504. In the West Chester and Philadelphia Railway colored passengers are entitled to accommodations Company y. Miles, 55 Pa. St. 209, the court decided as suitable as those designated for the exclusive use that a common carrier may separate passengers in of white passengers. And I am of opinion, upon his conveyance, and that it was not an unreasona- perusal of the evidence adduced, that the cabin and ble regulation, for it prevented contacts and col- state-rooms reserved for colored passengers on lisions arising from natural and well known repug- the City of Bridgeton were substantially equal to nances, which are likely to breed disturbances to those from which the libellant was excluded by where white and colored persons are huddled to- the rules and regulations of the boat; and these, gesher without their consent.

so far as they were enforced, were reasonable and In the recent case against the Board of Direc- highly proper, imposing neither burdensome nor tors et al., published in the Atlanta Constitution, impossible conditions on libellant. And as to the of February 26th, 1879, and which involved the other question for decision, namely: the alleged question as to whether colored children were en- illegal and unjustifiable manner in which the libeltitled, as a matter of right, to be educated in the lant was, as she says, forced to leave the boat, and same school with white children, the United States the pain, indiguity and humiliation inflicted upon Circuit Court for Louisiana answered the question

her by the officers of the boat, this must be dein the negative. Said Mr. Justice Woods, in deliver- termined by the simple weight of evidence as in ing the opinion of the court, “Equality of right does other civil cases, and thus guided, my judgment is not involve the necessity of educating children of that she has failed to establish her asserted grievboth sexes or age in the same school. Any classi- ances and mental sufferings. fication which presumes substantially equal school It is therefore ordered, adjudged and decreed advantages, does not impair any rights, and is not that the libel be dismissed with costs, to be taxed prohibited by the Constitution of the United by the clerk. States. "Equality of rights does not necessarily imply identity of rights.''

In Hall v. DeCuir, 5 Otto, 485, in error to the Supreme Court of Louisiana, Benson, the master of GARNISHMENT-MONEY IN CUSTODIA • a steamboat, had refused a colored passenger, Mrs.

LEGIS. DeCuir (the plaintiff below) the privilege of the cabin set apart for white passengers, notwithstanding the law of Louisiana had declared that com

IN RE CUNNINGHAM. mon carriers of passengers should make no discrimination on account of race or color. Chief

United States District Court, District of Iowa, Justice Waite, in delivering the opinion of the

August, 1879, Supreme Court of the United States, said that

Congressional inaction left Benson at liberty to The rule that money in custodia legis is not subject adopt such reasonable rules and regulations for

to process is applicable to the case of funds in the the disposition of passengers upon his boat while

hands of an assignee in bankruptcy which another is

attempting to secure by garnishment. pursuing her voyage within Louisiana or without as seemed to him most for the interest of all concerned. We think this statute, to the

Gillmore & Anderson and Joseph G. Anderson, extent that it requires those engaged in the trans

for Alexander; James & Frank Hagerman, for inportation of passengers among the States to carry

tervenor. colored passengers in Louisiana in the same cabin LOVE, J.: with whites, is unconstitutional and void. If the The case before the court is this: On the public good requires such legislation, it must

—, 1876, Cunningham & Mason were by come from Congress, and not from the States." this court adjudged bankrupts, and Harry Fulton And Mr. Justice Clifford, in a concurring opinion, chosen assignee. This court, in bankruptcy, on said: “It is clear that a steamer carrying passen- the 220 day of September, 1877, declared a divigers may have separate cabins and dining saloons dend of said estate, and ordered the assignee to for white persons and persons of color, for the pay the same to the creditors. Among the credplain reason that the laws of Congress contain itors were Matthews & Co., to whom the court ad. nothing to prohibit such an arrangement."

