.
SET-OFF-IN ACTION BY HUSBAND AND WITE-DEBT
OWED BY ONE ONLY. In a suit on a promissory note PENNSYLVANIA SUPREME COURT AB- made by defendant below to plaintiffs below, who STRACT.
were husband and wife as joint payees; held that B.
could not interpose as a set-off a debt against one of OCTOBER, 1880.
the plaintiffs. As a general rule, set-off is admissible
only were it is in the same right and between the same ACTION-CONSTITUTIONAL PROVISION TO BE SUPPLE- parties. Milliken & Co. v. Garduer, 1 Wright, 456. To MENTED BY LEGISLATION. A constitutional provis- this rule there are some exceptions. Among them may ion that in cases of death resulting from injuries “ the be stated where suit is brought by a surviving partner right of action shall survive, and the general assembly a set-off against the late firm is allowable. So those shall prescribe for whose benefit such actions shall be sued jointly may set off a debt due by the plaintiff to prosecuted,” held not to give an administrator of one one of them. Chilbertson v. Harmony, 9 S. & R. 68. dying from injuries, a right of action in the absence of this may be done unless there be some superior equity legislative enactment upon the subject. The provis- in the third person. Stewart v. Coulter, 12 id. 252. ion of the Constitution coupled, as it is in the same But a defendant cannot set off a debt due bim by one sentence, with the direction that the Legislature shall of several plaintiffs. 1 Pars. Cont. 739; Henderson v. declare who shall exercise the right, would be conclu- Lervis, 9 S. & R. 379; Watson v. Hunsell, 7 Watts, 344; sive that the right itself is a limited one, to be put in Archer v. Dunn, 2 W. & S. 361; Norcross v. Benton, % force for certain persons to be prescribed only by Wright, 217. The fact that the defendants in error are the legislative body. Hence, the inference is not
husband and wife does not change the rule. She may warranted that the right of action is a general oue, to hold, use and enjoy her separate property to the excluexist independently of or without the appropriate leg- sion of her husband, and of all other persons. Bentz islation. In the case of Mann v. Weiand, 4 W. N. C.
v. Bentz. Opinion by Mercur, J. 6 the court held that the right of action for damages from death by negligence never existed in the deceased, that it was given to and first existed in the widow, and
FINANCIAL LAW. hence the defendant was a competent witness in his own behalf in an action against him by the widow. MORTGAGE ACCOMPANYING NEGOTIABLE NOTE NOT The same principle applies here. Brooks v. Burrough of LIABLE TO EQUITIES. - Where a negotiable note secured Danville. Opinion by Green, J.
by a mortgage is with the mortgage transferred in MARRIED WOMAN - DIVESTED OF TITLE TO REAL
Indiana to a bona fide purchaser for value without
notice, before maturity, he takes the mortgage free ESTATE ONLY IN STAUTORY MODE - ESTOPPEL. Where the statute provides the manner in which a married
from the equities between the parties. The court say
in 1 Jones on Mortgages, $ 11: “In equity a mortgage woman may divest herself of title to real estate she of land is regarded as a mere security for a debt or cannot divest herself in any other way; consequently obligation, which is considered as the principal thing, when she made an agreement to sell land she cannot and the mortgage only as the accessory. The legal by such acts as waiving a forfeiture or receiving pur- title vests in the mortgagee merely for the protection cbase-money estop herself from asserting her title
of his iuterest, and in order to give him the full benefit where the statutory provisions have not been com
of the security; but for other purposes the mortgage is plied with. Hepsel v. Gefser, 2 Grant, 84; Rumfet v.
a mere security for the debt." This rule, as to the Clemens, 10 Wright, 455; Gliddon v. Stempler, 2 P. F.
essential qualities of a mortgage, has been fully recogSmith, 400; Dunbam v. Wright, 3 id. 167; Graham v. Long, 15 id. 383; Brown v. Bennet, 25 id. 420. The 32 Ind. 497. With us the debt secured is the principal
nized and accepted in this State. Fletcher v. Holmes, fact that she may have a part or the whole of the pur-thing and the mortgage is but the incident. Samples chase-money in consideration of her agreement, or
v. Rowe, 24 Iud. 208; Garrett v. Pickett, 15 id. 485. induced the purchaser to make valuable improvements thereon, is insufficient to pass her title to real estate
It follows that in this State the indorsee of a negotiable where the form of transfer prescribed by the statute charged from all the equities to which the note may
note, secured by mortgage, takes the mortgage dishas not been observed. To hold otherwise would
have been subject in the hands of the payee, to the operate as a repeal of the statute which designates the
same extent as the note itself is discharged from such only mode in which a married woman can convey her
equities. In that respect the indorsee takes the mortreal estate. Thorndale v. Morson, 1 Casey, 326: Rich
gage as he takes the note. Carpenter v. Lougan, 16 ards v. McClelland, 5 id. 385; Pellet v. Fritz's Execu
Wall. (U. S.) 271; Logan v. Smith, 62 Mo. 455. Indiana tors, 9 id. 118. The doctrine of estoppel cannot be Sup. Ct., May 25, 1880. Gabbert v. Schwartz. Opinion invoked to enforce an agreement for the sale of her
by Niblack, J. land when her agreement was otherwise void. Legal incapacity cannot be removed, even by fraudulent rep- NEGOTIABLE INSTRUMENT - UNREASONABLE DELAY resentation, so as to create an estoppel in the act to TO PRESENT BILL DISCHARGES DRAWER.-Unreasonable which the incapacity relates. Hence it was held in delay of a payee of a draft to present it to the drawer, Keen v. Coleman, 3 Wright, 299, that a married woman or to notify the drawer of its non-acceptance or nonwho falsely and fraudulently represented that she was | payment, or to return it to him as refused by the