« ForrigeFortsett »
Reversionary interest of wife in personal pro- | Patent-plea non concessib, 373.
Corporation, indictment of for misfeasance, 410.
of the parties concerned, 411.
Obtaining goods by forged order, ib.
Martel's case, 209.
Mr. STEWART-Extract from his speech in the
case of Lester v. Smith, 348.
| U.S. CIRCUIT COURT
the Southern District of New York on motions
for injunctions, 228.
NEW YORK, JANUARY;:1846. [Monthly Part. CONTRACTS OF INFANTS.
fendant's orders conducted the funeral of her
husband, and that the husband had left no That an infant is liable upon his contract, property to be administered. Upon this arose where the supply of necessaries is the object the question, was the infant widow bound by of the agreement, is a proposition so well es- her contract for the funeral expenses of her tablished that it would be mere pedantry to husband ? After time taken to consider, the cite authorities in its support. It is obvious, judgment of the court weis delivered by Altoo, that such things as relate immediately to derson, B., and the process. of reasoning by the person of the infant, as meat, drink, ap- which the court came to the corclision, that parel, lodgings, and medicine, are necessaries by analogy with and inferentially from the for which he may be liable. And, likewise, authorities already stated, the defendant was authorities are not wanting to show that, as liable on her contract, can only be understood the proper cultivation of the mind is as ex- by an extract from the judgment itself. “This pedient as the support of the body, instruc- is the case of an infant widow, and the burial tion in art or trade, or intellectual, moral, or that of her husband, who has left no property religious information, may also be a necessary. to be administered. Now the law permits an So again attendance may be a necessary; and infant to make a valid contract of marriage, upon this principle in Hand v. Slaney, 8 T. and all necessaries furnished to those with R. 578, necessaries for the livery servant of whom he becomes one person by or through an officer in the army were held to be neces- the contract of marriage, are, in point of law, saries for him. In all these instances it is to necessaries to the infant himself. Thus a be observed there is a manifest direct personal contract for necessaries to an infant's wife and advantage from the contract derived to the lawful children is used by Lord Bacon as one infant himself. But the cases have gone fur- of the illustrations of the maxim, persona ther. In Turner v. Frisley, 1 Str. 168, it conjuncta æquiparatur interesse propria.'”. was ruled by Pratt, C. J., that “necessaries The learned baron, after citing the passage for an infant's wife are necessaries for him." from Bacon's Law Maxims already given, and The grounds of this decision are not given in laying down the rule that decent Christian the report of the case. In Bacon's Law Max- burial may be classed as a personal advanims, 67, (edit. 1639), the author, in illustrating tage, and reasonably necessary to a man, thus the maximpersona conjuncta æquiparatur continues: “If then this be so, the decent interesse propria," says “so if a man, under Christian burial of his wife and lawful chilthe years of twenty-one, contracts for the dren, who are the persona conjuncta with nursing of his lawful child, this contract is him, is also a personal advantage, and reasongood, and shall not be avoided by infancy no ably necessary to him; and then the rule of more than if he had contracted for his own law applies, that he may make a binding conailinents or erudition."
tract for it. This seems to us to be a proper This brief statement of the different classes and legitimate consequence, from the propoof necessaries will suffice to introduce the sition that the law allows an infant to make case of Chapple v. Cooper, 13 M. & W. 252, a valid contract of marriage. If this be corin which an entirely new question, with re-rect, then an infant husband or parent may ference to the liability of an infant, came be-contract for the burial of his wife or lawful fore the Court of Exchequer. The declara- children ; and then the question arises, whethition was in the ordinary form for work, labor, er an infant widow is in a similar situation ? and materials. To this the defendant plead- It may be said that she is not, because during ed infancy, and the replication stated that the the coverture she is incapable of contracting. goods were necessaries. It appeared that the and after the death of the husband the relaplaintiff, being an undertaker, had by the de- tion of marriage has ceased. But we think Practical Points.--Copyright in Foreigners—Tenant for Life. this is not so. In the case of the husband, the contract will be made after the death of the wife ...