judged a dividend of $488.38. Subsequent to the The steamboat City of Bridgeton, like all vessels order declaring the dividend, and directing the asengaged in transportiog passengers for hire be- signee to pay the same—but before the assignee tween the several States, is ranked as a portion of made the payment-that is to say, on the 29th day the national marine, and consequently within the of September, 1877, Miller Alexander, to whom governing power of the national legislature. Cun- Matthews & Co. were indebted by note, comgress has not deemed it necessary or essential to menced a suit in the circuit court of Lee county, the welfare of the colored citizen to enact any Iowa, and garnisheed Harry Fulton, the assignee, law forbidding inter-State common carriers, by seeking to obtain satisfaction out of the dividend water or land, from regulating the business of in his hands which had been adjudged to Matththeir vessels or vehicles in such manner that the, ews & Co. Miller Alexander transferred his right accommodations for colored passengers on their of action to Fontaine Alexander, who was duly respective conveyances, may be distinct and sepa- substituted as plaintiff in the State court, and who, rate from those assigned to white passengers, yet in due course, obtained judgment against Matthews

*

*

day of

simply to turn over to each individual distributee now before the court. Here the court of bankthe amount awarded to him by the final judgment ruptcy has declared a dividend, and determined of the court, may be garnished by a creditor of a specifically what each creditor is entitled to. It has party to whom the dividend or distributive share ordered the assignee to pay a specific sum to the has been adjudged. Thus, in New Hampshire, judgment debtor in the State court from which the Delaware and Missouri, while the principle an- process of garnishment issued. If the assignee failnounced in Massachusetts was recognized as sound, ed to pay that sum, he would be liable to a personal it was considered to be inapplicable when an ad- action; why, therefore, may he not be garnished? ministrator had been, by the proper tribunal, ad- Why may not a personal judgment be rendered judged and ordered to pay a certain sum to a cred- against him, as garnishee for the amount of the itor of the estate, and in such case the administra- dividend, since a personal action could be maintor was charged as trustee of the party to whom tained by the judgment creditor against him for the money was ordered to be paid. Adams v. the same cause? Barrett, 2 N. H. 374; Fitchett v. Dolbee, 3 Harr. There is, in my judgment, an insuperable diffi(Del.) 267; Curling v. Hyde, 10 Mo. 374; Richards culty in recognizing this view in the present case, v. Griggs, 16 Mo. 416.

growing out of the peculiar jurisdiction in bankThe reason of this exception was given by the ruptcy. It can not for a moment be doubted that Superior Court of New Hampshire, and adopted the court of bankruptcy has exclusive jurisdiction by the Supreme Court of Missouri in the following of the bankrupt's estate, and of its administration language: “ An administrator, till he is persons from the time of the adjudication to the final disally liable to an action in consequence of his pri- charge of the estate, and the discharge of the asvate promise—the settlement of the estate, or some signee. This jurisdiction does not, by any means, decree against him, or other cause-can not be lia- cease with the order of distribution. It is clearly ble to a trustee process. Because till some such within the power of the court, and its duty to see event, the principal has no ground of action against that its assignee pays over to the distributees the him in his private capacity, and he is bound to ac

dividends awarded to them. The assignee failing to count otherwise for the funds in his hands. The perform this duty, the court would punish him for suit against him till such an event, is against him contempt-order a suit upon his official bond, and in his representative capacity, and the execution refuse to give him a final discharge. This jurisdicmust issue to be levied de bonis testatoris and not de tion is exclusive. No other court can touch, or bind bonis propriis. But in the present case, the trustee the assets of the bankrupt, or authorize any suit was liable in his private capacity to the defendant against the assignee, who is the officer of the court. for the dividend. The debt has been liquidated, It follows that any action in any other tribunal, aimand the decree of payment passed. The debt was ing to control the action of the assignee, or directly also due immediately. Execution for it ran against or indirectly compel the assignee to dispose of the his own goods, and the trustee process would in- assets or pay over money in his hands belonging to troduce neither delay nor embarrassment in the the estate, must be utterly without jurisdiction, and final settlement of the estate.” The doctrine of

therefore null and void. What is the effect of a this case is that where the court having custody of

garnishment of the assignee? It either compels the money, fund or property, and jurisdiction of him to suspend payment to the distributee in bankthe subject-matter, makes a final determination of ruptcy, in pursuance of the order and judgment of the matter, and awards judgment as to the amount the baukrupt court, or it is without any legal effito be paid to each individual distributee, the officer cacy whatever. The nature of every garnishment thus required to make payment may be made per- is that the garnishee must, upon receiving the no. sonally liable for his failure to make the payment,

