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the order was irregularly made, or for leave to purge himself of the contempt and be let in again to make his defense. Brinkley v. Brinkley, supra. The order should be affirmed.
TO 1PN - M UST CONSIST OF CONTIO UO US TERRITORY.
WISCONSIN SUPREME COURT, SEPT. 21, 1880.
Chicago And Northwestern Railway Co. V. Town Op Oconto.
The word "town," as used In the Constitution of the State of Wisconsin, denotes a civil division composed of contUrunug territory and under the power granted to county boards by the statute, "to set off, organize, vacate, and change the boundaries of tho towns in their respective counties " (R. 8., 8 670. subd. 1). such a board cannot make a va'id order changing the boundaries of a town so that it shall consist of two separate and detached tracts of land.
APPEAL from Circuit Court, Ocouto county. The
Orton, J. This suit is brought to recover from the town of Oconto, the defendant, certain moneys paid under protest for taxes claimed to havo been illegally assessed upon the plaintiff's lands, situated in towns 35, 36, and 37, range 10, in Oconto county, by the said towns, for the year 1878. Two grounds of recovery were relied upon at the trial — first, that the assessment was improperly made; and second, that these lands were not subject to assessment and taxation by and in the town of Oconto. Tho latter ground, being the more important, and if well taken, fatal to the legality of the assessment, will alone be considered. To sustain this objection to the assessment, it is claimed that the several orders of the board of supervisors of the county of Ocouto, attaching these lands to and making them a part of the town of Ooonto, are void, because they are left by such orders in a body of lands separated and detached, and not contiguous to tho main body of lands in said town, in violation of the Constitution, which, it is claimed, requires towns to be composed and constituted of contiguous territory only.
There was Borne question on the argument whether the orders of tho board of supervisors of Oconto county, organizing and changing; the boundaries of the town of Oconto, in fact left these bodies of land so detached, but by on inspection of the orders it is apparent that they are so detached. The order of the board of November 15, 1876, it is conceded, made the town consist of two detached bodies of lands, in the smaller body of which the lands of the appellant in question were situated, and the two bodies separated by the distance of nearly 20 miles of intermediate territory. By the order of March 25, 1877, certain lauds, a part of, and contiguous to, the larger body, and in the direction of tho lands in question, were detached from the town of Ocouto, and added to and made a part of the towns of Peshtigo and Marinette. By the order of January 12, 1878, certain lands lying contiguous to the lands so detached were added to and made a part of tho town of Oconto, but this order failed to embrace the lands so detached, and they were still left iu those two other towns. These orders, then, taken together, still leave the two bodies detached, but not by so great a distance. It was unquestionably intended by tho last order to cure this defect in the first one, and connect the two bodies together; but by this omission the town still remains subject to the objec
tion of consisting of two detached bodies of territory, the same as by the first order.
We shall not follow the very able arguments of tho learned couusel of the appellant, urging many and weighty reasons of public policy, why, if possible, tho Constitution should be so construed as to require a town to be composed only of contiguous territory, and reasons based upon the Constitutional rule of uniformity of town government and of taxation. We shall pass directly, ant* oonflne ourselves striotly, to tho consideration of tho true meaning and proper construction of the term "town," as used In the Constitution, with reference only to the defect in the organization, or in the changing of the boundaries of the town of Oconto, here urged, as making the orders" of the board of supervisors void. There are few, if there are any, decisions of courts having a bearing upon this question, directly or indirectly, and it must therefore be treated as an original oue, and determined somewhat arbitrarily. The word " town," philologically considered, is a change in the orthography and pronunciation of the Anglo-Saxon word " tun," from the verb "tyan," meaning to "inclose," and "tun," therefore, means an incloaure. It was used to denote a garden inclosed by a hedge, or a collection of houses inclosed by a wall. Zell's Popular Encyclopedia, and Johnson's New Universal Encyclopedia.
