504. In the West Chester and Philadelphia Railway Company y. Miles, 55 Pa. St. 209, the court decided that a common carrier may separate passengers in his conveyance, and that it was not an unreasonable regulation, for it prevented contacts and collisions arising from natural and well known repugnances, which are likely to breed disturbances where white and colored persons are huddled togesher without their consent.

In the recent case against the Board of Directors et al., published in the Atlanta Constitution, of February 26th, 1879, and which involved the question as to whether colored children were entitled, as a matter of right, to be educated in the same school with white children, the United States Circuit Court for Louisiana answered the question in the negative. Said Mr. Justice Woods, in delivering the opinion of the court, "Equality of right does not involve the necessity of educating children of both sexes or age in the same school. Any classification which presumes substantially equal school advantages, does not impair any rights, and is not prohibited by the Constitution of the United 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 - a steamboat, had refused a colored passenger, Mrs. DeCuir (the plaintiff below) the privilege of the cabin set apart for white passengers, notwithstanding the law of Louisiana had declared that common carriers of passengers should make no discrimination on account of race or color. Chief Justice Waite, in delivering the opinion of the Supreme Court of the United States, said that

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Congressional inaction left Benson at liberty to adopt such reasonable rules and regulations for the disposition of passengers upon his boat while pursuing her voyage within Louisiana or without as seemed to him most for the interest of all concerned. * * We think this statute, to the extent that it requires those engaged in the transportation of passengers among the States to carry colored passengers in Louisiana in the same cabin with whites, is unconstitutional and void. If the public good requires such legislation, it must come from Congress, and not from the States." And Mr. Justice Clifford, in a concurring opinion, said: "It is clear that a steamer carrying passengers may have separate cabins and dining saloons for white persons and persons of color, for the plain reason that the laws of Congress contain nothing to prohibit such an arrangement."

The steamboat City of Bridgeton, like all vessels engaged in transporting passengers for hire between the several States, is ranked as a portion of the national marine, and consequently within the governing power of the national legislature. Congress has not deemed it necessary or essential to the welfare of the colored citizen to enact any law forbidding inter-State common carriers, by water or land, from regulating the business of their vessels or vehicles in such manner that the accommodations for colored passengers on their respective conveyances, may be distinct and separate from those assigned to white passengers, yet

colored passengers are entitled to accommodations as suitable as those designated for the exclusive use of white passengers. And I am of opinion, upon perusal of the evidence adduced, that the cabin and state-rooms reserved for colored passengers on the City of Bridgeton were substantially equal to to those from which the libellant was excluded by the rules and regulations of the boat; and these, so far as they were enforced, were reasonable and highly proper, imposing neither burdensome nor impossible conditions on libellant. And as to the other question for decision, namely: the alleged illegal and unjustifiable manner in which the libellant was, as she says, forced to leave the boat, and the pain, indiguity and humiliation inflicted upon her by the officers of the boat, this must be determined by the simple weight of evidence as in other civil cases, and thus guided, my judgment is that she has failed to establish her asserted grievances and mental sufferings.

It is therefore ordered, adjudged and decreed that the libel be dismissed with costs, to be taxed by the clerk.

GARNISHMENT-MONEY IN CUSTODIA

LEGIS.

IN RE CUNNINGHAM.

United States District Court, District of Iowa, August, 1879,

The rule that money in custodia legis is not subject to process is applicable to the case of funds in the hands of an assignee in bankruptcy which another is attempting to secure by garnishment.

Gillmore & Anderson and Joseph G. Anderson, for Alexander; James & Frank Hagerman, for intervenor.