Practical Points. or child; and so after the relation which gives ; validity to the contract is at an end for some purp.. COPYRIGHT IN FOREIGNERS. poses. But if the husband can contract for this, it is because a contract for the burial of those It appears by a decision in the English who are persona conjuncta with him by reason courts, that an alien, resident abroad, who of the marriage, is as a contract for leis own per- coinposes a work abroad, but publishes it first sonal benefit, and if that be so, we do not see in England, is entitled to the full benefit of why the contract for the burial should not be the such copyright. In the case of Bentley v. same as a contract by the widow for her own Foster, 10 Sim. 329, the question came bepersonal benefit. Her coverture is at an end, fore the Vice Chancellor of England, who and so she may contract, and her infancy for thus expressed himself:the above reasons: is..no defence, if her con- ! “In my opinion protection is given by the tract be for her own personal benefit. It may law of copyright to a work first published in be observed, that, as the ground of our dé- this country, whether it was written abroad cision arises out of the infant's previous con- by a foreigner or not; if an alien friend tract of mariage, it will not follow from it writes a book, whether abroad or in this that an fant child or more distant relation country, and gives the British public the adwould be responsible upon a contract for the vantage of his industry and knowledge, by burial of his parent or relative."
| first publishing the work here, he is entitled to Out of this decision are evolved two points the protection of the laws relating to copyright for the first time decided, for it is obvious in this country; but as the question which that two steps must be taken by the court to has been discussed is a legal one, I shall dicome to the conclusion at which it arrived. rect the plaintiff to bring an action within 1st. Every man's right to be decently in three weeks, for the purpose of trying his terred will hardly be denied; but does the right, and shall continue the injunction in the consequence follow that a man's funeral ex- meantime.” An action was accordingly penses are necessaries for him, for which an brought, but the defendant consented to a infant may be made liable. By a slight ex- verdict being taken against him. tension of the rule, as to what are necessaries, au infant's funeral expenses are, for the first
TENANT FOR LIFE. time, construed to be comprised within it. 24. This case affords a new illustration of the A TENANT for life cannot, it seems, lay out maxim cited from Lord Bacon's work. It moneys in building or improvement on the shows the operation of that maxim may forestate, and charge them on the inheritance ; some purposes continue even after the relation and, therefore, a court of equity will not diwhich gave it efficacy has ceased to exist. rect an inquiry what sums were expended by The court proceeded upon the principle that the tenant for life in substantial improvethere grows out of the contract of marriage ments beneficial to the inheritance. Vice a continuing identity, which survives the Chancellor Wigram, in deciding this, noticed death of one of the parties; and concluded the principal cases on the point. “I am of that as the husband's funeral expenses were opinion that I ought not to make the order necessaries for him, so his funeral expenses for the reference which the defendants seek in were necessaries for the wife; and, conse- this case. I was referred to the case of Hibquently, she having contracted for them, herbert v. Cook, Sim. & Stu. 552, as an authorinfancy afforded no defence. From this case ity for an inquiry; but in that case Sir John it appears the funeral expenses of a lawful Leach refused to direct an inquiry of the exchild are personal necessaries, for which an penses incurred by the tenant for life, in reinfant parent may be sued.
pairs to the mansion house, which had been rendered necessary owing to the dry rot, al
though the inquiry was not opposed. If the The lawyers have had a part of Lincoln's mansion house was affected by the dry rot, it Inn Square laid out as a garden; simply (says i,
would certainly be a substantial improvement to
y remove it; but the court, in Hibbert v. Cooke, Punch) because, as lawyers, they like to make said, that it was an expense to which a tenant the most of all that's green.