Its general and customary usage in England, as denoting a collection of houses or hamlets between a village or city, or its stricter legal or civil meaning, as denoting a civil corporation of larger territory, which might include a village or city, is somewhat foreign to the use of the word, and the civil and territorial subdivision or organization which it is used to signify in this country. Its first use In this country was to define the original or primary civil or governmental organizations of the early colonists of Now England, who knew by bitter experience the oppressive tyranny of imperial law, and wh*o desired, above all things, to be governed not only by laws made by themselves in primary assembly, but having a limited and local application to their wants in small and independent communities. They were considered and adopted by those alone who knew their fitness and adaptation to their wants, and they received the general assent. This attachment to local law and local government, which then prevailed and still prevails iu this country, was the producing cause of the organization of the towns of the Now England colonies, which had exclusive control of their local affairs. Each town had clearly-defined territorial limits or boundary, so restricted as to fully secure to each citizen the advantages of a local or home government, and not so extended as to defeat or lessen them.
The nature and uses of this form of local government are fully expressed by one of the earliest arts of the Massachusetts colony, In general court in 1630, viz.: "Inasmuch as particular towns have many things which concern only themselves and the ordering of their own affairs, and disposing of their own towns, it is ordered that the freemen of every town, or the major part of them, shall only have power to dispose of their own lands aud woods, with all the privileges and appurtenances, not repugnant to tho laws and orders of the general court." Local Law of Mass. and Conn, by Fowler, 10-20. It can be seen that in the very nature and uses of such a local government the town must be — First, of limited territorial extent; second, of compact and contiguous territory; third, its boundary must be clearly defined and continuous; and fourth, it should embrace within its government only those having a unity or similarity of interests. In New England, towns having been the first local civil governments, and autecedout to the formation of counties, the counties were made by a consolidation of its towns. Iu the western States, however, when au organic law ta flrat made for the government of the whole territory, or a constitution is formed for the whole State, counties are formed first, and towns within them afterward; but tho same original idea and meaning of the town remain tho same, and that is, "a subdivision of a county," as defined in Johnson's New Universal Encyclopedia, and " subdivision of a county, as a pariah is part of a subdivision of a diocese." "In popular usage, iu America, the whole territory within certain limits." Imperial Dictionary.
Webster defines town as "an enclosure;" "the whole territory within certain limits; " and the word "parish" as " a district of certain limits, which cannot bo altered without legal enactment; " and the word "district" as "a defined portion of the State."
In Abbott's Law Dictionary it is defined, "a walled place or borough." Finch, 80. "Townships are incorporated, not as cities and villages are, for their own benefit, and by their assent, but like counties, as mere civil divisions of the State." Waltham v. Kemper, 55 111. 340. "The several towns of this Stale are corporations for certain very limited purposes: * * for the conservation of highways, * * relief of the poor, * * the assessment and collection of taxes, etc. The several towns are political divisions, organized for the convenient exercise of portions of the political power of the State." Lorillard v. Town of Monroe, II N. Y. 392. All of these terms defining "town" are strangely expressive of compactness, adjaceucy, and contiguity, such as "enclosure," "whole territory within certain limits," "defined portion of the State," and "a subdivision of a county." A town, in its name and uses, conveys the very idea of locality, vicinity, vicinage and convenience. A town is a subdivision iu the singular; not subdivisions, or many subdivisions, iu tho plural. Aside from these definitions, all of which appear to bo conclusivo of the question, there is much force in the general and almost invariable usage, iu this country at least, in the organization of towns and counties, as in precincts, districts, cities, and villages, in forming them of adjacent and contiguous territory. If there had been many instances, and I might say any, of the organization of a town constituted of separate, detached, and remote bodies of territory, the evils would havo been so manifest and numerous that cases of complaint would havo found their way into the courts and reports, but by considerable searching I havo been unable to find a single case directly involving this question.