LOVE, J.:

The case before the court is this: On the day of ——, 1876, Cunningham & Mason were by this court adjudged bankrupts, and Harry Fulton chosen assignee. This court, in bankruptcy, on the 22d day of September, 1877, declared a dividend of said estate, and ordered the assignee to pay the same to the creditors. Among the creditors were Matthews & Co., to whom the court adjudged a dividend of $488.38. Subsequent to the order declaring the dividend, and directing the assignee to pay the same-but before the assignee made the payment-that is to say, on the 29th day of September, 1877, Miller Alexander, to whom Matthews & Co. were indebted by note, commenced a suit in the circuit court of Lee county, Iowa, and garnisheed Harry Fulton, the assignee, seeking to obtain satisfaction out of the dividend in his hands which had been adjudged to Matthews & Co. Miller Alexander transferred his right of action to Fontaine Alexander, who was duly substituted as plaintiff in the State court, and who, in due course, obtained judgment against Matthews

& Co. in the State circuit court for the full amount of his claim, and against Harry Fulton, as garnishee, for said sum of $488.38. The judgment against the garnishee, Fulton, was somewhat peculiar. It provided that no execution should issue until the District Court of the United States for the district of Iowa, should order said Harry Fulton, assignee, to pay said sum to plaintiff. On the 16th day of January, 1878, Miller Alexander presented his petition to this court, praying that Harry Fulton be ordered to pay the sum due from him to said Matthews & Co. to the sheriff of Lee county to abide the judgment of the State court.

It further appears that, on the 28th day of April, 1879, said Matthews & Co., for a valuable consideration, transferred and assigned, to one Elbert G. Roberts, who intervenes in the case, the said dividend, amounting to said sum of $488.38, authorizing him to collect the same, etc. Harry Fulton also intervenes, answering petitions of plaintiff and said Roberts, asking to be protected.

It is well settled that money or property in custodia legis can not be reached by garnishment on execution in the absence of statutory authority. This doctrine has been applied in numerous cases; to various classes of legal custodians, such as receivers, sheriffs, clerks of court, executors and administrators, treasurers, assignees in bankruptcy, etc. Patterson v. Pratt, 19 Ia. 358; Drake on Attachments, 5th ed., ch. 22, 493 to 516. Property in hands of a receiver is in custodia legis, and is exempt from execution or attachment: Watson v. Davis, 21 Ia. 539; Wiswall v. Sampson, 14 How. 52; Columbian Book Co. v. DeGolyer, 115 Mass. 69; Glenn v. Gill, 2 Md. 1; Taylor v. Gillean, 23 Tex. 508; Field v. Jones, 11 Ga. 413; Nelson v. Connor, 6 Rob. (La.) 339; Langdon v. Lockett, 6 Ala. 727; Farmers' Bank v. Beaston, 7 Gill. & John. 421; Gouverneur v. Warner, 2 Sandf. 624; Co. of Yuba v. Adams & Co., 7 Cal. 35; Bently v. Shrieve, 4 Md. Chy. Dec. 412; Freeman on Executions, 129; Drake on Attachment, 509; Robinson v. A. & G. Ry. Co., 66 Pa. St. 160. Same rule applies to garnishment: Glenn v. Gill, 2 Md. 1; Taylor v. Gillian, 23 Tex. 508; Columbian Book Co. v. De Golyer, 115 Mass. 69; High on Receivers, 151. Applied to trustee appointed by the court: Bentley v. Shrieve, 4 Md. Chy. 412. See Jones v. Gorham, 2 Mass. 375; DeCoster v. Livermore, 4 Mass. 101, in which assignees, under the bankrupt law of 1800, were charged. But the question was not raised nor considered, and the cases were afterwards overruled in Colby v. Coates, 6 Cush. 558.

The rule was applied to sheriffs: Wilder v. Bailey, 3 Mass. 289. To county treasurers: Chealy v. Brewer, 7 Mass. 259. To executors and administrators: Brooks v. Cook, 8 Mass. 246. Colby V. Coates, 6 Cush. 558, decided that an assignee, under the insolvent law of Massachusetts, can not be reached by trustee process; approved and followed in Columbian Book Co. v. DeGolyer, 115 Mass. 69. Dewing v. Wentworth, 11 Cush. 499. Assignees in bankruptcy can not be charged as garnishees in State courts; Re Bridgman, 2 Bk. Reg. 522; Jackson v. Miller, 9 Bk. Beg. 252. The remedy edy to reach this fund is to have a receiver ap

pointed to represent this fund in bankrupt court. Jackson v. Miller, 9 Bk. Reg. 143; or by creditors' bill before judgment, Pendleton v. Perkins. 49 Mo. 565; Thompson v. Scott, 4 Dillon, 508. The State court has no authority to bring an assignee before it who is acting under the orders of the United States court. Akins v. Stradley, 1 N. W. Rep. (N.