for life, choosing to occupy the property, must Practical Points.—Vendor and Purchaser--Alien.—Profert, and Inspection of Documents. submit. I do not know how to consider that it is not necessary to decide that if at the mocase otherwise than as overruling Graves v. ment the vendor discovered the defect, the Graves, M. R., March, 1822, cited Sim. and purchaser had held his hand, and had said-a Stu. 553. I do not mean to lay it down as material fact has been concealed and withheld an imperative rule, that no case could arise in from me, and therefore I refuse to complete which the court would sanction the expendi- the purchase it is possible under such cirture of moneys by a tenant for life, for the cumstances, that he could not have been combenefit of the inheritance, by making such pelled to complete it. I, however, do not deexpenditure a charge upon the inheritance. cide that point. Instead of so acting, the The case may be suggested, of a devise of parties continue in negotiation, in the course lands in strict settlement, and a direction to of which a further opinion is taken on the lay out a personal estate to the same uses: it title, and it is not till the end of the year might be more beneficial to the remainder- 1810, this having occurred in 1839, that the men, that a part of the trust fund should be matter is broken off.”— Eyston v. Symonds, 1 applied to prevent buildings on the settled | Yo. & Col. 608. estate from going to destruction, than that the whole should be laid out in the purchase of PROFERT, AND INSPECTION OF other lands. Other like cases might be sup
DOCUMENTS. posed. In Bostock v. Blakeney, 2 Bro. C. The right to inspect documents pendente lite C. 656, Mr. Justice Buller, sitting for the is one in respect of which the books of pracbord chancellor, directed, at the hearing of tice are somewhat at variance, and which it is the cause, an inquiry what substantial and often essential to the administration of juslasting improvements had been made by the tice, should be clearly. understood. tenant for life of the estate ; but the decree In actions founded on instruments under was re-heard by the lord chancellor and re- seal, or where a defendant justifies or excuses versed on this point; and in the case of Nairn himself under an instrument under seal, the v. Marjoribanks, 3 Russ. 582, the court was pleadings should make profert of the deed; asked to direct a reference whether it would and it was decided in a late case in the Court be for the benefit of the parties interested in of Exchequer, Hodgson v. Warden, 13 Mee. the property, that a new roof to the mansion & W. 22, where, in answer to a declaration honse should be constructed at the expense on a promissory note, the defendant pleaded of the testator's estate ; but Lord Eldon re- an assignment to trustees for the benefit of fused to make an order upon the petition, ob- creditors, and averred as an excuse for not serving, that he would not confirm the report, making profert, that the deed of assignment even if the master should find that it would was in the hands of the trustees, who refused be beneficial to all parties. I do not think to permit the defendant to have the possesthat the alleged fact of the insufficiency of the sion, that the excuse was insufficient, as the personal estate of testator in this case affects defendant was a party to the deed, and benethe question. Caldecott v. Brown, 2 Hare, ficially interested under it. On the other
hand, where a party sued as a surety pleaded
a release from the plaintiff to his principal, it VENDOR AND PURCHASER-ALIEN. Was hokien that the
N was holden that the defendant was not obliged
to make profert of the instrument, as there A PERSON contracted to sell an estate, who, at was no privity of interest between the printhe time of the contract, had no legal or equit- cipal and surety, and a party is not required able title to it, by reason of the party through to make profert of an instruinent to the poswhom he clained being an alien. The pur- session of which he is not entitled. Per chaser, by his own inquiries, ascertained the Parke, B., Bain v. Cooper, S Mee. & W.571. defect of title, but did not, till after some Instruments, in respect of which profert is months of negotiations with the vendor, re- made, are supposed to remain in court during pudiate the contract. The vendor then filed the term in which they have been pleaded, and his bill for specific performance, and pending therefore the party against whom a deed is the investigation of the title in the master's pleaded, is clearly entitled to inspect the deed office, obtained a grant of the estate from the whilst it is supposed to be in court, and if crown. Sir Knight Bruce, V. C., held that any practical difficulty was found in asserting he was entitled to a decree. “ It appears to the right, it would be the duty of the court mne very possible,”: said his honor, “though to enforce it. But where a party claims inIn Chancery.