To so construe the constitution as to authorize the board of supervisors of a county to organize or change the boundaries of a town so that it would be composed of separate, detached, and non-contiguous territory, would most unquestionably restrict the sovereign power of the legislature in tho organization of assembly districts "consisting of contiguous territory, and bounded by county, precinct, town or ward lines." Article 4, § 4, Const. The term precinct, as used iu this section, has reference only to certain districts having similar functions to those of towns, as iu Grant county, and perhaps other places in territorial times, and which passed away upon the formation of the first legislative districts, after the admission of the State, and tho term is no longer used except, perhaps, occasionally, interchangeably with election districts. By section 5 of the same article, senate districts are required to be of alike "convenient contiguous territory," and the power of the legislature would be restricted in their formation if the territory of towns need not be contiguous. Supported by these authorities, as well as most obvious and numerous reasons of publio policy, praotical convenience, and respecting the publio welfare, we decide that a town must consist of contiguous territory, and that the orders of the board of supervisors of Oconto county are void and of Do effect; and that the assessment complained of is
also void, nnd tho taxes so paid by the appellant under protest are illegal and void and may be recovered in this action.
The judgment of the Circuit Court is reversed, and the cause remanded for a new trial.
SUNDAY LAWS AFFECTING ONE CLASS ONLY INVALID.
CALIFORNIA SUPREME COURT, AUGUST 30, M80.
Ex Parte Westerfikld.
A statute making It a misdemeanor for those engaged tn tho business of baking to bake or to permit their em ployees to do so, for the purpose of Bale, on Sunday; held unconstitutional under a provision forbidding the legislature to pass special laws for the punishment cf crimes and misdemeanors.
PETITION for writ of habeas corpus. The facts ap-
Myrick, J. The petition is in the custody of tho Chief of the Police of the city and county of San Francisco, under a warrant charging a misdemeanor under an act entitled "An act to regulate and provide for a day of rest iu certain coses," approved April 16, 1880.
The act provides that " it shall be unlawful for any person engaged in the business of baking to engage, or permit others in his employ to engage, in the labor of baking for tho purpose of sale between the hours of 6 o'clock P. M. on Saturday and 0 o'clock P. M. on Sunday, except iu the setting of sponge preparatory to tho night's work; provided, however, that restaurants, hotels and boarding-houses may do such baking as is necessary for their own consumption; " and a violation of tho act is made a misdemeanor, punishable by lint) and imprisonment, or both.
This act is in conflict with section 25, article IV, of the Constitution, and is therefore void.
"Section 25. The Legislature shall not pass locator special laws in auy of the following enumerated cases— that is to say: * * * Second. For the punishment of crimes and misdemeanors."
The act purports, according to its title, to be an act to provide for a day of rest. Instead of pursuing that intent, it goes on to say that certain acts, viz., the labor of baking for the purpose of sale, if performed by certain persons, viz., persons "engaged in the business of baking for the purpose of sale," shall constitute n crime, and shall be punished. The employees are not to be punished. This is special legislation. A certain class is selected. As well might it havo said, if master carpenters or blacksmiths, or if attorneys having clerks, shall labor or permit employees to labor. they shall bo deemed guilty of misdemeanor and be punished; carpenters or blacksmiths not master workmen, or attorneys without clerks, may labor at their will. Tho baking of bread is in itself lawful and necessary. Even if there be authority to restrain the labor on some one day, it must be, if at all, under a general law restraining labor on that day.
Let the petitioner be discharged.
Mcktnstrv, J. I concur. I entertain no doubt that the invalidity of the statute under which the defendant was arrested moy be determined upon habeas corpus.