S.) 609.

The reason of this doctrine seems to be that the court, having the money or property in its custody under the law, holds it for some purpose, of which that court is exclusive judge. To permit property or money thus held, to be seized on execution, attached or garnisheed, would, therefore, defeat the very purpose for which it is held, and, in many cases, enable some other court to dispose of the property or money, and wholly divest it from the end or purpose for which possession has been taken. A conflict of jurisdiction and decision would, in many cases, thus ensue. Thus, the court in possession of the property or money might order it to be distributed or paid in a certain way, while the court issuing the process of garnishment might order and adjudge a wholly different designation of the property or money. To attempt a seizure of property by attachment in some other court would necessarily bring the two tribunals into collision, and would, if successful, wholly withdraw the property from the power of the court in possession, and divert it from the purpose for which possession has been taken.

The true doctrine is that, when property or money is in custodia legis, the officer holding it is the mere hand of the court; his possession is the possession of the court; to interfere with bis possession is to invade the jurisdiction of the court itself, and an officer so situated is bound by the orders and judgments of the court whose mere agent he is, and he can make no disposition of it without the consent of his own court, express or implied. How can such an officer, when garnisheed, know what answer he can make with safety to himself, in a vance of the orders and judgments of the court having possession of the property and jurisdiction of his person? How could such an officer safely expose himself by his answer as garnishee to the danger of a personal judgment in some other court, before the determinations of the court having control of him and the property? Suppose the court, whose hand and agent he is, should order and direct him, in a given case, to make one disposition of the property or money, and the court issuing the process of garnishment should enter judgment against him, requiring a wholly different disposition of it, which judgment should he obey? He would be like a soldier between two fires, and he would inevitably fall under one or the other. But by far the deadlier fire of the two would be that of his own court, since he would not only, by a disobedience of its orders, expose himself to a suit upon his official bond, but to punishment for contempt.

In this view of the subject, it has been held in some cases that, when the court having charge of the property, money or funds makes final orders for its distribution, the officer whose duty it is

simply to turn over to each individual distributee the amount awarded to him by the final judgment of the court, may be garnished by a creditor of a party to whom the dividend or distributive share has been adjudged. Thus, in New Hampshire, Delaware and Missouri, while the principle announced in Massachusetts was recognized as sound, it was considered to be inapplicable when an administrator had been, by the proper tribunal, adjudged and ordered to pay a certain sum to a creditor of the estate, and in such case the administrator was charged as trustee of the party to whom the money was ordered to be paid. Adams v. Barrett, 2 N. H. 374; Fitchett v. Dolbee, 3 Harr. (Del.) 267; Curling v. Hyde, 10 Mo. 374; Richards v. Griggs, 16 Mo. 416.

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The reason of this exception was given by the Superior Court of New Hampshire, and adopted by the Supreme Court of Missouri in the following language: An administrator, till he is personally liable to an action in consequence of his private promise-the settlement of the estate, or some decree against him, or other cause-can not be liable to a trustee process. Because till some such event, the principal has no ground of action against him in his private capacity, and he is bound to account otherwise for the funds in his hands. The suit against him till such an event, is against him in his representative capacity, and the execution must issue to be levied de bonis testatoris and not de bonis propriis. But in the present case, the trustee was liable in his private capacity to the defendant for the dividend. The debt has been liquidated, and the decree of payment passed. The debt was also due immediately. Execution for it ran against his own goods, and the trustee process would introduce neither delay nor embarrassment in the final settlement of the estate." The doctrine of this case is that where the court having custody of the money, fund or property, and jurisdiction of the subject-matter, makes a final determination of the matter, and awards judgment as to the amount to be paid to each individual distributee, the officer thus required to make payment may be made personally liable for his failure to make the payment, and therefore a garnishment against him, resulting in a personal judgment, is no invasion of the jurisdiction of the court having the property in custody, and no encroachment upon the possession of that court. On the contrary, the garnishment recognizes the action of the court ordering the payment or distribution, and founds itself upon the judgment of that court. When the judgment in the garnishment proceeding must needs be against the garnishee in his representative capacity, the proceeding must fail, because it could be levied neither upon the garnishee's private property nor upon the property he represents; not upon the former, because the judgment is not personal, nor upon the latter, because the property which he represents is in the possession and under the control of another court, whose possession and jurisdiction can not be invaded.