tice, keep the property, money or debts in statu and therefore a garnishment against him, resulting

quo, to await the final judgment of the court issuin a personal judgment, is no invasion of the juris- ing the process. The notice of garnishment to the diction of the court having the property in custody,

assignee in this case had that effect, or it was wholly and no encroachment upon the possession of that nugatory. But how could the State court, without court. On the contrary, the garnishment recog- any jurisdiction whatever, issue any process to ar. nizes the action of the court ordering the payment

rest the action of the assignee in the payment of or distribution, and founds itself upon the judg

dividends ordered by the court of bankruptcy. ment of that court. When the judgment in the gar- How could a court manifestly without jurisdiction, nishment proceeding must needs be against the gar- thus by its process and judgment effect the adminnishee in his representative capacity, the proceed

istration of, and final distribution of the bankrupt's ing must fail, because it could be levied neither upon

estate? To sum up the argument, the court of the garnishee's private property nor upon the prop- bankruptcy having exclusive jurisdiction, orerty he represents; not upon the former, because ders its assignee to distribute the estate to the the judgment is not personal, nor upon the latter,

creditors, in dividends declared by the court; but because the property which he represents is in the a State court, without any jurisdiction whatever, possession and under the control of another court, sends its process to the assignee, commanding him whose possession and jurisdiction can not be in- in substance, not to pay over the dividends, but to vaded.

await the final judgment of the State court! Which It might be supposed, upon a kasty glance, that

of these commands shall the assignee obey? And the principle laid down in the New Hamshire, Del

if this could be done it might result in postponing aware and Missouri cases is applicable to the case

almost indefinitely, the final settlement of bank

rupts' estates; for there might be numberless suits paid by check a bill at that time owing to the against the creditors in bankruptcy, and, of course, plaintiff for goods supplied to his wife's order. In there could be no final settlement and distribution | November, 1873, the defendant authorized his. until the final action and judgment in the State agent to pay the whole of his income to his wife, courts in the principal actions. ; Hence the pro- and, further, gave her authority to draw checks at ceedings in bankruptcy would have to be stayed, discretion. In December, 1873, the defendant beto await the slow and tedious course of justice, came lunatic, and was confined in a private asylum which might prove to be long protracted litigation until April, 1877. Between April, 1876, and July, in the State courts.

1877, the defendant's wife ordered, and the plainIt was argued that this court, seeing the justice tiff supplied to her on credit, certain goods, the of the petitioner's claim as a creditor, would, by a

price of which was claimed in this action. At that sort of comity, recognize the judgment of the State time the plaintiff was not aware that the defendcourt, and order the assignee to pay the dividend ant had become lunatic, or that he had authorized upon it. Comity is a vague and undefined princi

his wife to receive bis income. In June, 1877, the ple in our jurisprudence. I do not know of any defendant, having recovered his reason, ordered law or usage which would justify the court in his agent to cease paying his income over to his making such an order. If the question were be- wife, and also revoked the authority previously tween the original parties, there would be less diff. given her to draw checks. On these facts, the culty; but other rights have intervened. The div- learned judge at the trial declined to leave to the idend has been assigned, and the assignee is before jury the question whether, at the time the goodsthe court claiming under his assignment. Seeing in question were supplied, the income received by that the garnishment was without jurisdiction, and

the defendant's wife was sufficient for the maintetherefore absolutely null, there was no lien, and nance of herself and family, and directed the jury nothing pending in the nature of a judicial pro- to find for the plaintiff for the amount claimed. ceeding of which the assignee of the dividend was The defendant appealed to this court, and obbound to take notice. I ean not, therefore, see but tained a rule nisi for a new trial on the ground of that he had a perfect right to purchase the divi. misdirection. dend, and take a transfer of it. And if he did, and Willis, Q. C., and R. O. B. Lane, for the plainpaid his money for it, his equity is at least equal to tiff: There was no misdirection, and the verdict that of the attaching creditor. There is, there- should not be disturbed. First, the authority given fore, no overruling consideration of equity to in- to the defendant's wife to pledge her husband's duce the court to resort to some extraordinary credit was not determined by his subsequent luremedy unknown to the law, to aid the attaching nacy. Insanity is different from marriage or creditor as against the assignee of the dividend. death. A contract entered into with a lunatic may The fund should be paid to Roberts, the interve be enforced where no advantage is taken of his