"Sunday laws " have beeu held not to be violative of a provision of a constitution, that " the free exercise and enjoyment of religious profession and worship. without discrimination or preference, shall forever be allowed iu this State." Ex parte Andrews, 18 CaL 678. Such laws have been sustained as simply requiring a periodical cessation from labor — the power to pass them resting upon the right of the Legislature to pass laws for the preservation of health and the promotion of good morals. I do not deem it necessary, in this place, to assent to the proposition, that a law which euforces, under penalty of fine and imprisonment, a cessation from labor upon Sunday by one whose religious belief has imposed upon him the duty of taking his rest on Saturday, in no degree discriminates against his "religious profession." But admitting the constitutionality of general laws prohibiting all labor on Sunday, or upon any other day, 1 think the act of April 16, 1880, is a" special law," within the meaning of those terms as employed in section 25, article IV, of the present Constitution. The act does not declare the business of "baking," as ordinarily conducted, to bo a nuisance; nor does it contain any intimation that the business of baking may tend to interrupt divine worship by any class of sectaries, or can otherwise interfere with the rights or privileges of any citizen. The baking of bread is not only lawful and necessary, but we will take notice that there is nothing so peculiar in the occupation as that those engaged in it require—as a sanitary measure or for the protection of their morals—a period of rest not required by those engaged in many other employments.
A general law must include within its sanction all who come within its purpose and scope. It must be as broad as its object. If it is to be made a crime not to refrain from labor during the whole or durlug any portion of any given day of the week, it must be made equally a crime as to all persons who do not so refrain; or the prohibitory law must be made applicable to all of a class, the members of which for reasons apparent upon mention of the class, may at least require, for the benefit of their health or morals, a period of rest not beneficial to any other class or individual. We might perhaps take notice that there are controlling reasons why clergymen should not be prohibited from pursuing their pious labors on the Christian Sabbath, and that a law might still be general which included all others, although it excluded them. So we might perhaps hold that there are other special classes who might be permitted to pursue their avocations, notwithstanding a law which prohibited labor by the rest of the community, because of the fact that their peculiar pursuits involved "works of necessity," and placed them beyond the benefits of the law which would compel an enforced cessation of labor by others. But there can be no rule which will permit the prohibition of a particular kind of labor in itself innocent and beneficial to the public. There is no reason, and can be no reason, why bakers should be foroedto rest from their labors periodically, which is not applicable to many other classes of artisans and workmen. To say that every law is "general" within the meaning of the Constitution, which bears equally upon all to whom it is applicable, is to say that there can be no special laws.
MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.
JULY AND SEPTEMBER, 1880.
INSURANCE — FIRE POLICY — INSURANCE OF GOODS SOLD BUT NOT DELIVERED—INSURANCE FOR AN
Othek's Benefit.—Defendants, who were commission merchants, effected insurance in their own name to the amount of 1165,000, upon merchandise contained in their warehouse in Boston. It was described in the policies of insurance as "merchandise, principally hidec and leather, their own, or held by them in trust, or ou commission, or sold, but not removed from the
building." The warehouse with Its contents was totally destroyed by Are in November, 1872. At the time of the loss, it contained goods belonging to the defendants and goods consigned to them for sale amounting in value to $174,073, and goods sold but not removed of the value of $30,551. Among the goods sold, but not removed, were certain goods of tho plaintiffs, which they had. purchased of the defendants. The insurers settled as for a total loss for $1G5,000. Some of the insurance companies became insolvent so that defendants received but sixty-three per cent of this amount, which was not enough to pay the value of the goods owned by and consigned to defendants. It appeared that if the goods sold and not removed were not included in the adjustment of loss, there would have been no difference in the amount allowed for insurance. Defendants were bound by contract to insure all their consignments, and had applied the sum received to indemnify themselves and their consignors, and no portion of it was applied for the benefit of plaintiffs. It was usual for those engaged in this business to take insurance on goods sold and not delivered or removed, but there was no custom to insure for the benefit of purchasers; and.there was no contract, to insure for the plaintiffs' benefit the goods thus purchased by them. Plaintiffs brought this action to recover an aliquot portion of the insurance moneys secured to apply on their goods lost. Held, that they were not entitled to recover on tho ground that it was the duty of the defendants to insure their goods not removed from tho warehouse, nor could they on the ground that the defendants, having voluntarily insured the plaintiffs' goods, and received from the insurers money on account of the same, are bound in equity to pay it over. Tho defendants received no money ou account of the goods of the. plaintiffs. The money that they received was not sufficient to pay for their own goods and those of their consignors destroyed by the fire; and there was no equity, as between them and the plaintiffs, which required them to pay over to the plaintiffs any portion of tho money so received. And even if plaintiffs' goods were included in the statement of loss, that could not of itself give any rights to the plaintiffs which they did not otherwise possess. The defendants were under no obligations to include these goods in their statement of loss. If they had been omitted from the statement, the defendants would have been entitled to receive the same amount; and they did not actually receive any more because tbey were included. Martiueau v. Kitching, L. R. 7Q. B. 436; Stilwell v. Staples, 19N. Y. 401. Reitenbach. v. Johnson. Opinion by Eudicott, J.