It might be supposed, upon a kasty glance, that the principle laid down in the New Hamshire, Delaware and Missouri cases is applicable to the case

now before the court. Here the court of bankruptcy has declared a dividend, and determined specifically what each creditor is entitled to. It has ordered the assignee to pay a specific sum to the judgment debtor in the State court from which the process of garnishment issued. If the assignee failed to pay that sum, he would be liable to a personal action; why, therefore, may he not be garnished? Why may not a personal judgment be rendered against him, as garnishee for the amount of the dividend, since a personal action could be maintained by the judgment creditor against him for the same cause?

There is, in my judgment, an insuperable difficulty in recognizing this view in the present case, growing out of the peculiar jurisdiction in bankruptcy. It can not for a moment be doubted that the court of bankruptcy has exclusive jurisdiction of the bankrupt's estate, and of its administration from the time of the adjudication to the final discharge of the estate, and the discharge of the assignee. This jurisdiction does not, by any means, cease with the order of distribution. It is clearly within the power of the court, and its duty to see that its assignee pays over to the distributees the dividends awarded to them. The assignee failing to perform this duty, the court would punish him for contempt-order a suit upon his official bond, and refuse to give him a final discharge. This jurisdiction is exclusive. No other court can touch, or bind the assets of the bankrupt, or authorize any suit against the assignee, who is the officer of the court. It follows that any action in any other tribunal, aiming to control the action of the assignee, or directly or indirectly compel the assignee to dispose of the assets or pay over money in his hands belonging to the estate, must be utterly without jurisdiction, and therefore null and void. What is the effect of a garnishment of the assignee? It either compels him to suspend payment to the distributee in bankruptcy, in pursuance of the order and judgment of the bankrupt court, or it is without any legal efficacy whatever. The nature of every garnishment is that the garnishee must, upon receiving the notice, keep the property, money or debts in statu quo, to await the final judgment of the court issuing the process. The notice of garnishment to the assignee in this case had that effect, or it was wholly nugatory. But how could the State court, without any jurisdiction whatever, issue any process to arrest the action of the assignee in the payment of dividends ordered by the court of bankruptcy. How could a court manifestly without jurisdiction, thus by its process and judgment effect the administration of, and final distribution of the bankrupt's estate? To sum up the argument, the court of bankruptcy having exclusive jurisdiction, orders its assignee to distribute the estate to the creditors, in dividends declared by the court; but a State court, without any jurisdiction whatever, sends its process to the assignee, commanding him in substance, not to pay over the dividends, but to await the final judgment of the State court! Which of these commands shall the assignee obey? And if this could be done it might result in postponing almost indefinitely, the final settlement of bank

rupts' estates; for there might be numberless suits against the creditors in bankruptcy, and, of course, there could be no final settlement and distribution until the final action and judgment in the State courts in the principal actions. Hence the proceedings in bankruptcy would have to be stayed, to await the slow and tedious course of justice, which might prove to be long protracted litigation in the State courts.

It was argued that this court, seeing the justice of the petitioner's claim as a creditor, would, by a sort of comity, recognize the judgment of the State court, and order the assignee to pay the dividend upon it. Comity is a vague and undefined principle in our jurisprudence. I do not know of any law or usage which would justify the court in making such an order. If the question were between the original parties, there would be less difficulty; but other rights have intervened. The dividend has been assigned, and the assignee is before the court claiming under his assignment. Seeing that the garnishment was without jurisdiction, and therefore absolutely null, there was no lien, and nothing pending in the nature of a judicial proceeding of which the assignee of the dividend was bound to take notice. I can not, therefore, see but that he had a perfect right to purchase the dividend, and take a transfer of it. And if he did, and paid his money for it, his equity that of the attaching creditor. fore, no overruling consideration of equity to induce the court to resort to some extraordinary remedy unknown to the law, to aid the attaching creditor as against the assignee of the dividend. The fund should be paid to Roberts, the interve

nor.

is at least equal to There is, there

PRINCIPAL AND AGENT-LUNACY-REVOCATION OF AUTHORITY.

