.

hear parol evidence to that effect, on account tain uses, provided that the landsåso settled on of the Statute of Frauds and Perjuries. In the wife should be in lieu of her customary esAndrews v. Andrews, 8 Conn. 80, there was no tate. In Williams v. Chilty, 3 Ves. 545, leaseprovision extending beyond the life of the hold estates assigned in trust for the wife in husband; yet the widow was decreed to be lieu of dower were held to be a good equitable barred. The court say in this case: “There jointure. In Estcourt v. Estcourt, 1 Cox's is, perhaps, no principle better settled than Ch. 20, the wife was held barred of dower by a that any provision which an adult before mar- bond of the husband to the wife's mother, his riage agrees to accept in lieu of dower, intended wife being twenty-five years of age, will amount to a good equitable jointure." conditioned to settle £500 per annum on the Ia Shaw v. Boyd, 5 Serg. & Rawle 310, and wife for life, to be in full satisfaction of her Jones v. Powell, 6 Jobps. Ch. 194, we find a dower. In Tew v. Earl of Winterton, 3 Bro. C. recognition of the doctrine, that acceptance of C. 493, it appears that the court considered the a term of years or a sum of money, or a trust wife barred of her dower by a bond entered into estate, or any other kind of collateral satisfac- by the husband before marriage, to convey tion is a good bar in equity, and in Kennedy v. sufficient estates, in trust, to pay her in case she Mills, 13 Wend. 553, it was said that the wife survived him, an annuity of £600 in lieu of may, by her assent, before marriage, be barred dower. In Corbet v. Corbet, 1 Sim. & Stu. 612, by a pecuniary provision. In McCartee v. the widow was held barred by an indenture of Teller, 2 Paige, 518, the intended wife was an

the husband, before marriage, granting to infant at the time the contract was made. The trustees a yearly rent charge of £100 in bar of Chancellor said: 6. An adult female might in dower. See also Hervey v. Hervey, 1 Atk. 563. equity bind herself by an ante-nuptial agree- The dower is barred, whether the wife was, or ment to receive a simple pecuniary provision, was not, of age at the time of the settlement, although uncertain as to the time of its com- provided it received the assent of the parent or mencement, or as to the extent of its duration. guardian. Earl v. Drury, McCartee v. Teller, The text-books are full of allusions to the same Corbet v. Corbet, supra. effect. 4 Dane's Abr., c. 130. An adult woman 4. It must be in satisfaction of her whole · is said to be barred: By her acceptance of dower, and not of a part of it. Co. Litt. 36 b.; any provision, however small and precarious. Vernon's Case, 4 Co. 1. 1 Cruise Dig. 226: by her acceptance of any 5. It must be so expressed or averred, or by provision. Clancy on Husband and Wife;

necessary implication appear to be so made in by her agreement to accept any provision, satisfaction of dower. Co Litt. 36 b.; Vernon's however inadequate or precarious. 1 Roper Case, 4 Co. 1. on Husband and Wife, 476; by any terms 6. It must be made before marriage. 5 which she may think proper to accept. 1 Johns. Ch. 482. Washb. Real Prop., 319. She may accept, if Of all the conditions which the original legal she pleases, a chance in satisfaction of jointure prescribed, as requisites for barring dower, she agrees to. Williams Real Prop. | dower, only the last three have been retained 226.

as necessary conditions in the execution of a 3. It must be made to herself, and not to

valid ante-nuptial contract. The statutes of another in trust for her. In Vizard v. Long

the various States may have made some modiden, cited in Tinney v. Tinney, 3 Atk. 8, and

cations in these provisions, but they have all Earl v. Drury, 2 Eden, 66, by Lord Hard

substantially enacted similar clauses. wicke, who was counsel in the case, the bar of While it is seen that the courts have departdower was a bond by the husband, previous to

ed far from the requisites essential to constimarriage, agreeing to settle on the wife £14

tute a good legal jointure in the construction per annum for her livelihood and maintenance.

of ante-nuptial contracts, and have given them In Jordan v. Savage, Bac, Abr. Jointure, B 5, a liberal interpretation-Dominick v. Michael, 717, 2 Eq. Ca. Ab. 102, cited in 2 Edens Ch. 66,