Merger—Ofmortgage Securing Note. — Defendant made his note payable to the order of plaintiff and secured the same by mortgage upon certain premises owned by him. These premises defendant conveyed to W., who assumed the .mortgage. W. conveyed tho premises to plaintiff, subject to the mortgage, which was reoited to form part of the consideration. Plaintiff afterwards conveyed the premises to D. and brought this actiou on the note. Held, that there was a merger of the mortgage, and defendant was not liable ou tho note. Dickerson v. Williams. Opinion by Ames, J.
Taxation — Of Lands Held By Religious CorpoRation.— Plaintiffs, a religious incorporated society,^ purohased by oue deed a tract of land through which was a well-defined right of way. On the east of the way were buildings occupied for the purposes of the society. Ou the west side of the way there was no building, but it was intended by the society to construct a building to be used for school purposes On this land, which was suited for cultivation, there had been vegetables raised, part of which were used by the sooiety for its own purposes and the remainder giveu away to the poor. The society leased no part of the land and derived no profit from it. Held, that the land upon the west side of the way was not exempt from taxation under a statute exempting houses of religious worship from taxation. Under that statute it has been decided that the land on which such houses stand is included in the exemption. Trinity Church v. Boston, 118 Mass. 104. Real estate held by a religious society, not more than sufficient in extent to meet its reasonable requirements in this respect, and devoted by such society in good faith to the erection of a church edifice, is entitled to the exemption given by the statute. But it is the appropriation of the property to the sacred uses contemplated which seoures this privilege. The lot of land on the west side of the way was not so appropriated. No ohurch edifice had been erected upon it; and it did not appear that any such edifice was intended to be ereoted upon it. Held, also, that it was not exempt under a provision exempting real estate of literary, benevolent, charitable and scientific institutions occupied by them for the purposes for which they were incorporated. It did not appear that the lot of laud in question was occupied for the purposes for which the society was incorporated. The most that could be said is that the society intended that it shall be so occupied at some timo, but to all appearance, the time of such occupation was left wholly indefinite, and there was nothing to prevent the society from changing its plans and alienating the property whenever it pleased. The exemption, instead of being absolute, is conditional; and at the date of the tax in controversy, the condition had not been fulfilled. Boston Society of Redcmptorist Fathers v. City of Boston. Opinion by Ames, J.
MICHIGAN SUPREME COURT ABSTRACT. OCTOBER, 1880.