DREW v. NUNN.

English Court of Appeal, May, 1879.

1. WHERE A PRINCIPAL BECOMES LUNATIC, after holding out an agent as having authority to contract on his behalf, he is liable on contracts made by the agent with a third person to whom such authority has been held out, and who has had no notice of the lunacy.

2. WHERE THE LUNACY OF A PRINCIPAL is of so serious a nature as to render him incapable of contracting on his own behalf, it revokes an authority to contract for him previously given to an agent.

The action was tried before Mellor, J., and a jury at Westminster, and the facts proved or admitted at the trial were as follows:

The plaintiff's claim was for £99 4s. 4d., the price of boots and shoes supplied by the plaintiff to the defendant upon the order of the defendant's wife. From the beginning of the year 1872 till the close of the year 1873 the defendant, who was residing in London with his wife and family, dealt with the plaintiff on credit, and in August, 1872,

paid by check a bill at that time owing to the plaintiff for goods supplied to his wife's order. In November, 1873, the defendant authorized hisagent to pay the whole of his income to his wife, and, further, gave her authority to draw checks at discretion. In December, 1873, the defendant became lunatic, and was confined in a private asylum until April, 1877. Between April, 1876, and July, 1877, the defendant's wife ordered, and the plaintiff supplied to her on credit, certain goods, the price of which was claimed in this action. At that time the plaintiff was not aware that the defendant had become lunatic, or that he had authorized his wife to receive his income. In June, 1877, the defendant, having recovered his reason, ordered his agent to cease paying his income over to his wife, and also revoked the authority previously given her to draw checks. On these facts, the learned judge at the trial declined to leave to the jury the question whether, at the time the goodsin question were supplied, the income received by the defendant's wife was sufficient for the maintenance of herself and family, and directed the jury to find for the plaintiff for the amount claimed.

The defendant appealed to this court, and obtained a rule nisi for a new trial on the ground of misdirection.

Willis, Q. C., and R. O. B. Lane, for the plaintiff: There was no misdirection, and the verdict should not be disturbed. First, the authority given to the defendant's wife to pledge her husband's credit was not determined by his subsequent lunacy. Insanity is different from marriage or death. A contract entered into with a lunatic may be enforced where no advantage is taken of his incapacity, where the consideration is executed in whole or in part, and where the person contracting is unaware of the incapacity of the lunatic. Baxter v. Earl of Portsmouth, 5 B. & C. 170; 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 contract may be enforced. Brown v. Jodrell, 3 C. & P. 30 (per Lord Tenterden); Dane v. Viscountess Kirkwall, 8 C. & P. 679; Niell v. Morley, 9 Ves. 478. Subsequent lunacy does not revoke the appointment of an agent previously made. Stead v. Thornton (note to Stephens v. Badcock, 3 B. & Ad. 357) was decided upon the ground that the lunatic was incompetent to appoint an agent. So also Tarbuck v. Bispham, 2 M. & W. 2; Read v. Legard, 6 Ex. 636, does not apply, nor does Davidson v. Wood, 11 W. R. 791, in which a lunatic husband's estate was held liable for necessaries supplied to the wife: see Richardson v. Du Bois, 18 W. R. 62; L. R. 5 Q. B. 51. Story on Agency, 7th ed. § 481, doubts whether lunacy revokes an agent's authority until the lunacy has been established by inquisition (note to Manby v. Scott, 2 Smith's Leading Cases, 7th ed. 479). Secondly, even if lunacy revokes the authority of an agent, a person to whom the agent has been held out as having authority, and who has had no notice of the lunacy, is not bound by the revocation. Apart from the question of insanity, the revocation of an agent's authority does not relieve the principal

from liability unless that revocation is communicated to persons dealing with the agent.