incapacity, where the consideration is executed in whole or in part, and where the person contract

ing is unaware of the incapacity of the lunatic. PRINCIPAL AND AGENT-LUNACY-RE- Baxter v. Earl of Portsmouth, 5 B. & C. 170; VOCATION OF AUTHORITY.

Molton v. Camroux, 2 Ex. 487. So also where the person contracting is aware of the incapacity

of the lunatic, if no advantage is taken, the conDREW V. NUNN.

tract may be enforced. Brown v. Jodrell, 3 C. &

P. 30 (per Lord Tenterden); Dane v. Viscountess English Court of Appeal, May, 1879.

Kirkwall, 8 C. & P. 679; Niell v. Morley, 9 Ves.

478. Subsequent lunacy does not revoke the ap1. WHERE PRINCIPAL BECOMES LUNATIC, after

pointment of an agent previously made. Stead v. holding out an agent as having authority to contract

Thornton (uote to Stephens v. Badcock, 3 B. & Ad. on his behalf, he is liable on contracts made by the agent with a third person to whom such authority has

357) was decided upon the ground that the lunatic been held out, and who has bad no notice of the lu

was incompetent to appoint an agent. So also naey.

Tarbuck v. Bispham, 2 M. & W. 2; Read v. Le2. WHERE THE LUNACY OF A PRINCIPAL is of so

gard, 6 Ex. 636, does not apply, por does Davidson serious a nature as to render him incapable of con:

v. Wood, 11 W. R. 791, in which a lunatic hustracting on his own behalf, it revokes an authority to band's estate was held liable for necessaries supcontraci for him previou-ly given to an agent.

plied to the wife: see Richardson v. Du Bois, 18

W. R. 62; L. R. 5 Q. B. 51. Story on Agency, 7th The action was tried before Mellor, J., and a ed. $ 481, doubts whether junacy revokes an jury at Westminster, and the facts proved or ad- agent's authority until the lunacy has been estabmitted at the trial were as follows:

lished by inquisition (note to Manby v. Scott, 2The plaintiff's claim was for £99 4s. 4d., the Smith's Leading Cases, 7th ed. 479). Secondly, price of boots and shoes supplied by the plaintiff even if lunacy revokes the authority of an agent, to the defendant upon the order of the defendant's a person to whom the agent has been held out as wife. From the beginning of the year 1872 till the having authority, and who has had no notice of close of the year 1873 the defendant, who was re- the lunacy, is not bound by the revocation. Apart siding in London with his wife and family, dealt from the question of insanity, the revocation of an with the plaintiff on credit, and in August, 1872, agent's authority does not relieve the principal

nor.

.

from liability unless that revocation is communi- Two questions then arise-first of all, does such cated to persons dealing with the agent.

insanity put an end to the authority of the agent, Horne Payne, for the defendant: The second that is, cause the mandate or authority to cease ? point is not open to the plaintiff, for there was no One would have thought such a question as that ånding of the jury that the defendant held out his would have been clearly decided on clear princiwife as having express authority to pledge his ples, and one naturally looked at the ordinary credit. As to the first point, lunacy clearly re

authorities on such matters-Story on Agency, the vokes an agent's authority, and is analogous to