Criminal Conversation — Action For, Not DePendent ON WIFE'S CONSENT— EVIDENCE — HUSBAND AND WIFE NOT COMPETENT TO PROVE WANT OF SEXUAL INTERCOURSE — PRESUMPTION OF LEGITIMACY. — (1) The common law, in giving the action for criminal conversation, instead of making the husband's right of action depend on his wife's having consented to her defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent, but was overcome by force; and tho action has been sustained just the same whether as matter of fact her will concurred or she was outraged by actual violence. Bac. Ab. Mar. and Div. 551-553; 3 Bl. Cora. 139; 1 Chitty PI. (7th Eug., lGth Am. ed.), 140, 188; Broom Com. 847; 2 Hilliard on Torts, 592; Forsyth v. State, 6 Ohio 23. And there seems to be no basis in justice or policy for the position that if the personal wrong is accompanied by circumstances of such atrooity as to elevate it to the public offense of rape, the private remedy is thereby either taken away or suspended. Cooley on Torts, 80. It is not reasonable to couvert the wife's innocence into a shield to save her assailant from prosecution for his private wrong to her husband. Lord Holt recognized the principle that both remedies were admissible in a case of actual violence; and alluding to an attempt to carve out cause for a third proceeding to be carried on in the bishop's court, he said . "If a man solicit a woman and go gently to work with her at first, and when he finds that will not do he proceeds to force, it is all one continued act, beginning with insinuation and ending with force. Rigant v. Gallisard, 7 Mod. 78. (2) According to an ancient rulo of the common law the evidence of neither husband nor wife will be received to disprove the fact of sexual Intercourse. Rex v. Rook, 1 Wils. 340. And Lord Mansfield declares that it was founded in decency,
morality and policy (Goodnight v. Moss, Cowper, 591), and no judge or author has ever dissented from his strong approval. And changes in the statute have left this rule of the common law untouched. Tioga County v. South Creek Towuship, 75 Peun. St. 436; Boykin v. Boykin, 70 N. C. 202; Chamberlain v. People, 23 N. Y. 88; People v. Overseers of Ontario, 15 Barb. 286; Hemmingway v. Towner. 1 Allen, 209; Parsons v. People, 21 Mich. 609. (3) Where there was no proof of inability or of the oertaiu want of opportunity for intercourse, and a child was born eight months after an alleged criminal conversation, held, that the testimony of the husband and wife that they had had no intercourse would not overcome the presumption of legitimacy of the child. It was a maxim of the Roman law, and which the oommou law copied, that the presumption is always hi favor of legitimacy (Co. Liu. 120m), and that he is the father whom the marriage indicates (Co. Litt. 123; Domat. Pt. 1, B. 3, 76, § 5); and Montesquieu, alluding to it, observed that the "wickedness of mankind makes it necessary for the laws to suppose them better than they are. Thus we judge that every child conceived iii wedlock is legitimate, the law having a confidence in the mother as if she was chastity itself." B. 6, ch. 17, Sp. of S. And D'Aguesseau laid it down that "whilst the birth of children can be ascribed to a legitimate source, the law will not suffer criminality." Greenleaf says that when tho husband and wife cohabit together as such, and no im potency is proved, tho issue is conclusively presumed to be legitimate, though the wife is proved to have been at the same timo guilty of infidelity. 1 Ev. S 28. The warrant of authority is in favor of qualifying this 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 circumstances of such cogency as to render belief necessary. Morris v. DaviB, 5 CI. & Finn. 163; Wharton's Ev., § 1298; Best's Ev. (Wood's ed.) 426; Stephen's Ev., art. 98. In the case of Banbury Peerage, the House of Lords dealt with the presumption, and the degree of evidence necessary to overcome it, in this lauguage: "In every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife, until that presumption is encountered by such evidence as proves to the satisfaction of those who are to decide the question that such sexual intercourse did not take place at any time when, by such intercourse, the husband could, according to the laws of nature, be the father of such child." 1 Sim. & S. 155. And in Bury v. Philpot, the Master of the Rolls ruled that when opportunity existed for sexual intercourse within such period that the child in question might have been begotten by the husband, mere probabilities can havo no weight against the legal inference. 2 Myl. & K. 349; and see Kliuer v. Ehlers, 38 Peun. St. 439; Dennisonv. Page, 29 id. 428; Hargrave v. Hargrave, 9 Beav. 552: Head v. Head, 1 Sim. & S. 150; Patterson v. Gaines, 6 How. 550; Stigall v. Stigall, 2Broch. 256; Sullivan v. Kelly, 3 Allen, 148; Phillips v. Allen, 2 id. 453; Cross v. Cross, 3 Paige 139. Egbert v. Qreenwalt. Opinion by Graves, J.