4 Sandf. (N. Y. Sup. Ct.) 374 ; Gause v. Hale, and 2 Paige, 557, the wife was held barred of 2 Ired. (N. C.) Eq. 241; Smith v. Maxwell, I her customary free bench by a covenant of the Hill (S. C.) Ch. 101; Hutchins v. Dixon, 11 husband with trustees to settle his land to cer- Md. 29—they have always looked upon them

a

with the same circumspection as upon agree- what would be revolting to all the better feelments between persons standing in a fiduciary | ings of woman's nature; to have instituted inrelation to each other. They have been none quiries into the property and fortune of the the less guarded than relations existing be- betrothed would have indicated that she was tween parent and child, or guardian and ward, actuated by interested motives. She shrunk and circumstances attaching the least suspi- from the thought of asking a single ques. cion to those relations, will often render them tion. She executed the contract without hesitavoid and of no effect,

tion and without inquiry. She believed that he Did the contract comply with the provisions would propose nothing but what was just, and of the statute? Was it reduced to writing, she had a right to exercise that confidence. She and properly signed? Was it in lieu of dower, lived with him seventeen years, and, no doubt, and expressly stated in the deed? Was there

assisted largely in accumulating the fortune of any fraud or misrepresentation at the time,

fifteen thousand dollars, of which he died poswhich induced the wife to assent to its condi

sessed."

W. H. W. tions ? These are questions which present themelvesto the consideration of the court, and demand its careful attention. As to the compli- FRANCHISE - MEANING OF TERM, MEMance of the contract with the statute of frauds,

BERSHIP IN BOARD OF TRADE. what will be considered a sufficient part performance, to constitute an exception to the rule

BOARD OF TRADE v. PEOPLE. and take it out of the operation of the statute, is often difficult to determine. In 4 Strobh.

Supreme Court of Nlinois. (S. C.) Eq. 179, it is stated that a parol agree

(Filed at Ottawa, June 21, 1879.) ment in consideration of marriage, if made

The right of membership, in the board of Trade, an and sufficiently proved, will be sustained as an

organization for the transaction of commercial busi. ante-nuptial settlement; but where the only ness, is not a "franchise" in the strict sense in which proof shows that the understanding was made

that term is used in the statute, and therefore an ap

peal does not lie from the circuit court directly to the after marriage, it will not be sustained. In 3

supreme court, in a case where such a right is inCall (Va.) 384, a parol marriage contract, en

volved. tered into before Va. Stat. 1785, requiring marriage contracts to be recorded, was sus

Appeal from Cook County. tained against a subsequent voluntary convey

SCOTT, J., delivered the opinion of the court: ance. See, also, Houghton v. Houghton, 14

The relator having been expelled from the

Board of Trade of the city of Chicago, filed a petiInd. 505 ; Beard v. Griggs, 1 J. J. Marsh tion in the circuit court of Cook county for a (Ky.) 22.

mandamus, to compel that body to restore him to The case of Kline v. Kline, 57 Penn. St.

membership. On the hearing, a peremptory writ 120, is interesting as furnishing an instance of

of mandamus was awarded in accordance with the

prayer of the petition, and respondent brings the what was regarded as a material concealment

case directly to this court on appeal, notwithor fraud in the contract, setting it aside. The standing the law establishing appellate courts was judge of the lower court, in giving judgment,

in force when final judgment was pronounced in

the cause. said: “The woman was bound to exercise

The relator moves to dismiss the ap

peal ou the ground that this court has no jurisdicher own judgment, and take advantage of the tion to hear the errors assigned. opportunity that existed to obtain information; The decision of the motion made involves a conif she did not, it was her own fault. The par

struction of the statute under which the appeal ties were dealing at arms-length. He was not

was taken, that is supposed to confer the right and

which provides as follows: “ Appeals and writs of bound to disclose to her the amount or value

error shall lie from final orders, judgments or deof his property." Judge Sharswood reversed crees of the circuit courts

directly to the judgment, saying: “To say that she was to the Supreme Court in all criminal cases and in bound, when the contract was proposed, to

cases involving a franchise or a freehold or the

validity of a statute.” The practice act upon the exercise her judgment—that she ought to have

same subject provides that “ in all criminal cases taken advantage of the opportunity that ex- and in cases in which a franchise or a freehold or isted to obtain information, and that if she did

the validity of a statute is involved, appeals shall

be taken directly to the Supreme Court, in case not do so, it was her own fault, is to suggest

the party appealing shall so elect, excepting in

*

*

chancery cases.” As this is not a chancery suit, societies and associations are incorporated under it is maintained the appeal will lie, because it is general or special laws, but it was never underclaimed a “franchise” is involved.

stood that members of such societies or associaThe Board of Trade is a corporation organized tions possessed or exercised any franchise. That under a special act of the General Assembly, and they obtain what is most appropriately termed is a corporation organized solely for the purpose membership,” which means freedom of the priva of transacting commercial business and for no ileg s it confers, and nothing more.