Horne Payne, for the defendant: The second point is not open to the plaintiff, for there was no finding of the jury that the defendant held out his wife as having express authority to pledge his credit. As to the first point, lunacy clearly revokes an agent's authority, and is analogous to cases of death or marriage. A lunatic's marriage is void if at the time of the ceremony he was incapable of understanding the nature of his acts. Browning v. Reane, 2 Phill. Ecc. Cas. 69; Howard v. Digby, 2 Cl. & Fin. 634. Both Stead v. Thornton and Tarbuck v. Bispham, cited by the other side, show that a lunatic is incompetent to appoint an agent, and Story on Agency, 7th ed. § 6, says that idiots and lunatics are wholly incapable of delegating authority to agents. Besides, if lunacy does not revoke the agent's authority, the inconveniences might be very great, as that authority never can be revoked during the whole period of the lunacy. As regards death operating as a rèvocation of authority, see Blades v. Free, 9 B. & Cr. 167, referred to in Smout v. Ilbery, 10 M. & W. 1. BRETT, L. J.

This case has stood over for a long time, principally on my account, in order that I might make every effort to see if I could determine it on a satisfactory principle. I confess to having found it one of the most difficult and least satisfactorily explained doctrines I have ever found in the English law.

It was a case tried before Mr. Justice Mellor, in which the plaintiff brought an action against the defendant for boots and shoes supplied to the defendant's wife, and the facts of the case, which are beyond dispute, are that the defendant, when sane, had held out that he had given to his wife absolute authority to act for him, and that he had held out to the plaintiff that he had given his wife such authority. I think it must be taken that afterwards the defendant became, not merely insane, but so insane that he could not have contracted on his own behalf, and so insane that if he had been seen by any one proposing to contract with him,

Shultz

such person must have seen at once that the defendant was so insane as really to have no mind at all. Under these circumstances, the defendant's wife ordered certain goods from the plaintiff, who had no notice of the defendant's lunacy. Her husband was confined for a time in a lunatic asylum, but afterwards recoved, and after his recovery this action is brought against him, and he defends it on the ground that the authority he had given to his wife to act for him was put an end to 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.

Two questions then arise-first of all, does such insanity put an end to the authority of the agentthat is, cause the mandate or authority to cease? One would have thought such a question as that would have been clearly decided on clear principles, and one naturally looked at the ordinary authorities on such matters-Story on Agency, the Scotch authorities, Pothier and other French authorities-but I have found no satisfactory conclusion arrived at.

If it had been held that such insanity did not put an end to the agent's authority, then that would decide this case, and the plaintiff would be entitled to recover on that ground; but, in my own individual opinion, such insanity does put an end to the authority. It was admitted that certain changes of status in the principal did put an end to the authority, as, for instance, if a woman be the principal who has appointed an agent, marriage puts an end to the authority of the agent, bankruptcy of the principal puts an end to the authority of the agent, death of the principal puts an end to the authority of the agent.

It has been said that the authority is put an end to because the person who would be liable is a different person from the original principal—that is to say, in a case of marriage, the husband would be the person to be bound, and in a case of bankruptcy the assignee, and in a case of death the heir or the executors.

If the change of person were the real ground on which we had to proceed, then it seems to follow that lunacy of the principal would not put an end to the authority until the lunacy had been established by a commission, so that there would be the committee to be made liable instead of the lunatic; but I cannot think that that is a satisfactory principle, for in a case of bankruptcy the assignees are bound to carry out any contract made before bankruptcy of the principal, though, they are different persons; in cases of death the executors or representatives of the dead person are bound to do so, and I see no reason why they should be in a different position from the principal. I cannot help thinking, therefore, that the true ground of the doctrine is that the agent, being a person appointed to act for the principal, from the moment the principal himself could not act according to law, the agent who represents him cannot act for him. If so, lunacy, to the extent of the lunacy in this case, lunacy so great that the principal can have no contracting mind, and so great that the person who contracted with him must see that, and if so, the principal was a person who could not contract himself, who could not do a legal act himself for want of mind, then, if the principle I have stated 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