Taxation —Collector Of Tax Not Liable For Enforcement Of Tax —Warrant Valid On Its Face. — If tax proceedings on their face are fatally defective, a suit will lie to recover back money paid under them. Smith v. Nat. Bank, 17 Mich. 479; Grand Rapids v. Blakeley, 40 id. 307; Wattles v. Lapeer, id. 624. But a tax assessment is in tho nature of a judgment, and the authorities are numerous that it cannot be assailed for fraud or irregularity in a suit against an officer who holds process fair on its face for enforcing a tax based upon it. Holden v. Easton, 8 Pick. 136; Lincoln v. "Worcester, 8 Cush. 55; Cheever v. Merritt, 5 Allen, 563; Hubbard v. Gnrfleld, 102 Mass. i2; Savacool 7. Boughtou, 5 Weud. 171; Howell v. Tripp, 61 Me. 426; Cunningham v. Mitchell, 67 Penn. St. 78; Greene v. Mumford. 4 R. I. 313; Glascon v. Rouze, 43 Me. 479; Erskine v. Hohnback, 14 Weud. 613; Bird v. Perkins, 33 Mich. 28. There are numerous decisions which extend a like immunity to the assessing officer, and which do not suffer his assessment, when regular on its face, to be impeached in a suit against him, and there are uonc which support an action at the suit of an individual exeept on the ground of fraud or malice. Moss v. Cummins. Opinion by Cooley, J.
PENNSYLVANIA SUPREME COURT ABSTRACT.
Action—Constitution Al Provision To Be SuppleMented BY Legislation. A constitutional provision that in oases of death resulting from injuries " the right of action shall survive, and the general assembly shall prescribe for whose benefit such actions shall be prosecuted," held not to give an administrator of one dying from injuries, a right of action in thu abscnoe of legislative enactment upon the subject. The provision of the Constitution coupled, as it is in the same sentence, with the direction that the Legislature shall declare who shall exercise the right, would be conclusive that the right itself is a limited one, to bo put in force for certaiu persons to be prescribed only by the legislative body. Hence, the inference is not warranted that the right of action is a general one, to exist independently of or without the appropriate legislation. In the case of Maun v. Weiaud, 4 W. N. C. 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, aud heuce the defendant was a competent witness in his own behalf in an action against him by the widow. The same principle applies here. Brooks v. Burrough of Danville. Opinion by Green, J.
Married Woman — Divested Op Title To Real Estate Only In Stautory Mode — Estoppel. Where the statute provides the manner in which a married woman may divest herself of title to real estate ehe cannot divest herself in any other way; consequently when she made an agreement to sell land she cannot by such acts as waiving a forfeiture or receiving purchase-money estop herself from asserting her title where the statutory provisions have not been complied with. Hep8el v. Gefser, 2 Grant, 84; Rumfet v. Clemens, 10 Wright, 455; Gliddon v. Stempler, 2 P. P. Smith, 400; Dunham v. Wright, 3 id. 167; Graham v. Long, 15 id. 383; Brown v. Benuet, 25 id. 420. The fact that she may have a part or the whole of the purchase-money in consideration of her agreement, or induced the purchaser to make valuable improvements thereon, is insufficient to pass her title to real estate where the form of transfer prescribed by the statute has not been observed. To hold otherwise would operate as a repeal of the statute which designates the only mode in which a married woman can convey her real estate. Thorndale v. Morson, 1 Casey, 326; Richards v. McClelland, 5 id. 385; Pellet v. Fritz's Executors, 9 id. 118. The doctrine of estoppel cannot be Invoked to enforce an agreement for the sale of her land when her agreement was otherwise void. Legal incapacity cannot be removed, even by fraudulent representation, so as to create an estoppel In the act to which the incapacity relates. Heuce it was held in Keen v. Coleman, 3 Wright, 299, that a married woman who falsely and fraudulently represented that she was
single when she executed a judgment bond, thereby obtaining the consideration therefor, was not estopped from setting up her coverture as a defense to a recovery on the (mud. And where as in the present oan the purchaser know the woman to be married he was not deceived and had no reason to complain of her subsequent refusal to relieve him of the consequenoes of his foolish conduct. Alexander v. Kew, 2 Drawle, 90; Cress v. Jack. 3 Watts, 238: Carr v. Wallace, 7 id. 394: McAninch v. Loughliu, 1 Harris, 371; Hill v. Epply, 7 Casey, 333. Innis v. Templeton. Opinion by Mercur, J.