That is preother purpose whatever. The relator was a mem- cisely the case at bar. Relator had membership ber of the Board and was entitled to all the bene. in this corporation and the freedom of its privilfits of membership. Whether relator was lawfully eges, whatever they were, but in no just sense did or illegally expelled is not a matter that need now he exercise any franchise granted to him or the be considered. The subject of the present litiga- corporation by the General Assembly. It is lawful tion concerns his membership and his right to be for any person or association of persons to transact restored to the enjoyment of its privileges. No commercial business without legislative grant for question is made that in any degree concerns the that purpose. A corporation for such purposes is validity of the corporation, nor has the litigation a mere convenience and nothing more. A member any relation to it. The inquiry, then, must be, of such a corporation exercises no other right in does the membership of the relator come within. the buying or selling of commodities than what the definition of a "franchise," as that term is used any citizen of common right may do; except as in in the statute? Our conclusion is it does not. the present instance, by virtue of his membership, This court in Chicago, &c. R. Co. v. People, 37 he may transact such business in a room belongIll. 547, adopted the definition of a franchise as ing to the corporation, which is a mere privilege given by Blackstone, that "it is a royal privilege or and not a franchise in the sense that term is used branch of the King's prerogative subsisting in the in the statute. One test that might well be applied, hands of the subject, and being derived from the is that in case of the non user or misuser by crown must arise from the King's grant," and the party owning membership in such a corporaadded that " corporate franchises in the American tion, an information would not lie against him at States emanate from the government or sovereign the suit of the people. It is not understood that the power; owe their existence to a grant, or as at people are prosecuting this case further than to common law to prescription, which piesupposes a give the writ which any citizen may invoke as a grant, and are invested in individuals or a body statutory right. Further than that, the people politic.” Precisely the same definition has been lend no aid to this prosecution. So far as the uniformly given of a franchise by text writers and General Assembly has granted a franchise to this courts of the highest authority. Angel & Ames on corporation, it is a matter of no public concern Corp., sccs. 4, 737; Bank of Augusta v. Earle, who owns a membership in the corporation. 13 Pet. 519; Morgan v. Louisiana, 3 Otto, 217; No franchise in the sense that term is used in City of Bridgeport v. New York, &c. R. Co., 36 the statute being involved in this litigation, the Conn. 255; People v. Utica Ins. Co., 15 Johns. motion made must prevail, and the appeal will be 358. In the Bank of Augusta v. Earle, it was said

dismissed. by the court: “ It is essential to the character of a SCHOLFIELD and DICKEY, J.J., dissenting: franchise that it should be a grant from the sover- We do not concur in the opinion. We think eign authority, and in this country no franchise that the word “franchise as used in the consti. can be held which is not derived from a law of tution and in the statute was not used in the strict the State."

technical sense, but in its broader and more popAs was said in City of Bridgeport v. New York,

ular sense. &c. R. Co., “ the term, franchise, has several sig. nifications, and there is some confusion in its use, but when it is used in a statute or elsewhere in the BOND STIPULATION FOR ATTORNEY'S law, it is generally, if not always, understood as FEES IN CASE OF ACTION UPON. a special privilege conferred by grant from the State or sovereign power, as being something not WILSON SEWING MACHINE CO. V. MORENO.

to the citizen of common right.” In Morgan v. Louisiana, the court very justly remarked that much confusion of thought had arisen

United States Circuit Court, District of Oregon,

August, 1879. from attaching a vague and indefinite meaning to the term, franchise." It must have been in this restricted sense

A stipulation in a bond to pay a reasonable attor

ney's fee to the plaintiff, in case a promissory note is “ franchise was used by the General

not paid, or other contract is not performed according Assembly in the statute we are considering and to its terms, and the party entitled to demand such not in that broad sense contended for. No doubt performance is compelled to enforce it by law, is just the word " franchise " is sometimes used as syn

and valid. onymous with privileges and inmunities of a personal character, but in law, its appropriate mean- DEADY, J. ing is understood to be something which the citi- On September 1, 1877, the defendant, Moreno, zen can not enjoy without legislative grant. Many with four others as his sureties, executed and deof our religious, benevolent, literary and scientific livered a bond to the plaintiff in the penal sum of

belonging

the term