—Mallory and Hunter v. Vanderheyden and wife. der, or relies upon a document not under that the signature to the contract was not seal, the adverse party has no right to exam- written by the defendant, or with his authorine the instrument, although the courts of law, ity, and calling upon the plaintiff to show in the exercise of an equitable jurisdiction, cause why the contract should not be deposited and where the application appears clearly to with one of the masters of the court, with a view be for the advancement of justice, frequently to the inspection of the document by the interpose to afford the party interested an op- defendant, his attorney, and witnesses. In portunity for inspection. Applications of showing cause against the rule, it was admitThis description are usually made at chambers ted that the defendant was entitled to an inand not in open court; Vaughan v. Frement, spection of the contract in the hands of the 2 Dowl. 299, a circumstance which increases party to whom it belonged, and the only conthe difficulty of ascertaining upon what prin- tention was, whether it should be taken out ciple any particular application has been of his possession. Tindal, C.J., in delivering granted or refused. Lord Mansfield is said the judgment of the court, observed, that he to have laid down the rule, that whenever a was not aware of any instance in which a defendant would be entitled to a discovery in plaintiff was compelled to deposit a contract equity, he ought to be allowed an examination with the masters; but the rule was made abof the documents in a court of law; Tüdd's solute for an inspection by the defendant and Prac., 9 ed., 591; and this rule appears to his witnesses in the usual way, upon payment have been recognized and adopted as a guide of costs. by many succeeding judges in the exercise of == their equitable jurisdiction. It is stated in
In Chancery. accurately, in some of the books of practice, that where a written contract is declared upon, the courts will not compel an inspection of the Before the Honorable AMASA J. PARKER. Vice instrument upon the suggestion that it is
Chancellor of the Third Circuit. forged. The authority for this rule is a dictum of chief justice Eyre, in the case of
JOEL MallorY AND JOHN HUNTER v. LeviChetwind v. Marnell, in the year 1798, “ that
NUS VANDERHEYDEN AND LEUCHY HIS WIFE.
it would be a violent measure to order the
APPOINTMENT, BY FEME COVERT, OF HER SEPAplaintiff to produce an instrument which
RATE ESTATE-EFFECT OF DISCHARGE OP. might be the means of convicting him of a
HUSBAND IN BANKRUPTCY. capital felony.” The ground suggested by the learned chief justice, seems a very un- Where a debt is contracted by a woman dum sola, satisfactory reason for subjecting a party in a
with the expectation, on the part of the creditor, of civil action to the consequences which may
payment out of her separate property, and both
before and after her marriage she promises to pay result from the establishment of a fabricated
it, and consents that it be paid by an executor havdocument, and if correctly reported, Chetwind ing property in his hands belonging to her, by ap v. Marnell can have been but little considered: plying it on a note due from the complainants to for, as pointed out in a note in a number of
the estate, it is a sufficient appointment hy her as a
feme covert, to charge her separate property in Messrs. Manning and Granger's Reports, p.
equity with the payment of the debt. 277, the action was brought upon a bond of A discharge of the husband in bankruptcy, although which the plaintiff must have made profert, a bar to a suit at law against husband and wife, and to which the defendant pleaded non est
brought for the recovery of the debt of the wife con
tracted dum sola, is no defence to a bill filed to ob. factum, although the fact that profert was
tain satisfaction out of her separate estate, where made was not once adverted to, either by the there has been an appointment by her in equity counsel for the defendant or the court. Be charging her separate estate with the payment of this as it may, in more modern times an in the debt. spection has been frequently granted upon
A dictum of Chief Justice Parker in Miles v.
Williams, 1 Peere Williams 257, hokling a conthe suggestion that the document is a forgery.
trary doctrine, reviewed and its correctness deIn a late case of Thomas v. Dunn, 6. Man. & Gran. 264, where an action was brought on a written contract to employ the plaintiff as the The bill charged that the complainants were agent of the defendant, for the purpose of es- copartners in trade, doing business in the tablishing and conducting the Chinese Exhi- city of Troy, and that defendant, Leuchy bition, a rule was granted by the Court of Vanderheyden, when sole and unmarried, and Common Pleas, founded upon an affirmation between the 30th April, 1835, and the 6th