Scotch authorities, Pothier and other French cases of death or marriage. A lunatic's marriage

authorities—but I have found no satisfactory conis void if at the time of the ceremony he was inca

clusion arrived at. pable of understanding the nature of his acts. If it had been held that such insanity did not put Browning v. Reane, 2 Phill. Ecc. Cas. 69; Howard an end to the agent's authority, then that would v. Digby, 2 C). & Fin. 634. Both Stead v. Thorn- decide this case, and the plaintiff would be entitled ton and Tarbuck v. Bispham, cited by the other to recover on that ground; but, in my own indiviside, show that a lunatic is incompetent to ap- dual opinion, such insanity does put an end to the point an agent, and Story on Agency, 7th ed. $ 6, authority. It was admitted that certain changes says that idiots and lunatics are wholly incapable of status in the principal did put an end to the of delegating anthority to agents. Besides, if lu- authority, as, for instance, if a woman be the nacy does not revoke the agent's authority, the in- principal who has appointed an agent, marriage conveniences might be very great, as that authority puts an end to the authority of the agent, banknever can be revoked during the whole period of ruptcy of the principal puts an end to the authorthe lunacy. As regards death operating as a revo- ity of the agent, death of the principal puts an end cation of authority, see Blades v. Free, 9 B. & Cr. to the authority of the agent. 167, referred to in Sinout v. Ilbery, 10 M. & W. 1. It has been said that the authority is put an end BRETT, L. J.

to because the person who would be liable is a This case has stood over for a long time, princi- different person from the original principal—that pally on my account, in order that I might make is to say, in a case of marriage, the husband would every effort to see if I could determine it on a sat- be the person to be bound, and in a case of bankisfactory principle. I confess to having found it ruptcy the assignee, and in a case of death the one of the most difficult and least satisfactorily

heir or the executors. explained doctrines I have ever found in the Eng- If the change of person were the real ground on lish law.

which we had to proceed, then it seems to follow It was a case tried before Mr. Justice Mellor, in that lunacy of the principal would not put an end which the plaintiff brought an action against the to the authority until the lunacy had been estabdefendant for boots and shoes supplied to the de

lished by a cominission, so that there would be the fendant's wife, and the facts of the case, which committee to be made liable instead of the lunatic; are beyond dispute, are that the defendant, when but I cannot think that that is a satisfactory prinsane, had held out that he had given to his wife ciple, for in a case of bankruptcy the assignees are absolute authority to act for him, and that he had bound to carry out any contract made before bankheld out to the plaintiff that he had given his wife ruptcy of the principal, though, they are different such authority. I think it must be taken that af- persons; in cases of death the executors or repreterwards the defendant became, not merely insane,

sentatives of the dead person are bound to do so, but so insane that he could not have contracted on and I see no reason why they should be in a differhis own behalf, and so insane that if he had been ent position from the principal. I caunot help seen by any one proposing to contract with him, thinking, therefore, that the true ground of the Shultz

doctrine is that the agent, being a person appointed such person must have seen at once that the de- to act for the principal, from the moment the prinfendant was so insane as really to have no mind at cipal himself could not act according to law, the all. Under these circumstances, the defendant's agent who represents him cannot act for him. If wife ordered certain goods from the plaintiff, who 80, lunacy, to the extent of the lunacy in this case, had no notice of the defendant's lunacy. Her lunacy so great that the principal can have no husband was confined for a time in a lunatic asy- contracting mind, and so great that the person who lum, but afterwards recoved, and after his recov- contracted with him must see that, and if so, the ery this action is brought against him, and he de- principal was a person who could not contract

himself, who a

given to his wife to get for him was put an end

to want of mind, then, if the principle I have stated

by insanity to the degree I have stated, and that therefore he is not liable to the plaintiff, and the plaintiff cannot recover. Mr. Justice Mellor left no question to the jury as to the amount of the insanity of the defendant, but directed them, as a matter of law, that the plaintiff was entitled to recover. I think upon that direction—no question having been left to the jury in the matter-that we must assume that insanity existed to the extent I have mentioned.

is true, as the principal himself could not contract or do the act himself, his agent cannot do so for him, and that is the principle on which I think the authority is put an end to.

Such lunacy, therefore, to my mind, puts an end to the authority of the agent, and if any agent acts for a principal after such a state of lunacy in the principal is brought to his knowledge, it seems to me he is liable to any person with whom he acted for so purporting to act on behalf of the principal