Set-ofp—In Action By Husband And Wipe—Debt Owed By One Only. In a suit on a promissory note made by defendant below to plaintiffs below, who were husband and wife as joint payees; held that B. could not interpose as a set-off a debt against one of the plaintiffs. Asa general rule, set-off is admissible only were it is in the same right and between the same parties. Milliken & Co. v. Gardner, 1 Wright, 456. To this rule there are some exceptions. Among them may be stated where suit is brought by a surviving partner a set-off against the late firm is allowable. So those sued jointly may set off a debt due by the plaintiff to one of them. Chilbertson v. Harmony, 9 S. & R. 68. This may be done unless there be some superior equity in the third person. Stewart v. Coulter, 12 id. 252. But a defendant cannot set off n debt due him by one of several plaintiffs. 1 Pars. Cont. 739; Henderson v. Lervis, 9 S. & R. 379; Watson v. Hunsell, 7 Watts, 344; Archer v. Dunn, 2 W. & S. 361; Norcroas v. Benton, 2 Wright, 217. The fact that the defendants in error are husband and wife does not change the rule. She may hold, use and enjoy her separate property to tho exclusion of her husband, and of all other persons. Bentz v. Bentz. Opiuiou by Merour, J.
Mortgage Accompanying Negotiable Note Not Liable To Equities.—Where a negotiable note secured by a mortgage is with the mortgage transferred in Indiana to a bona fide purchaser for value without notice, beforo maturity, he takes the mortgage free from the equities between the parties. The court say in 1 Jones on Mortgages, § 11: "In equity a mortgage of land is regarded as a mere security for a debt or obligation, which is considered as the principal thing, and the mortgage only as the accessory. The legal title vests in the mortgagee merely for the protection of his interest, and in order to give him the full benefit of the security; but for other purposes the mortgage is a mere security for the debt." This rule, as to the essential qualities of a mortgage, ha9 been fully reoognized and accepted in this State. Fletcher v. Holmes, 32 Ind. 497. With us the debt secured is the principal thing and the mortgage is but the incident. Samples v. Rowe, 24 Ind. 208; Garrett v. Pickett. 15 id. 485. It follows that in this State the indorsee of a negotiable note, Becured by mortgage, takes the mortgage discharged from all the equities to which the note may have been subject in tho hands of the payee, to the same extent as the note itself is discharged from such equities. In that respect the indorsee takes the mortgage as he takes the note. Carpenter v. Lougan, 16 Wall. (LT. S.) 271; Logan v. Smith, 62 Mo. 455. Indiana Sup. Ct., May 25, 1880. Oabbert v. Schuiurtz. Opiuiou by Niblock, J.
Negotiable Instrument — Unreasonable Delay To Present Bill Discharges Drawer.—Unreasonable delay of a payee of a draft to present it to the drawer, or to notify the drawer of its non-acoeptance or nonpayment, or to return it to him as refused by the